It's how you play the game; Judge Marvin E. Aspen talks about putting civility back in the practice.

Have lawyers left civility at the doorstep? Are the histrionics and abusive tactics of fictional lawyers on TV and in the movies representative of what goes on in the legal profession? Or are real-life lawyers interested in a better, more civil practice?

They are, according to U.S. District Court Chief Judge Marvin E. Aspen. Judge Aspen, who chaired the Committee on Civility of the Seventh Federal Judicial Circuit, believes there are still many lawyers who will not sacrifice professionalism and civility for a victory. For them, the practice is not just about whether you win or lose but about how you play the game.

In an interview with ATLA Law Reporter Editor in Chief Liane Leshne, Judge Aspen discusses the nature and depth of the incivility problem, where it has taken root, and how it can be curtailed by the efforts of dedicated lawyers and judges.

New York's Mayor Rudy Giuliani said in a recent interview that civility "is about the inherent respect people have to have for the rights of other people." If civility is founded on respect, is the decline of civility in the legal profession really a problem of a lack of respect?

Mayor Giuliani is correct. A pervasive societal "lack of respect" is part of the cause for the decline of civility. In a cover article a couple of years ago, U.S. News and World Report reported pretty much the same. But it is too simplistic to say, as have some apologists, that loss of civility in the practice of law is merely a microcosm of a changed society that is not as "kind and gentle" as in earlier days.

The reasons for the legal profession's civility problems are numerous and complex. No one cause is the dominant culprit. In addition to a societal decline in civility, other contributing factors include the recent evolution of the practice of law from a professional calling to a bottom-line business operation; the growth and accompanying impersonalization of bars, law firms, and court systems; a decline in "mentoring" of new lawyers by older colleagues; routine media distortions of the American justice system; and increasingly convoluted discovery systems that often invite and exacerbate abrasive behavior.

Do the negative images in which lawyers are publicly portrayed damage our respect for ourselves and other lawyers? How can we avoid becoming demoralized by these images?

Yes, negative public images have damaged respect for lawyers and the legal system. Although lawyer prestige had been low prior to the televised debacle of the O.J. Simpson criminal trial, confidence in the legal profession and the court system took a further hit after the national TV performances of the Simpson criminal trial judge and the lawyers on both sides. Last year, the National Law Journal reported:

In the court of public opinion, lawyers are big

losers. A recent Harris poll reveals that lawyers'

prestige has plummeted at a pace unmatched

by that of other professions during the past 20

years. According to the poll, just 19 percent of

the public views the law as a "very prestigious"

occupation. In 1977, that figure was 36 percent.

The 17-point drop is the biggest among

occupations in the survey.

Other recent polls unfortunately confirm that most laypersons believe that the manner in which the judge and lawyers conducted themselves at the Simpson criminal trial is representative of the way the American justice system operates. As we judges and trial lawyers know, nothing could be further from the truth.

The recent Oklahoma bombing trial, conducted in an exemplary manner by U.S. District Court Judge Richard P. Matsch and the trial lawyers on both sides, has helped rehabilitate the public's image of the justice system. But we have a long way to go. Many judges still admonish newly selected juries that the O.J. Simpson criminal trial is not a model as to how cases should be tried and that the jurors must put aside any "legal knowledge" they think they may have gleaned from that trial. I certainly do.

How would you define lawyer incivility?

The Seventh Circuit has defined it as "professional conduct in litigation proceedings of judicial personnel and attorneys."

The term was not limited to good manners or social grace. It was meant to include all interpersonal relations with the expectation that a lawyer do nothing improper to impede an opponent from meeting her professional obligations. Or, put another way, the term "incivility" is meant to encompass all unprofessional conduct that falls short of an express violation of the canons of ethics.

Incivility occurs most often at the pretrial stage because would-be Rambo lawyers are less likely to misbehave before a judge than they are outside the courtroom. Uncivil conduct often takes the form of vexatious motion practice, bad faith discovery requests and compliance, failure to return phone calls, and other abusive interpersonal dealings.

We often hear complaints about aggressive lawyers, yet clients seem to want lawyers who will be fierce, aggressive advocates. To what extent do clients' expectations play a role in lawyer incivility?

A significant extent. The lawyer secure in his standing in the legal community, however, will accomplish the client's litigation or transactional goals but will not let the client dictate a methodology for accomplishing those goals that may compromise the lawyer's professionalism.

Does uncivil conduct by fictitious lawyers on TV influence what the public expects of real lawyers and, in turn, what they expect of themselves?

Yes. Some young lawyers may begin practicing law under the influence of television in particular and motion pictures to a certain degree. Practice almost follows fiction. Young lawyers and law students exposed to some of the worst machinations of Ally McBeal or the current Hollywood films sensationalizing trial practice may very well expect that they should act in some of the dramatic, abrasive ways portrayed. Certainly some of today's new clients, whose education of our court systems is via the entertainment media, expect them to do so.

