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Volume 13, Issue 2
Winter 2002
Senior Lawyer News
By
G. Marshall Mundy
and C. Glasgow Butts1
Perhaps one of the best known attempts to address civility in general was undertaken by President George Washington. In his youth, he memorialized 110 rules which he titled "Rules of Civility & Decent Behavior in Company and Conversation", and he practiced those rules throughout his lifetime. In reading each of his rules, one could argue that he could have stopped after he wrote his first ‹ "Every action done in company ought to be with some sign of respect to those that are present." The remaining rules are merely variations on that singular principle.4
As for the legal profession, many have studied civility in our field and while there may be no uniform definition, numerous organizations have adopted the definition as set forth by the Seventh Federal Judicial Circuit in their study entitled Proposed Standards for Professional Conduct.5 Civility was simply defined as "professional conduct" in legal proceedings.6
Civility as viewed by the courts
The importance of civility has also been addressed by various factions of the
judiciary. One of the most frequently cited passages on civility came from Justice
Anthony M. Kennedy as he addressed the ABA Annual Meeting in San Francisco in
1997. "Civility is the mark of an accomplished and superb professional, but
it is even more than this. It is an end in itself. Civility has deep roots in
the idea of respect for the individual." Justice Kennedy noted with dismay the
fact that our profession needed an ABA endorsed model code, and that two prior
efforts to ratify a code of civility had failed.7 Less than
one year later, the ABA finally enacted "Guidelines for Litigation Conduct"
in an attempt to "elevate the tenor of practice".8
Perhaps the Pennsylvania Supreme Court has undertaken the most zealous attempt to propound civility in the law. On December 6, 2000, the court issued a per curiam opinion in which it adopted a five page Code of Civility.9 The preamble to the Code reads in part that while it does not supercede existing disciplinary codes, "it is expected that judges and lawyers will make a voluntary and mutual commitment to adhere to these principles."
Our own Supreme Court has made no similar sweeping proclamation, but the notions
of civility do appear in its opinions from time to time. The most recent example
of such is found in Morrissey v. Virginia State Bar, 260 Va. 472, 538
S.E.2d 677 (2000). A Richmond attorney had appealed his three year license suspension.
In reviewing the case, the Court opined that Morrissey's "lack of civility and
deplorable conduct during the hearing in the Circuit Court for Chesterfield
County alone, would have been sufficient to warrant the imposition of a three-year
suspension."10 Id. at 481, 682.
While it is important for a practitioner
to be civil in all facets of his practice, a lack of civility is often apparent
in divorce and custody cases. For those of us who have practiced in the area
of family law, we witness first hand the raw emotion that parties display during
the course of proceedings. Now put yourself in the shoes of the judge, especially
a juvenile and domestic relations judge, who day after day witnesses families
fighting tooth and nail for custody and visitation. It is no secret that many
judges believe that not every case warrants a full assault on the opposing party.
After all, the controlling theme for children is to determine what is in their
best interests. How can it be in a child's best interests when his parent comes
home from court so irate that they spend the rest of the day, month or longer
disparaging the other parent? Wouldn't it be to the advantage of both the attorney
and the client if all parties attempted to maintain some semblance of civility?
The answer to the question is overwhelmingly, "yes," and it is the responsibility
of the attorney, particularly in situations in which emotions run high, to explain
and demonstrate to the client that effective advocacy can take place without
the attorney or the client being a "pit bull."
Statistical reasons for the increase in incivility
As noted earlier, in undertaking its survey, the Seventh Federal Judicial Circuit
reviewed a number of factors to first determine if attorneys or the judiciary
viewed civility as a problem, and second, to identify the causal factors which
contribute to incivility.11 The initial survey results indicated
that among responding judges, 45% found civility lacking, but 39% did not. Among
responding lawyers, 42% found civility lacking, but 52% did not.12
What is perhaps most remarkable about the results is the fact that of the attorneys who found that opposing counsel lacked civility, 94% identified discovery as the "breeding ground for conflict."13 Also of note was that 79% thought civility problems arose most frequently in "lawyers' relations among themselves."14 Next, the committee attempted to categorize the supplemental comments to identify the causes of incivility. In setting forth the various causes of incivility, the committee did conclude that there was "no single manifestation of incivility, no single cause, and, therefore, probably no single solution."15
The categories ultimately identified by the committee as contributing to incivility were as follows:
1. The expanding size of the bar;
2. Economic competition;
3. Discovery;
4. Judicial leadership; and
5. Time management pressures.
It is readily apparent that all of these factors are interrelated. It is only
logical that competition will increase when there are more attorneys in practice.
And, the more attorneys who are in practice, the less collegial the bar becomes.
In larger cities, there are attorneys who may cross paths only once during their
entire career. Regrettably, some attorneys believe this gives them carte blanche
to be overly-adversarial - that there is no incentive to be civil because there
will never be any professional relationship to cultivate with opposing counsel.
Judicial leadership can often quell an attorney's propensity to be uncivil.
But just like attorneys, judges are subject to public scrutiny and an official
complaint process. Would a judge's attempt to maintain civility be viewed by
some as a failure to allow a lawyer to put on his case? Is there a practical
way for a judge to monitor discovery more closely to prevent perceived abuses
and yet avoid complaints by the bar in how a judge wields his judicial power?
