Defining Civility as an Attorney

Civility Defined

According to Merriam-Webster, the term civility is defined as civilized conduct or a polite act or expression.¹ Oxford Dictionary defines the term as “[f]ormal politeness and courtesy in behaviour or speech” or “[p]olite remarks used in formal conversation.”² These definitions are helpful in understanding the mechanics of the term, but what exactly falls within the purview of acting with civility?

The Model Rules of Professional Conduct state general notions that attorneys should be fair to opposing counsel, refrain from engaging in prejudicial conduct toward the administration of justice, and maintain the decorum of the tribunal.³ In addition, some states and local bar associations have adopted their own standards for civility that are more specific or detailed than the Model Rules.⁴ For example, California has adopted Attorney Guidelines of Civility and Professionalism, which is a set of voluntary guidelines and goals regarding best practices of civility in the legal profession.⁵ The District of Columbia Bar has adopted Voluntary Standards for Civility for attorneys to use as a guide for acting with civility in their legal practice.⁶ And New York has adopted Standards of Civility as well as Rules of Professional Conduct.⁷

The most common themes among a majority of state civility codes include

(1) recogniz[ing] the importance of keeping commitments and of seeking agreement and accommodation with regard to scheduling and extensions; (2) be[ing] respectful and act[ing] in a courteous, cordial, and civil manner; (3) be[ing] prompt, punctual, and prepared; (4) maintain[ing] honesty and personal integrity; (5) communicat[ing] with opposing counsel; (6) avoid[ing] actions taken merely to delay or harass; (7) ensur[ing] proper conduct before the court; (8) act[ing] with dignity and cooperation in pre-trial proceedings; (9) act[ing] as a role model to the client and public and as a mentor to young lawyers; and (10) utiliz[ing] the court system in an efficient and fair manner.⁸

Overall, civility is an important concept within the legal profession that should be considered when acting as an advocate and counsel. Civility can be defined simply as acting with formal politeness and courtesy when communicating or working with opposing parties, opposing counsel, clients, and outside parties.

Actions Not Rising to the Level of Civility

Although the term civility is used often, there are some common misconceptions as to what constitutes civility when it comes to conducting business within the legal profession.

First, civility is not the same as simply having good manners.⁹ Good manners could be considered a component of acting polite or courteous, but this alone does not constitute acting with civility. It is one thing to be a polite person, but it is another to act politely within the profession when dealing with difficult clients or opposing counsel in an adversarial environment. Although it may be considered uncivil to act with impoliteness, the concept of being polite is not the only component to achieving civility within the profession.

Second, liking someone is not within the purview of acting with civility. Civility is not demonstrated merely by showing amity toward those with whom you interact in your practice. According to author Jayne R. Reardon,

[c]ivility compels us to show respect even for strangers who may be sharing our space, whether in the public square, in the office, in the courtroom, or in cyberspace.¹⁰

However, the absence of criticism toward another does not automatically mean that you are acting with civility.¹¹ It can be argued that attorneys can act with civility as long as they do not vocalize their criticism of another person. Yet, civility is more focused on professionals’ conduct than on their negative or critical behavior toward someone else. Therefore, just because attorneys do not have critical thoughts against another does not mean that they are acting with civility.

Finally, attorneys are not necessarily acting with civility just because they are in agreement with others. Rather, “underlying the codes of civility is the assumption that people will disagree.”¹² This is further emphasized within the adversarial nature of the legal profession. Opposing parties can act with civility toward one another while disagreeing on their theories of liability or fault within a case. The nature of the legal profession is surrounded by disagreement in opinions when it comes to advocating for opposite sides of a case. Thus, civility does not mean agreeing with someone; instead, civility is the ability to act with politeness and professionalism when two parties disagree with one another.

How Civility Applies to the Legal Profession

As stated above, many states have adopted their own mandatory or voluntary standards or codes of civility to practice within the legal profession. In addition to these standards, there are ethical obligations that all attorneys must abide by in order to practice law.

Model Rules of Professional Conduct. One of the requirements for becoming an attorney is passing the Multistate Professional Responsibility Examination (MPRE), an exam designed to measure the knowledge and understanding of established standards related to a lawyer’s professional conduct. Each state has adopted a minimum score that an aspiring attorney needs to achieve on the exam in order to be admitted to the state’s bar.