Do certain practice areas suffer more from incivility than others? Why?

Yes. I have found that the civil practice generates more incidents of incivility than criminal trials, probably because prosecutors and defense attorneys are more likely than civil trial lawyers to meet again professionally in their respective careers. Also, there is more pre-trial activity in civil cases. Discovery in these cases is a troublesome area. Abusive practices pose a threat to the orderly functioning of the legal profession and judicial system. Also, Rule 11 sanctions requests are often singled out by lawyers as an incivility flash point.

Here are a few examples. We received the following responses to a survey of Seventh Circuit lawyers:

One lawyer wrote:

Lawyers tend to drag out discovery and allow

clients to respond slowly and incompletely,

necessitating motions to compel with or without

sanctions.

Another reported:

Some attorneys are unwilling to cooperate in

scheduling of depositions at mutually convenient

times, refuse to return telephone calls,

will not respond to letters. When depositions

are noticed, [these lawyers[ seek postponements

the day before the deposition because

of a "conflict." They either procrastinate or are

so overworked that they should decline new

cases.

A third lawyer stated:

Certain large law firms have adopted a policy

of seeking Rule 11 sanctions as a routine strategy.

One law firm has used Rule 11 in virtually

every case in which my firm and this firm

have been involved. In one particular case, this

firm and I represented co-defendants. The firm

filed a Rule 11 motion against the plaintiffs'

counsel based solely on whether the complaint

stated a cause of action.

Also, it is clear from our survey that the larger (and hence more impersonal) the legal community, the more likelihood of incivility. In other words, the problems are greater in Chicago than Peoria.

You chaired the Seventh Circuit's Committee on Civility. The committee's 1992 report proposed recommendations for improving civility, and many state and county bar associations have adopted some form of voluntary civility codes. Since the initiation of these measures, has civility improved? How can this be measured?

I believe it has improved, but I know this may be impossible to measure. Since the issuance of the committee's final report and its proposed set of Written Standards for Professional Conduct, at least 30 state bar associations and 30 county and city bar groups in at least 40 states have adopted some form of civility code, standards, or creeds, most of which have been patterned after the Seventh Circuit standards.

The Litigation Section of the American Bar Association has endorsed and adopted the Seventh Circuit standards. The House of Delegates of the American Bar Association will consider the adoption of the standards at its annual meeting in Toronto this summer.

It is hard to measure precisely the impact of the standards. Anecdotally, there is compelling evidence that civility is improving. Certainly, it is a subject that is now discussed and debated openly. That was not the case before the Seventh Circuit acted. Now, each lawyer admitted to practice before the circuit must certify, as a precondition to admission, that he or she has read and will abide by the standards. There is now a consensus among judges and lawyers, as reflected in the standards, as to what the mores of the profession should be.

Should civility standards be mandatory and uncivil conduct sanctionable? If so, what sanctions would be appropriate? Would this raise First Amendment issues?

The Seventh Circuit committee stated expressly in the preamble to the standards that their violation would not be sanctionable, and I believe that this was the right decision. The standards cannot be used in an attorney disciplinary proceeding or as a basis for contempt of court or any civil litigation. The standards are aspirational, that is, a reaffirmation by judges and lawyers as to what constitutes professional conduct for our working environment.

Some commentators have expressed concern that if there were to be sanctions based on civility standards, these could be used as weapons by lawyers to control opposing counsel's conduct in much the same way lawyers threaten to invoke Rule 11 sanctions. Is this a realistic danger?

As I said, our standards state expressly that they are nonsanctionable. The standards have been operative in the Seventh Circuit for more than six years and, to my knowledge, have never been used in a controlling or threatening manner by lawyers.

You have said many lawyers mistakenly believe that the duty to zealously represent their clients takes precedence over their professionalism. Should bar rules be reworded so that "zealous advocacy" is better defined?

That might help, though the courts have already spoken directly to this issue. For example, the U.S. Court of Appeals for the Eleventh Circuit has aptly stated:

All attorneys, as "officers of the court," owe duties

of complete candor and primary loyalty to

the court before which they practice. An attorney's

duty to a client can never outweigh his

or her responsibility to see that our system of

justice functions smoothly. This concept is as

old as common law jurisprudence itself.

State courts say the same. For example, the Delaware Supreme Court has held:

Staunch advocacy on behalf of a client: is proper

and fully consistent with the finest effectuation 

of skill and professionalism. Indeed, it is

a mark of professionalism, not weakness, for a

lawyer zealously and firmly to protect and pursue

a client's legitimate interests by a professional,

courteous, and civil attitude toward all

persons involved in the litigation process. A

lawyer who engages in [incivility and unprofessional

behavior] is not properly representing

his client, and the client's cause is not advanced

by a lawyer who engages in unprofessional

conduct of this nature.

