“Civility costs nothing and buys everything.”
—Mary Wortley Montagu
Shortly after I passed the bar exam in the fall of 1982, I met with two senior partners of my new employer—a medium-sized private law practice—to discuss the firm’s rules on professionalism. Looking back, I view this meeting as a very timely, basic introduction to rules of civility in my nascent litigation practice. At the time, however, it was an eye-opening lesson to the complexities of personal interaction in an ever-changing profession.
The partners emphasized civility and deference to seniority. They explained that an attorney’s reputation is paramount—and that I should carefully protect my reputation and, concomitantly, that of the firm by being honest, courteous, and professionally competent in all interactions with opposing counsel and court personnel. If I crossed the line of civility with opposing counsel, word of my misdeed would spread like a brush fire in the wind. Similarly (and presciently, I might add), I was admonished that at some point in my future litigation practice, clerks in the prothonotary’s office may be critical to a filing deadline, so treat them with the same respect given to counsel. If circumstances require an in-person meeting with opposing counsel, the less-experienced lawyer (referencing me, of course) should always offer to meet at the office of the more senior lawyer or otherwise defer to the senior lawyer’s location preference.
Our discussion also included guidance on communications with the court. For example, they advised me to reference an order as “the court’s order” or “your Honor’s order” and conclude correspondence with “Respectfully submitted.” In court, always shake hands with opposing counsel at the beginning and the end of every hearing, stand as soon as the judge enters the courtroom, attempt agreement on matters of procedure and scheduling, and avoid seeking court intervention for mundane requests that should be resolved by counsel. I took copious notes during this meeting and took their advice quite seriously.
I would be remiss if I did not mention that my meeting also included a description of ethical billing practices and the client appreciation curve. Revenue generation has always been a part of the practice of law. Lawyers in the private sector generate income by virtue of expertise in various practice areas, and timely payment of fees is the sine qua non of a successful law firm. Productivity, client generation, and billable hours are appropriate measuring sticks for compensation. Accounts receivable must be regularly analyzed and addressed. Managing partners have long pursued a law firm structure that maintains low overhead with streamlined billing practices and profit incentives. In other words, to survive, private law firms must operate as business entities.
My law firm was typical. I had an annual billable hour goal of 1800 hours and pro bono expectations of another 150 hours. Associates were expected to network and appropriately establish themselves in their respective communities. The firm encouraged both volunteer work and bar association activities. In sum, the firm had a holistic view of associate development, guiding us to immerse ourselves professionally both in our work and in our communities. I became a partner in 1989 and endeavored to grow my commercial litigation practice with the help of partners in transactional areas of the firm whose clients frequently needed litigation assistance. As my litigation practice grew, I received greater responsibility for the management of associates, which provided me with opportunities to pass along those early lessons on professionalism in the business of law.
In the 1990s, our profession suffered a crisis of incivility, capturing the attention of bench and bar. Judges observed a decline in professionalism and expressed concern about its ethical implications. See, e.g., Hon. Sandra Day O’Connor, Professionalism, 76 Wash. Univ. L.Q. 5 (1998); Hon. Warren E. Burger, The Decline of Professionalism, 63 Fordham L. Rev. 949, 953 (1995). Law review articles considered the merits of emerging “Rambo tactics,” which treated civil litigation as war and opposing counsel as enemy combatants. See, e.g., Jean M. Cary, Rambo Depositions: Controlling an Ethical Cancer in Civil Litigation, 25 Hofstra L. Rev. 561, 563 (1996); Judith S. Kaye, Lawyering for a New Age, 67 Fordham L. Rev. 1, 8 (1998). Bar associations and individual courts, including my own district court, hurried to promulgate new standards and guidance. See Christopher J. Piazzola, Comment, Ethical Versus Procedural Approaches to Civility, 74 Univ. Colo. L. Rev. 1197, 1199–1200 (2003); see also U.S. Dist. Court for the Middle Dist. of Pa., Local Rules of Court, at app. C (2014).
Law firms, meanwhile, began to computerize files, maintain websites, and forgo the formality of letterhead for the convenience of email. See Tracey Baetzel & Carl W. Herstein, Virtual Memory: Looking Back at the Changing Relationship Among Lawyers, Law Firms, and Technology, 77 Mich. Bar J. 422, 425 (1998). Lunch meetings became conference calls. Long-standing rules that I had learned as a young attorney about seniority, handshakes, and whose office would be the forum for a meeting all faded in importance. The practice of law looked a lot different the day I became a judge from what it had been the day I became an attorney. More importantly, the practice of law today looks very different from only a few years ago.