The MPRE tests, among other things, knowledge of the Model Rules of Professional Conduct. The Model Rules are adopted, in one form or another, by each state in order to ensure that attorneys are held accountable for acting in a professional manner. These rules specifically hit the key points and concepts of ethical standards that attorneys must follow within the legal profession.

Although civility is not expressly defined, there are some specific rules that pertain to civility among attorneys within the profession. For instance, Rule 3.3 requires an attorney to act with candor toward the tribunal and avoid knowingly making false statements, failing to disclose controlling legal authority, and knowingly offering false evidence.¹³ Similarly, Rules 4.1 through 4.4 require truthful communication between parties and opposing counsel and acting appropriately when communicating or dealing with unrepresented or third parties.¹⁴ In addition, attorneys who are supervisory lawyers or partners within a law firm are held to specific standards of conduct under the Model Rules.¹⁵ Overall, these rules touch on civility and govern attorneys’ ethical responsibilities in their legal practice.

Zealous advocacy versus acting without civility. In the legal profession, the Model Rules of Professional Conduct and any adopted rules or guidelines of civility contain the standards of conduct that attorneys are expected to follow. Because these rules and guidelines are in place, attorneys often violate these standards when trying to act as zealous advocates for their clients. That being said, one common question that arises is this: “How can an attorney act with zealous advocacy for his client while also acting with civility?”

The Model Rules specifically endorse zealous advocacy. In particular, the comments in Rule 1.2 state that an attorney

should pursue a matter on behalf of a client despite opposition, obstruction or personal inconvenience to a lawyer, and take whatever lawful and ethical measures are required to vindicate a client’s cause or endeavor. A lawyer must also act with commitment and dedication to the interests of the client and with zeal in advocacy upon the client’s behalf.¹⁶

Zealous advocacy is not often a problem for lawyers. As legal advocates, attorneys are inclined to argue for their clients and support these arguments with valid and persuasive legal theories.

However, when advocating on another’s behalf, lawyers easily can get caught up in the arguments and zealously try to advocate that their particular point of view is the correct and more reasonable viewpoint. This is where it can become tricky: it is challenging to act as a strong advocate while also acting with civility. The Model Rules of Professional Conduct address this problem, although without specifically using the term civility:

A lawyer is not bound, however, to press for every advantage that might be realized for a client. . . . The lawyer’s duty to act with reasonable diligence does not require the use of offensive tactics or preclude the treating of all persons involved in the legal process with courtesy and respect.¹⁷

Although these rules are informative, the question that remains is this: “What are the limits of zealous advocacy?” In other words, what are the indications that counsel has gone too far in challenging a court’s ruling or an opponent’s position?

The Model Rules, as mentioned, offer no specific definition of or standards for civility within the legal profession, but they do offer some guidance on the line between zealous advocacy and failing to act with civility. For example, Model Rule 3.4 states that an attorney should act with fairness and courtesy to opposing parties and counsel by not unlawfully obstructing access to evidence, not falsifying evidence, not knowingly disobeying obligations under the rules of the court, and not making frivolous discovery requests.¹⁸ This rule promotes acting with civility toward opposing parties and counsel in the context of trial procedures, but the concept of civility also is applicable in all other practices of law, including negotiating corporate transactions and mediating settlement agreements prior to trial.

Clearly, there is no single definitive answer to the question of the line between zealous advocacy and incivility. It will serve lawyers well to remember that zealous advocacy does not require incivility. Attorneys always should consider how they would like to be treated and perceived. Clients, judges, and opponents will notice the difference between true zealous advocacy that is tempered and reasonable and attorneys who are difficult, rude, inconsiderate, overly critical, condescending, or standoffish. Attorneys who are perceived as kind, bright, considerate, and reasonable while being zealous advocates will reap the benefits of such conduct with their reputation in the legal community and at the courthouse.

Consequences for Acting without Civility

Acting with civility as an attorney is an important and essential part of the job. In fact, in multiple states, judges are inclined to give various sanctions to attorneys who clearly act without civility or professionalism. These sanctions are meant to deter this type of behavior within the profession.

