Incivility and Professional Ethics

Professional EthicsCan lawyers properly advocate for their clients without being aggressive toward opposing counsel? Many say no—aggressiveness is part and parcel of advocacy. And over the past few decades, anyone who is in the ring with lawyers would agree that there has been an increase in aggressiveness, also characterized as incivility.

Many say the incivility is unwarranted and counterproductive. Others say the incivility is effective and rewarded by better settlements or rulings for their clients. As reflected in the Illinois Supreme Court Commission on Professionalism’s statewide survey of Illinois lawyers, most agree that a consequence of all this incivility is that the public’s image of the legal profession continues to tank.

The supreme courts in each state, which are responsible for regulating lawyer ethics, have taken various approaches to curbing incivility and promoting more professional behavior. Some states, including Illinois, have formed Commissions on Professionalism to educate and inspire better behavior. Other states have enacted civility codes, and sometimes lawyers who violate the civility code may be subject to discipline, just as they may be disciplined for violating the code of ethics.

Civility in the Code of Professional Conduct

Although each state supreme court enacts its own code or rules of professional conduct, most generally follow the model rules adopted by the American Bar Association. Until 1990, that was the Model Code of Professional Responsibility. The Code contained disciplinary rules (DRs), governing such topics as confidentiality of client matters, conflicts of interest, diligence and competence, as well as ethical considerations (ECs), attached to each rule, that contained narrative describing the aspirational goals beyond the rule.

In 1990, the ABA replaced the Model Code of Professional Responsibility with the Model Rules of Professional Conduct. The stated ethical considerations were shorn from the Rules. The rationale of the change makes great sense: lawyers should be disciplined only for clear disciplinary rule violations, not failure to adhere to aspirational goals.

So what disciplinary rules relate to civil behavior? There is no specific rule that says lawyers have to be civil. However, many of the ethical rules imply as much. For example, Rule of Professional Conduct 4.4(a) states, “In representing a client, a lawyer shall not use means that have no substantial purpose other than to embarrass, delay, or burden a third person….” and Rule 8.4(d) provides that it “is professional misconduct for a lawyer to…(d) engage in conduct that is prejudicial to the administration of justice.” Rule 1.3 says lawyers should be diligent when representing a client. However comment 1 to the rule says that although a lawyer should act with “zeal in advocacy,” that does not mean a lawyer is bound to “press for every advantage” on a client’s behalf.

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.”

In practice, however, these provisions rarely, if ever, are used to discipline attorneys for uncivil tactics. So some argue that there is no curb or deterrent to lawyers engaging in overly aggressive tactics that prolong disputes, cost clients a lot of extra money, and bring the legal profession into disrepute in the eyes of the public.

The Rise of Civility Codes as a Professional Ethics Requirement

In response to the rise in incivility, over a hundred state professionalism commissions, bar associations, and other legal organizations have enacted voluntary civility codes, also called creeds of professionalism or statements of principles of civility or professionalism. These voluntary codes are akin to the ethical considerations that used to be included in the Code of Professional Responsibility—they serve as guides or suggestions for behavior. But there is no evidence that voluntary codes and creeds have been successful in changing attorney behavior.

Some states have gone further, focusing on the newest lawyers. Florida, South Carolina, Utah, New Mexico and California have added a civility pledge in the oath that a lawyer must take upon admission to the bar. The South Carolina and Florida pledges are typical and identical:

To the opposing parties and their counsel, I pledge fairness, integrity, and civility, not only in court, but also in all written and oral communications.”

Will this make any difference in lawyer behavior? It is debatable.

Some say that only forcing lawyers to be civil will make a real difference. A couple jurisdictions including Florida and South Carolina doing just that. The Florida Supreme Court has stated that incivility undermines the integrity of the administration of justice to such an extent that civility must be made mandatory and enforced through a complaint and intervention process that may be “off the record.”

Opponents of this approach argue that making lawyer subject to coerced compliance for incivility is too subjective a standard and will violate a lawyer’s constitutional rights of free speech and due process. They also say it will inhibit proper advocacy and work for reform and that it avoids addressing the underlying causes of incivility.

All this and more will be debated this Sunday, August 2 at 10:30 am in the American Bar Association’s Showcase CLE presentation, “Policing Lawyer Manners, The Complicated Question of Civility Compliance.” I am moderating a panel of distinguished lawyers who will come at this issue from all directions. It is an important discussion; hope to see you there.

 

 

 

 

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Jayne Reardon
As a prior trial lawyer, Jayne leads lawyers to embrace the transformative possibilities of future law practice. As a prior disciplinary counsel, Jayne is passionate about promoting the core values of the legal profession. She is a graduate of the University of Michigan Law School and the University of Notre Dame. Jayne lives in Park Ridge, Illinois with her husband and those of her four children who are not otherwise living in college towns and beyond.
Jayne Reardon

5 thoughts on “Incivility and Professional Ethics

  1. Apropos your e-mail message on the importance to civility of continuous learning and networking: I could not agree more. Looking forward to getting more acquainted with the topics covered in this blog.

    But first, I am taking a break for one element to civility you might add: having a life! Nothing like raising children for learning the importance of, and techniques for, keeping the peace. Children learn by our examples and if we get used to setting a positive example for them, it cannot help but become part of our behavior patterns in practice and thereby set an example for our colleagues as well.

  2. Thank you for your comment, Michael. I agree that having a life outside work, children may be in the picture for some, gives us perspectives that contribute to civility. Often incivility arises from people taking firm positions without considering others’ viewpoints. Not only do we need to “play nicely in the sandbox”, we also need to get out of the sandbox once in a while!

    Jayne

  3. Civility is an extremely important issue both in and out of the courtroom. Lawyers face civility issues when dealing not only with other lawyers but also with clients, witnesses, opposing parties and whomever. After decades of interacting with whomever, I try to use honey for as long as possible. . Once things turn bitter, it is so hard to be genuinely sweet again.Thank you for these excellent articles. One last obvious comment: An advocate can civility to advantage when dealing with incivility in opposing counsel. Being the “good guy” in front of a judge and jury often works so very well. One can watch the reactions of a judge and jurors to incivility in one’s opponent.

  4. To echo the earlier comments: Civility works in and out of the Courtroom. That is a reason for Civility that should get the attention of our younger members of the Bar (to me, that means the greater majority of you). There is another practical consequence of incivility that commends itself to this senior attorney: the need to demonstrate client diligence by questionable tactics is certain to prove costly to one’s physical and emotional well-being. While not often considered during the course of protracted litigation or transactions, it will eventually take on significant importance.

  5. How about the role of Judges? If lawyers are getting out of line when arguing motions or on trial, the Judge will see it fast and should do something about it. In my long experiences, if a lawyers who is your opponent does not know you and if their position is weak, they try to “steam roll” you and overwhelm you with incivility. AND, much to my amazement, many lawyers can NOT deal with incivility! (When I first encountered this about 30 years ago, I could NOT believe it!!!!! Imagine, a lawyer that can not deal with many of us would call vigorous advocacy at best or attempts at being a bully to scare and overwhelm…… well, fact is that MANY lawyers can not emotionally deal with vigorous advocacy, and that is just the way it is. Standing up to a bully works for me and although I present a calm personality and lawyerlike approach to matters, if provoked, well, as I have stated more then once on the way to taming a bully is: “To the extent not violative of the rules of ethics, I will stoop a half inch lower in the mud then “you” in order that I show my client they are well represented and will not suffer a disadvantage or lose their case because I could not deal with such wrongful conduct.” Has any lawyer who engages in adversarial proceedings not had these experiences?

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