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Litigation Journal

Summer 2024

Civility Versus Zealous Advocacy: An Attorney’s Duty

Sonja Arndt

Summary

  • All attorneys should strive for civility, but civility for the sake of civility alone can be problematic.
  • Civility should not be a shield for those who wish to unethically prioritize their own reputation and career.
  • Until there is a clear legal definition of what civility is and isn’t, attorneys must prioritize their ethical duties under the Model Rules of Professional Conduct. 
Civility Versus Zealous Advocacy: An Attorney’s Duty
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Negotiations can be adversarial. During times of hostility, should attorneys prioritize civility over zealous advocacy? Moreover, which is the better strategy? We have all heard the saying “you catch more flies with honey,” but if more flies are caught using apple cider vinegar—which emits a sweet smell although in actuality it is a sour substance—shouldn’t we use apple cider vinegar?

It is without question that attorneys should strive for civility, but the reality is that the legal profession is based on conflict. In their simplest form, cases start with a dispute, either civil or criminal, and attorneys represent individuals or entities on opposing sides. It is through the adversarial process that an outcome is reached: a person is guilty or innocent, or a person is liable or not. This naturally creates a conflict that attorneys work to resolve either through negotiations or the court system. Although most of these conflicts can be resolved through civil negotiations (e.g., agreeing to discovery extensions, limiting motion writing, or remaining polite during negotiations), at times negotiations can be adversarial and require tenacious and zealous representation that is uncivil (e.g., filing a surprise motion, using a stern voice in conversations, or refusing to make a special accommodation or request).

Zealous Advocacy Above Civility

In a profession where conflict is foundational and attorneys are given the privilege of representing clients, they should prioritize zealous advocacy above civility when the two are in conflict.

Zealous representation is the cornerstone of lawyering and a requirement for all attorneys under Model Rule of Professional Conduct 1.2. Zealous representation means lawyers should “take whatever lawful and ethical measures are required to vindicate a client’s cause or endeavor.” Model Rules of Prof’l Conduct R. 1.3 cmt. 1 (Am. Bar Ass’n). Civility, on the other hand, is an ethical requirement for attorneys in only a few states. Moreover, civility is subjective, which can cause ethical issues for attorneys (e.g., placing one’s own interest above the client’s), while also furthering conscious and or unconscious demographic biases (e.g., women should be softer spoken than men).

A handful of states require that attorneys take an oath of “civility,” and some states have amended their rules to make incivility a basis for discipline. Florida, Michigan, New Mexico, South Carolina, and Utah all require attorneys to take an oath of civility. See R. Regulating Fla. Bar 4-3.4 (2024); Mich. Ct. R. 8.126 (2024); N.M. Bar Admission R. 15-208 (2024); S.C. App. Ct. R. 402 (2024); Utah Sup. Ct. R. 14-806 (2020). Other states, like California, require attorneys to take a similar “civility oath,” although they do not use the word “civility.” California’s oath instead requires attorneys to act with “dignity, courtesy, and integrity.” Cal. R. Ct. 9.4 (formerly Rule 9.7). Interestingly, California’s oath omits part of the definition of civility, which encompasses not only courtesy but also politeness. As of January 1, 2024, California also requires attorneys to take one hour of continuing legal education training addressing civility in the profession. Cal. R. Ct. 3.110.

What Is Civility?

Attorneys have defined civility as “a code of decency that characterizes a civilized society.” Jayne R. Reardon, Civility as the Core of Professionalism, Bus. L. Today (Sept. 18, 2014). This definition raises the question of what society? Undoubtedly, the standard for civility changes based on various demographics. Raised in Tennessee, and having served my first and only detention in third grade for incivility for failure to say “ma’am” after “yes,” I expect that if I had been in California at the time, my record would be detention free. Thus, civility can look different based on jurisdiction. There are actions taken by attorneys that are unquestionably uncivil—lying to the court or counsel, defaming opposing counsel, throwing coffee on counsel—but these actions violate other civil and criminal laws. Absent these civil or criminal violations, what does civility look like?

Merriam-Webster and Oxford dictionaries both define civility as politeness. Civility, Merriam-Webster Dictionary (11th ed. 2021); Civility, Oxford Dictionary Online. Politeness is unquestionably in the eyes of the beholder and can mean different things to different people based on culture, jurisdiction, gender, age, and race. Take, for example, a strongly worded email written by a partner and not an associate. The partner’s email would likely be viewed as firm and strong, while the same email from the associate would likely be viewed as rude and out-of-line; thus, age and experience can influence what civility looks like. Notably, in 2007, the Illinois Supreme Court Commission conducted a study in which attorneys reported being the victim of strategic incivility (e.g., deliberate misrepresentation of facts, not agreeing to reasonable requests for accommodation, indiscriminate or frivolous use of pleadings, and inflammatory writing in briefs or motions). Reardon, supra. It would be important to know what the victims considered a “reasonable request” or what made the writing “inflammatory.” Brief and motion writing is largely taught in law school, with different schools producing different writers, some probably more inflammatory than others. For me personally, law school taught me to be argumentative in my writing, while the U.S. Department of Justice taught me to be factual. Again, incivility is in the eye of the beholder based on lived experiences.

Relying on the dictionary definitions of civility, there are two dangers associated with an attorney’s prioritizing civility (politeness) above zealous advocacy during negotiations. First, it could conflict with an attorney’s ethical duties to the client under the Model Rules of Professional Conduct. Second, it could hurt the profession based on conscious or subconscious demographic biases.