Possible solutions to incivility
There is no simple solution to the lack of civility, but there are organizations
in existence whose creeds we must endorse and incorporate into our practices
so as to lead by example. The Harrisonburg/Rockingham bar has developed its
own code of conduct which has often been recognized because of the positive
results which have ensued. The Fairfax Bar Association has also propounded a
Creed of Professionalism which recognizes that attorneys are to be "courteous
and civil in all communications with opposing counsel recognizing that the disputes
are those of the clients."16 Some attorneys have become members
of the American Inns of Court, a national organization emphasizing civility
training and excellence in the practice of law.17 The list
of organizations which have propounded a creed of professionalism is too lengthy
to list here, yet incivility remains.18
We may be members of various organizations with codes of professionalism in place, yet none will be effective unless we make it so. We must discourage attorneys who feel they have attained a certain level of success by using guerilla tactics both in and out of court and insist on practicing as such. We must step in and act as mentors so as not to leave our newest generation of lawyers with no compass to guide their way. We must advocate that being civil is not the equivalent of being weak and not a failure to represent our clients zealously. In so doing, we must, through our conduct, advance the image of attorneys who are professional and civil, and we must overcome a public perception, which has been shaped in part by media coverage, of the rude, discourteous, abrasive and uncivil behavior of some attorneys. We believe that clients will be pleasantly surprised and greatly encouraged: (1) to learn of the rules, guidelines, and principles for attorneys' conduct which are required, promoted and encouraged by the bar and the judiciary; and (2) to observe personally the professional and civil conduct by attorneys in their effective representation of clients.
Conclusion
Justice Potter Stewart once noted the importance of knowing the difference between
having the right to do something and doing the right thing.19
It is unfortunate when lawyers erroneously equate mere compliance with the minimal
ethical standards set forth in the Rules of Professional Conduct with moral
behavior and civility. The fact that the lawyer complies with the Rules does
not necessarily mean that the lawyer has acted morally or with civility. It
is not sufficient simply to comply with the Rules of Professional Conduct. Our
goal should be much higher. We should strive, in Justice Stewart's words, to
do the right thing, not merely to know what we have a right to do. In order
to restore our profession to the high standard it once enjoyed, law schools,
the organized bar, the judiciary and each of us, individually, must take an
active role in promoting civility and restoring our profession to its rightful
place of prominence.
ENDNOTES ————————————
1 Vicki L. Wiese, an associate with the Roanoke firm of Mundy,
Rogers & Frith, provided invaluable assistance with this article.
2 Lawyer advertising was prohibited until 1977 when the Supreme Court ruled that lawyer advertising was constitutionally protected speech. Bates v. State Bar of Arizona, 433 U.S. 350 (1977).
3 It is
acknowledge that approximately half of all law school graduates today are female.
The pronoun "he" is used throughout this article for simplicity.
4 His last rule is also an inclusive theme that we as lawyers
should aspire to - "Labor to keep alive in your breast that little celestial
fire called conscience."
5 In 1989, Chief Judge William Bauer of the Seventh Circuit Court of Appeals appointed a committee to study several aspects of civility within the circuit. In 1992, the Seventh Circuit committee published its findings which have been recognized by the ABA as one of the most extensive studies on civility to date.
6 The committee further noted that they "did not limit the term to good manners or social grace." Interim Report of the Committee on Civility of the Seventh Federal Judicial Circuit at 1.
7 In response to the ABA's failure to adopt a code, one author commented that it was tantamount to embracing "'New York hardball' as the official standard of practice." Lowenthal, The Bar's Failure to Require Truthful Bargaining by Lawyers, 2 Geo. J. Law Legal Ethics, 411, 445 (1988).
8 See Appendix attachment 1 . (pdf)*
9 See Appendix attachment 2. (pdf)*
10 Immediately following the sentencing hearing at which Morrissey's client was sentenced to 25 years in prison, Morrissey stated "that's outrageous, that is absolutely outrageous", approached the bench and further stated "I have never seen a more jaded, more bitter, more angry jurist in my life." Id. at 477, 679.
11 The
Seventh Circuit encompasses the states of Illinois, Indiana, and Wisconsin.
12 Of the lawyers surveyed, 97% were private practitioners.
Interim Report of the Committee on Civility of the Seventh Federal Judicial
Circuit at page 6.
16 See Appendix attachment 3. (pdf)*
17 The Seventh Federal Judicial Circuit Committee recommended that attorneys become active in an Inn as part of a "commitment to the overall enhancement of litigation practice . . .". Interim Report of the Committee on Civility of the Seventh Federal Judicial Circuit at 49.
18 The ABA has developed many programs addressing professionalism. Those programs are summarized in Promoting Professionalism: ABA Programs, Plans and Strategies (1998). A copy may be obtained by calling the ABA at 1-800-285-2221.
19 Columbia University Seminars on Media and Society, Ethics in America - Preface to Ethics: An Introduction to Ethical Reasoning (Corporation for Public Broadcasting 1988).
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