Misconduct under the Model Rules. Although civility is not mentioned explicitly in the Model Rules of Professional Conduct, Model Rule 8.4 outlines what constitutes professional misconduct.¹⁹ Actions that constitute misconduct include violating the Model Rules, committing a criminal act, engaging in conduct that counts as discrimination or harassment, engaging in dishonesty or deceit, and engaging in conduct that is prejudicial to administrative justice.²⁰ Additionally, it is considered professional misconduct for lawyers to state or imply that they have the “ability to improperly influence a government agency or official to achieve results that violate the [Model Rules]” and for lawyers to help a judge in conduct that breaches judicial conduct rules.²¹ Although these are the listed actions that constitute misconduct, judges and state bars may deem it necessary to give sanctions or take disciplinary measures for actions not specifically listed within this rule or any of the Model Rules.

Examples of sanctions. Courts recognize the importance of practicing civility within the legal profession, and courts in every jurisdiction have the power to impose sanctions or disciplinary measures to deter inappropriate conduct and incivility within the legal profession. A few recent examples of sanctions granted for incivility vary from purely monetary sanctions to suspension from the practice of law.

Monetary sanctions have been invoked from coast to coast. One case involved a magistrate judge in California who imposed a monetary sanction against an attorney for spilling coffee in the direction of opposing counsel.²² In that case, counsel for both sides were aggressively arguing in a deposition and insulting each other. These actions were relayed to the magistrate judge presiding over the case, who imposed a $250 sanction for damages caused during the deposition. A monetary sanction also was imposed in a New York case: a magistrate judge ordered a sanction that covered deposition fees when an attorney frivolously made 600 objections in one deposition.²³ There, the judge recognized that the plethora of objections during this deposition was an unnecessary waste of time and resources for all parties involved. And in Illinois, a U.S. district judge imposed sanctions that included not only payments but also mandatory anger-management training when an attorney made false accusations and carried out an unhinged attack on an expert witness.²⁴

Beyond monetary sanctions, there is a more severe sanction that judges could impose on attorneys for acting with incivility: suspension. For example, in one recent instance, the New York Appellate Division, First Department, panel issued a four-month suspension from the New York Bar and one year of mandatory counseling for a prominent real estate attorney who acted with “inappropriate litigation behavior” on multiple occasions.²⁵ In Florida, the supreme court ordered a two-year suspension for an attorney’s rude and antagonistic behavior throughout a civil case.²⁶ Although some argued that this was a severe punishment, the Florida Supreme Court noted that the attorney committed multiple violations of the state’s rules of professional conduct and acted unprofessionally and inappropriately on several occasions. In another case, the Supreme Court of South Carolina imposed a 90-day suspension and required the violating attorney to complete a legal ethics and professionalism program due to his uncivil and unprofessional behavior.²⁷ In this instance, after multiple warnings about incivility, the Supreme Court of South Carolina felt that the attorney needed to be reprimanded for his uncivil actions.

These are just some of the multiple examples of judges and state bars acting to prevent incivility within the profession. These sanctions are created to prevent inappropriate and unprofessional behavior among lawyers. With the potential for sanctions in mind, it is important to act strategically with civility and professionalism when serving as an advocate and counselor. Attorneys need to think about the consequences of their actions when representing themselves, their law firms, and their clients.

Sanction review. The New York Supreme Court, Appellate Division, often reviews decisions made by the referee of a Sanction Hearing to determine whether the sanctions or disciplinary measures administered were appropriate under the circumstances. The Supreme Court of New York has held that

[o]n a motion to affirm a referee’s report and recommendation, this Court must review the Referee’s report and determine whether the Referee properly found, “by a fair preponderance of the evidence, each essential element of the charge[s].”²⁸

There are numerous examples of the Supreme Court of New York analyzing the decisions made by the Attorney Grievance Committee and referees of the ensuing Sanction Hearings in order to ensure that the proper sanction is given for misconduct.²⁹

For example, in In re Zappin, the court affirmed the referee’s order to disbar an attorney who continuously violated multiple rules of professional conduct and performed egregious acts of misconduct over a four-year period. Some of these actions included

his repeated acts of domestic violence toward his wife; his false testimony at the custody trial; his introduction of falsified evidence in the form of altered text messages; his presentation of misleading testimony through his expert witnesses; his flouting the directives of three judges; his setting up of a fake website about the attorney for the child in the custody action and posting derogatory messages about her on it. . . .³⁰

The court in this case believed that it was appropriate to order the attorney to be disbarred according to the guidelines and disciplinary precedent set in the jurisdiction.