The Dangers of Prioritizing Civility

Civility is generally good for an attorney’s career and reputation, but is it always good for a client? Take, for example, interrupting the judge. Everyone would agree that interrupting a judge, in concept, is uncivil and rude, and should never be done. In reality, though, there may be times when one has to interrupt a judge to ensure justice is being served, even if it means tarnishing one’s own reputation. Part of my duty as a former prosecutor was to listen to the facts of a plea before the defendant entered it. Several times there were factual errors that had to be corrected before the defendant pleaded, requiring me to, as politely as I could, interrupt the proceeding and correct the record. Moreover, three times in my career, the wrong defendant was brought out and the judge moved so rapidly with a detention or plea hearing that interruption was the only option to stop the court from acting on the wrong person. Sometimes it was appreciated (usually by more junior judges); other times it was not. Later in my career, as I supervised junior trial attorneys in court, the hardest part was getting them to understand this concept: Justice (arguably a prosecutor’s client) must come before civility. Similarly, the law and our ethical obligations need to come before civility. In a perfect world, we could do it all—be ethical, follow the law, and maintain civility. However, on the rare occasion civility conflicts with either the law or ethics, it needs to be set aside.

Other attorneys have disagreed with me and argued that specific factual corrections are nitpicking and that as long as the record is “good enough,” there is no need to disrupt the proceedings, and doing so is rude and uncivil. The reality, though, is that a trial attorney has an enormous burden to create and preserve an accurate trial record. The facts matter. No attorney should risk a case being overturned because he or she prioritized civility. Not only would that be an injustice for the client; it would waste the court’s resources and is not best practice. In these instances, our clients need to come before our own reputation or that of the profession.

The second danger that comes with prioritizing civility during negotiations is that civility is subjective and can (1) preserve and further harmful demographic stereotypes within the profession and (2) limit effective lawyering.

Consider a woman who is unwavering and stern during negotiations. Women who take an unyielding position and raise their voices during negotiations may be viewed as rude, crass, and emotional. Men who engage in similar behavior are usually applauded as strong and determined. The legally undefined concept of civility can maintain and further these sorts of double standards in the profession. These are not just hypothetical issues. In 2018, a federal judge banned a female assistant U.S. attorney (AUSA) from his courtroom for life due to an error she had made resulting in the dismissal of a case (the judge claimed the attorney lacked “integrity”). It was later discovered that the judge had told that same AUSA that the legal profession was easier when only men were allowed to practice. It is incidents like these that need to be examined to ensure that “civility” is not a tool used to repress specific demographics.

Prioritizing civility can also limit one’s ability to be an effective lawyer. When I was a prosecutor, I educated school-age children about sexual predators and emphasized the importance of their voices. When someone has a smaller physical build (because of age, gender, etc.), is soft-spoken, or has more refined mannerisms, their voice, when raised, can become an incredibly powerful tool. The contrast between a smaller person using a louder voice can be extremely effective, and it would be unfortunate to eliminate this tool in the interest of civility. If a voice raised during negotiations is viewed as an act of incivility, it may limit an attorney’s ability to effectively advocate based on demographics.

The reality is that civility can be a slippery slope, and at times it can be used as a vehicle for repression or for mandating conformity to old, outdated standards. Thus, although civility should be a goal for all attorneys, it should not be prioritized above our ethical duties of zealous advocacy.

During my time as a prosecutor, I often found myself on the receiving end of incivility (e.g., late discovery, lack of transparency, disparaging theatrics before a jury, and at times swearing and interrupting during negotiations). I would often lament that counsel was rude, disrespectful, and uncivil. Above all else, I took this behavior as a personal affront. Usually, however, it had nothing to do with me. These were last-resort tactics to avoid going to trial and getting a verdict or tactics used by a defense attorney trying to create an appealable record. It was zealous advocacy. In mandating representation, the framers of the Constitution envisioned someone who would fight for a client, not just someone who would smile and nod and be civil. Did I feel this way when opposing counsel required me to submit a filing arguing that giving birth to my first child was good cause for a trial continuance 12 hours before she was born? No. I can now see, however, that the attorney was merely hoping the case would be dismissed, and I cannot fault her for that.

I have learned to appreciate and respect zealous advocacy even more over time. I have worked with incredibly polite and civil defense attorneys (for example, attorneys who were accommodating of my schedule, waived their client’s rights to avoid motion writing, and stipulated to debated facts). Although I appreciated the decreased workload their civility made possible, at times the civility went too far. For example, an opposing counsel, who was a good friend of mine, once called the court and said they would not be present and I could handle the detention matter without their appearance. I suggested that stand-in counsel be present, since the defendant was not waiving his right to counsel, but both the judge and opposing counsel disagreed, saying it would delay the proceeding and cause other inconveniences. I made clear that I could not proceed with the hearing, engaging in the “uncivil” act of arguing with the judge. In that moment, my reputation came second to preserving the constitutional rights of the defendant, even though he was not my client. If he had someone who was zealously advocating for him, he would not have been in that position. This type of scenario arose more times throughout my career than I would like to remember. It was these experiences, where I had to act as both the prosecutor and the defendant’s attorney, that made me respect and appreciate the (at times) uncivil, yet zealous, defense attorneys.

All attorneys should strive for civility, but civility for the sake of civility alone can be problematic. Civility should be neither a shield for those who wish to unethically prioritize their own reputation and career above what is in the best interest of their clients, nor a tool for oppression, limiting certain demographics within the legal field. Until there is a clear legal definition of what civility is and isn’t, attorneys must prioritize their ethical duties under the Model Rules of Professional Conduct and zealously advocate for their clients, even if it requires them to engage at times in adversarial and impolite acts.

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