Lawyer bullies, incivility: On policing lawyer manners

October 2015 | Around the ABA

Are lawyers so rude today that civility codes should be instituted and enforced, or should civility simply be taught? That was the central question debated at “Policing Lawyer Manners: The Complicated Question of Civility,” a program held at the ABA Annual Meeting in Chicago and sponsored by the Standing Committee on Professionalism, Tort Trial and Insurance Practice Section and the Center for Professional Development.

Moderated by Jayne Reardon, executive director of the Illinois Supreme Court Commission on Professionalism, the panel included John Allen, professor of law at Varnum Law School in Kalamazoo, Mich.; David A. Grenardo, professor of law at St. Mary’s University School of Law in San Antonio; Mary Robinson, partner at Robinson Law Group in Chicago; and William Slease, chief disciplinary counsel at the New Mexico Supreme Court.

The program sought to convey the historical underpinnings and practical differences between aspirational and mandatory conduct, and also to debate whether incivility that does not directly violate ethical rules should be subject to enforcement.

Reardon opened the program by acknowledging that lawyers have become more aggressive in recent years, possibly due to the flamboyant portrayals of the legal profession so prevalent on TV.

Civility codes are meant to help change the culture of the legal profession, protect its integrity and avoid the major costs of incivility.

More than 140 state and local bar associations have generated aspirational civility codes, including South Carolina, whose Civility Rule states: “To opposing parties and their counsel, I pledge fairness, integrity and civility, not only in court, but also in all written and oral communications.” The pledge is taken both by those being admitted to the state bar for the first time and by more senior lawyers, who have had to retake the oath.

Still, incivility persists.

The panel agreed that the practice of law is a privilege, not a right, and that lawyers should be held to a higher standard of conduct.

While Grenardo and Allen felt civility codes should be enforceable, Slease thought them too vague, and that the more effective way to reinforce civil behavior is to teach it in law school.

Noting that civility codes are similar to codes of professional conduct, Allen said lawyers should be civil 24/7, 365 days a year. “You want to be a lawyer?” he said. “Then you’re going to have to obey rules that nobody else has to obey.” If that’s a problem for a potential lawyer, he said, they should move on.

Robinson, however, said that current enforcement tools are sufficient. She felt that mandatory codes of civil behavior may be too vague or subjective to be enforced, and that civility is already enforced through the Rules of Professional Conduct. Therefore, she said, education – of law students, lawyers and the public – may be the best enforcement tool.

A recent National Organization of Bar Counsel Survey of Civility recommended that instead of enforcing civility, the underlying causes of incivility should be identified and addressed, and that:

  • Much uncivil conduct arises from emotional reactions to stressors inherent in the practice of law and from ineffectively treated mental conditions
  • The “values” stated in civility codes and oaths are not necessarily shared
  • Discipline falls disproportionately upon lawyers representing individuals

A 2011 piece in the Houston Law Review entitled, “Making Civility Democratic,” said that clients represented by misbehaving lawyers were:

  • Individual clients – 58 percent
  • Corporate clients – 18 percent
  • Government clients – 15 percent
  •  Criminal defendants – 11 percent

The targets of uncivil behavior were:

  • Opposing counsel – 59 percent
  • Judges – 52 percent
  • Opposing parties – 28 percent
  • Witnesses – 12 percent
  • Court personnel – 7 percent
  • Attorney client – 4 percent
  • Others – 3 percent

The uncivil behavior cited included rudeness; defiance; the accusation that the judge or another was biased; the accusation that the judge or another was incompetent; vulgarity; threats; racism; sexual inappropriateness; and sexism.

Discipline was most often imposed on a lawyer representing an individual client and much less frequently on a lawyer representing a corporation.

Behavior that resulted in the imposition of sanctions included defiant speech directed at the judge; false statements concerning the qualifications or integrity of a judge; and conduct prejudicial to the administration of justice.

However, a 2014 survey of Illinois lawyers found that 91 percent of the respondents described their colleagues as civil and professional or very civil and professional. At the same time, though, 85 percent said they had experienced uncivil or unprofessional behavior in the last six months, about half of which was attributed to legal strategy.

Those respondents overwhelmingly agreed that incivility in the legal profession:

  • Makes it more difficult to resolve a matter
  • Makes the practice of law less satisfying
  • Harms public confidence in the judicial system
  • Leads to increased litigation costs

They also agreed on strategies to improve professionalism and civility:

  • Impose/enforce court or judicial consequence
  • Provide training on civility and professionalism
  • Institute mandatory CLE on civility and professionalism
  • Educate judges to better deal with incivility
  • Increase law school professionalism training
  • Create a mechanism for reporting to the Attorney Registration & Disciplinary Commission or other tribunal