In In re Giorgini, the court reevaluated the public censure sanction and determined that the attorney’s sanction should be a three-month suspension instead.³¹ In this case, multiple counts were evaluated by the court, the Attorney Grievance Committee, and the referee for the Sanction Hearing.³² The court ultimately concluded that a more severe sanction was necessary due to the attorney’s specific misconduct.³³

However, courts also understand that the severity of disciplinary sanctions must be appropriate and reasonable for the identified misconduct. In In re Steinberg, the panel of judges denied the suggested two-year suspension for an attorney in conformity with precedent within the jurisdiction.³⁴ In this case, the respondent, Jonathan Steinberg, was sanctioned two times prior for frivolous litigation conduct and sending an inappropriate ex parte email to a judge presiding over one of his cases.³⁵ Although he was found guilty of violating multiple rules of professional conduct, the court, relying on previous cases, determined that the proposed sanction was too severe under the circumstances.³⁶

Furthermore, regardless of sanctions imposed on a defendant elsewhere, the Supreme Court of New York has been inclined to impose the sanctions that its judges believe are appropriate in specific circumstances. For instance, in In re Foo, the court held that a public censure was appropriate for an attorney who was sanctioned by British Columbia for misconduct.³⁷ The court held that the actions performed by the attorney in British Columbia did not constitute misconduct that required more severe sanctions than a public censure in the New York jurisdiction.³⁸

These cases exemplify the analysis that courts use to administer the most appropriate sanctions or disciplinary actions for practicing attorneys. It appears that the goal for courts in this jurisdiction is to deter inappropriate behavior without imposing sanctions that would be too severe for the misconduct performed.

Conclusion

A lawyer’s professional conduct goes hand in hand with that lawyer’s reputation for excelling in practice. In today’s world, “one uncivil outburst may haunt an attorney for years; and reputations may be built and destroyed quickly.”³⁹ Clients and others notice a lawyer’s communication style and respect for the client, other parties and lawyers, and the court—and any person who has contact with a lawyer can comment on that lawyer’s performance and professionalism through social media forums or on websites that specifically rate and rank attorneys. Research shows that lawyers who exhibit civility and professionalism get higher ratings and are viewed as more effective lawyers.⁴⁰ Thus, incivility, in all likelihood, will have an adverse effect on a lawyer’s reputation and, ultimately, that lawyer’s livelihood. Accordingly, all lawyers should refocus some of their efforts on increased civility in the profession.

Lawyers should think about the meaning of civility and practice the old adage of treating others how they would want to be treated. Today’s world facilitates greater client influence and requires increased transparency from lawyers. Thus, civility and demeanor are more important than ever in building relationships, credibility in legal practice and the courtroom, reputations, and job satisfaction—and, of course, in avoiding disciplinary measures. Civility and professionalism are required in the legal profession, but lawyers also should embrace such behavior because it is the right thing to do and can help to reignite not only the quality of service and justice that should be expected but also the respect and reputation that the rule of law and the legal profession deserve.

Notes

1. Civility, Merriam-Webster.com, www.merriam-webster.com/dictionary/civility (last visited Apr. 4, 2019).

2. Civility, Oxford Dictionary, https://en.oxforddictionaries.com/definition/civility (last visited Apr. 4, 2019).

3. Incorporating Civility into Your Law Practice, FindLaw, https://practice.findlaw.com/practice-guide/incorporating-civility-into-your-law-practice.html (last visited Apr. 17, 2019).

4. Id.; see also Professionalism Codes, American Bar Association (last updated Mar. 2017) (listing specific civility standards by state), www.americanbar.org/groups/professional_responsibility/resources/professionalism/professionalism_codes.

5. State Bar of Cal., Civility Toolbox (2009), www.calbar.ca.gov/Portals/0/documents/ethics/Civility/Atty-Civility-Guide-Revised_Sept-2014.pdf (last visited Apr. 17, 2019).

