The following contains purely informational, educational or technical material. The views expressed herein represent the opinions of the author and have not been approved by the American Bar Association House of Delegates or the Board of Governors and, accordingly, should not be construed as representing the position of the association or any of its entities.
In a famous song of the musical, “Hamilton,” there is a frustrated refrain by Aaron Burr that he wants to be “in the room where it happens.” Hamilton’s advice: “Talk less. Smile more.” Lawyers both, Hamilton understood, while Burr did not, that the price of inclusion in high-level decision-making is collaboration, collegiality and compromise. The higher the stakes, the more important these practices become. And the room where it happens was clearly understood as that physical place where the decision-makers gather.
Fast forward to April 2020, when the rooms where lawyers make it happen are closed by the COVID-19 pandemic: offices, conference rooms and often the courts. For now, the room where it happens is the legal community itself. Where decision-making venues are scarce and stakes are high, the ability of lawyers to innovate and to work effectively among themselves and with clients will determine whether the operating mechanisms of the rule of law can be fully restored at some future date, or whether chaos will ensue under the pressure of compromised structures for dispute resolution. What power does the legal community have to mitigate the effects of systemic socio-economic disruption? Maintaining justice under such circumstances may be difficult, but not impossible, suggests the Los Angeles County Bar Association’s Professional Responsibility and Ethics Committee.
In March 2020, the committee released a statement that said, in pertinent part: “In light of the unprecedented risks associated with the novel coronavirus, we urge all lawyers to liberally exercise every professional courtesy and/or discretional authority vested in them to avoid placing parties, counsel, witnesses, judges or court personnel under undue or avoidable stresses, or health risk … Any sharp practices that increase risk or which seek to take advantage of the current health crisis must be avoided in every instance.” Among the measures recommended by the committee were agreeing to reasonable extensions of time and continuances to avoid in-person meetings and consulting with clients, pursuant to California Rule of Professional Conduct 1.2(a), for authorization to make extensions or to stipulate to continuances when the client’s consent is necessary. In support of its recommendation, the committee cited the “Guidelines for Civility in Litigation” LASC Local Rules, Appendix 3A, which were codified by the Los Angeles County Superior Court to establish standards of behavior essential to the efficient operation of the courts. The guidelines provide a level playing field for all lawyers appearing before the court. The guidelines’ penultimate statement appears in section (l)(2) under the heading, “Trials and Hearings”: “Counsel should always deal with parties, counsel, witnesses, jurors or prospective jurors, court personnel and the judge with courtesy and civility.”
When the traditional walls of the “room where it happens” become porous and weakened by the pressures of a public crisis, the relationship that binds the legal community together becomes the room, or the space, where justice is served. That relationship requires trust, cooperation, understanding and (setting aside all jokes involving lawyers and sharks) professional courtesy. When chaos creates an uneven playing field that lawyers may be tempted to exploit, the temptations should be neutralized by a long view. A single instance of a lawyer taking unfair advantage of an adversary’s pandemic-related vulnerability will resonate through the legal community. It will go neither unnoticed nor unforgotten. As Charlotte Bronte’s heroine, Jane Eyre, said to herself while looking in a mirror, “Could not even self-interest make you wiser?” Unlike Aaron Burr, who never got the message, the wise lawyer understands that when the “room where it happens” is defined by the lawyer’s relationship with peers, the price of admission will be civility.
Teresa J. Schmid is the director of the American Bar Association Center for Professional Responsibility. She is a past executive director for the Oregon State Bar and executive director for the State Bar of Arizona. She is also a past chair of the Los Angeles County Bar Association’s Professional Responsibility and Ethics Committee and a past member of the State Bar of California’s Standing Committee on Professional Responsibility and Conduct.
The Center for Professional Responsibility provides national leadership in developing and interpreting standards and scholarly resources in legal and judicial ethics, professional regulation, professionalism and client protection.