The business of lawyering continues to evolve with advances in technology, promoting efficiency in serving clients, processing information, and resolving disputes. But with new paradigms come new challenges; and a rapid shift away from in-person legal work has revived concern for standards of professionalism, courtesy, and how we interact with one another. See, e.g., Gary L. Gassman et al., Defining Civility as an Attorney, 55 Tort Trial & Ins. Prac. L.J. 557, 570–72 (2020). While I am not compelled to frame this discussion in the language of a renewed crisis, a sense of thoughtful alarm would not be—if you’ll pardon the phrase—out of order.
The scale of the new normal is undeniable. A recent ABA survey found that a vast majority (about 87 percent) of workplaces allow lawyers to work remotely to some extent. Meanwhile, 30 percent of lawyers reported working from home almost all the time, and 44 percent of young lawyers indicated that they would consider leaving their current jobs for a greater ability to work remotely. See Stephanie A. Scharf et al., Practicing Law in the Pandemic and Moving Forward: Results and Best Practices from a Nationwide Survey of the Legal Profession (Am. Bar Ass’n 2021). In response to the COVID-19 pandemic, American courts at every level conducted proceedings using videoconferencing applications like Zoom and Webex. Many jurisdictions have altered their rules to allow for remote proceedings on a more permanent basis. Face-to-face interaction, it seems, is no longer an essential component of practicing law.
What do we risk in this brave new world? For one thing, the absence of personal interaction and connection opens the door to informality and ultimately unhelpful (if occasionally entertaining) expressions of frustration. In the old days, discussions about settlement prospects or a discovery dispute ordinarily would have been handled face-to-face over a cup of clam chowder or in a law firm’s conference room. Today, it is commonplace for such exchanges to take place online, often with extempore, informal, and ambiguous language.
As a trial judge, I have been exposed to increasing informality in all manner of communications between counsel. Oftentimes, discovery disputes frame the issues with an exhibit of email threads that reflect mutual frustration more than problem-solving dialogue. Many emails lack basic courtesies or proper grammar, let alone insight. My view is that the pressure of law practice, together with the ease of instantaneous communication, cultivates informality and discourtesy. I do not mean to suggest that in-person interaction alone guards against all manner of unprofessional behavior. All the same, we are bolder behind keyboards than we are in courtrooms, and more vocal with the imagined security of a mute button than we would be otherwise. Our brains literally function differently during online exchanges than they do during face-to-face conversations. See Bill Hathaway, Zooming in on Our Brains on Zoom, YaleNews (Oct. 25, 2023). New research casts what some might dismiss as a minor pleasantry—the handshake—as something “deeply biological in origin,” a shared practice with our closest evolutionary relative, the chimp, and an inimitable way to build connection. See Jake Kerridge, The Handshake Is Deeply Biological—We Can’t Let Covid Kill It Off’, Telegraph (Mar. 28, 2021). One might wonder how the legal profession will fare in adapting to this increasingly remote paradigm.
Will the business of law supplant all remnants of professionalism? I take great comfort in the fact that ours is an adversarial system of justice. Good-faith negotiation, respectful argument, and civil discourse are more than passing strategies or tools to be wielded in one instance and then discarded in the next. They are the fundamental building blocks of a successful law practice in a system that aspires to resolve matters under the rule of law. These fundamentals are the key to effective lawyering, and they will outlive both current and future evolutions of law firm business practices driven by technological intervention and economic pressures. In a nutshell, adherence to basic tenets of professionalism and civility makes you a better lawyer.
To the members of bench and bar who remember what it was like to practice before the world of virtual hearings and rapid-fire emails, I encourage you to reflect upon what we have lost and what we have maintained. True, changing that meeting with opposing counsel next week from a Zoom call to a lunch might seem frivolous. It might even take more time out of your day. But think about what you might gain with an in-person exchange of perspective. A more personable interaction could mean a new or improved professional connection or simply a more enjoyable working relationship; it could mean some insight into the case that would not otherwise be communicated by ones and zeros; or, admittedly, it could just mean a cup of clam chowder. Until we remember what it was like to sit as lawyers across the table from one another, and to see our colleagues as more than a talking head on a computer screen or a disembodied voice on speakerphone, it is difficult to say just how impactful this small gesture could be.
To the young lawyers, for whom the remote-work environment is all you know, a word of caution. Law is not a profession about convenience and reflexive decision-making. It is deliberative, yeoman-like work inescapably bound up in the complexity of human relationships. Embrace that. Master that. Think twice and three times before you press “Send.” Beware the all-too-common temptation to shed your sense of civility and professionalism in the digital world because it will follow you back into the real world. I promise that you will be a better advocate for it.