6. Voluntary Standards for Civility, D.C. Bar, www.dcbar.org/bar-resources/legal-ethics/voluntary-standards-for-civility (last visited Apr. 17, 2019).

7. N.Y. State Unified Court Sys., Rules of Professional Conduct and New York State Standards of Civility (May 1, 2013), www.nysba.org/WorkArea/DownloadAsset.aspx?id=55797 (last visited Apr. 17, 2019).

8. Donald E. Campbell, Raise Your Right Hand and Swear to Be Civil: Defining Civility as an Obligation of Professional Responsibility, 47 Gonz. L. Rev. 99, 109 (Nov. 2, 2011).

9. Jayne R. Reardon, Civility as the Core of Professionalism, American Bar Association (Sept. 19, 2018), www.americanbar.org/groups/business_law/publications/blt/2014/09/02_reardon.

10. Id.

11. Id.

12. Id.

13. Model Rules of Prof’l Conduct r. 3.3 (Am. Bar Ass’n 2016).

14. Id. r. 4.1–4.4.

15. Id. r. 5.1.

16. Id. r. 1.2 cmt. 1.

17. Id. r. 1.3 cmt. 1.

18. Id. r. 3.4.

19. Id. r. 8.4.

20. Id.

21. Id.

22. Joe Mullin, Judge Sanctions Lawyer for Splashing Opposing Counsel with Iced Coffee, ARS Technica (Jan. 30, 2017), https://arstechnica.com/tech-policy/2017/01/tech-startups-lawyer-sanctioned-for-throwing-coffee-during-deposition.

23. Debra Cassens Weiss, Judge Sanctions New York City After Lawyer Makes 600 Objections in One Deposition, A.B.A. J. (May 17, 2017), www.abajournal.com/news/article/judge_sanctions_city_for_lawyers_plethora_of_deposition_objections.

24. Debra Cassens Weiss, Lawyer Is Sanctioned $50K for Alleged ‘Inappropriate Diatribes’ and ‘Unhinged Attack’ on Expert, A.B.A. J. (Mar. 29, 2018), www.abajournal.com/news/article/lawyer_is_sanctioned_50k_for_alleged_inappropriate_diatribes_and_unhinged_a.

25. Jack Newsham, First Department Suspends Adam Leitman Bailey for 4 Months, N.Y. L.J. (Apr. 2, 2019), www.law.com/newyorklawjournal/2019/04/02/first-department-suspends-adam-leitman-bailey-for-four-months.

26. Samson Habte, Lawyer’s ‘Appalling’ Incivility Warrants Tougher Sanction Than What Bar Sought, BNA (Nov. 20, 2013) (subscription-only access available on the Bloomberg Law website).

27. G.M. Filisko, You’re Out of Order! Dealing with the Costs of Incivility in the Legal Profession, A.B.A. J. (Jan. 1, 2013), www.abajournal.com/magazine/article/youre_out_of_order_dealing_with_the_costs_of_incivility_in_the_legal.

28. In re Zappin, 160 A.D.3d 1, 7, 73 N.Y.S.3d 182, 186 (App. Div. 2018) (quoting N.Y. Comp. Codes R. & Regs. tit. 22, § 1240.8(b)(1)).

29. See, e.g., id. at 7, 73 N.Y.S.3d at 187; In re Foo, 159 A.D.3d 1218, 1219, 72 N.Y.S.3d 249, 250 (App. Div. 2018); In re Steinberg, 167 A.D.3d 206, 211 (App. Div. 2018).

30. Zappin, 160 A.D.3d at 8, 73 N.Y.S.3d at 187.

31. In re Giorgini, 166 A.D.3d 43, 47, 84 N.Y.S.3d 153, 156 (App. Div. 2018).

32. Id. at 155–56.

33. Id.

34. Steinberg, 167 A.D.3d at 211.

35. Id. at 207–08.

36. Id. at 210–11.

37. In re Foo, 159 A.D.3d 1218, 1219, 72 N.Y.S.3d 249, 250 (App. Div. 2018).

38. Id.

39. See Reardon, supra note 9.

40. Id.