Can you offer any advice for lawyers on how to draw the line between zealous representation and uncivil behavior?

Fight hard, but play by the rules. The "golden rule" is applicable: Treat opponents as you would wish to be treated. Don't create mean-spirited obstacles for your opponent that have little impact on the ultimate outcome of the case. Remember another old saw: "What goes around, comes around."

What advice would you offer a lawyer who must deal with an uncooperative or hostile opposing counsel?

Do not accept incivility from an opponent and do not hesitate to advise the court if such lack of professionalism impedes you from doing your job. Make your record. Remember, judges have the authority to act when they see misbehavior, and there are increasing signs that more judges are willing to do so. And the overwhelming majority of ethical and professional lawyers expect and want them to do so.

But don't make the mistake of responding in kind. We all start out in the practice of law with a good reputation. That reputation can be easily ruined by unprofessional conduct, and a damaged reputation is difficult to rehabilitate. The decision a new member of the bar makes early in a career as to how to act professionally will have as much of a long-term impact on individual success and happiness as any other important professional decision.

You have said that judges must not underestimate the significance of role modeling and cultivating civility. In what ways can judges encourage civil conduct?

To begin with, judges must not tolerate lawyer incivility and lack of professionalism. By failing to actively address lawyer abuses, the judge sends the wrong signal to the bar--and puts the ethical advocate in a posture where he or she may, unfortunately, conclude that the only recourse left to an opponent's Rambo tactics is to "fight fire with fire."

Judges must also by example set the proper tone of civility in the courtroom and by their comments in written opinions. Like it or not, judges are role models for our profession. Judges cannot ask lawyers to accept a standard of professional conduct to which they do not abide.

Judges have an obligation to the community, too. They must make certain that citizens who come into the courtroom--jurors, witnesses, and spectators--are presented with a system that is comprehensible, civil, and efficient.

Do you think the threat of being held in contempt of court is a realistic deterrent to lawyer incivility?

Maybe, but there might be better ways. I have been a judge for more than 27 years. I have never held anyone in contempt. I don't even own a gavel. Yet I believe my reputation as a judge is that I run a tight ship. And the lawyers who practice before me almost universally conduct themselves professionally in all respects.

Lawyers don't need spankings. But their misconduct should be noted and dealt with. The abusive tactics of the self-serving, slash-and-burn lawyer should not be rewarded. But, more important, the legal profession must insist that its membership conduct itself in a professional manner that the overwhelming majority has agreed is proper.

Proposed standards for improving civility focus on lawyers' and judges' conduct. Are there aspects of the system itself that should be reformed to promote civility?

Yes. Discovery should be streamlined. Costly and vexatious pre-trial motion practices should be reformed. Law schools, bar associations, and inns of court should all work together to get the civility message across and to reestablish a legal culture that does not tolerate unprofessionalism of any manner.

A California county bar association recently set up a self-policing program that encouraged lawyers to report colleagues' uncivil conduct to the state bar. The program floundered because lawyers were unwilling to report other lawyers, so it was revised to allow for reporting to an informal committee of peer counselors. What are your thoughts on these programs?

Unfortunately, in my view, they do not work. Our court once had a mentoring program for lawyers who perform in a substandard manner. Those lawyers identified would be mentored confidentially by a peer review committee without the threat of sanctions. We had to abandon the program because, although lawyers and judges had been complaining about impaired lawyering for some time, very few were willing to report it.

One California law school has a course solely on civility and professionalism. The theory is that if education can start early, lawyers will have internalized civility principles by the time they begin practicing. Can these courses be effective?

Yes, they can. Other law schools have similar initiatives. But separate civility and ethics courses are only part of the law school obligation. Where relevant, notions of civility and professionalism should be included in every law school course.

Should a judge be immune from suit for unprofessional conduct?

Yes, and I say this not for self-serving reasons. The need for an independent judiciary, in my view, outbalances any desirability of being able to address infrequent occurrences of judicial unprofessionalism in civil lawsuits. The federal and state courts all have adequate ways to address judicial misconduct institutionally. These views are consistent with my opinion that lawyers' civility codes should never be grist for civil suits.

What are the long-term dangers of incivility to the justice system?

Unbridled incivility mortally erodes the integrity of our courts' rulings and the public's confidence in the legal system as a dispute resolution institution. Indeed, disrespect for our court system and for the legal officers of that system can damage the very fabric of a democratic society. But ! am optimistic that this will not happen. I am convinced that the legal profession is more than willing to meet its responsibilities and provide leadership in bringing civility to the practice of law and in helping to renew citizen respect for and confidence in the judicial system.

The great Scottish Barrister Hugh Patterson MacMillan declared more than 80 years ago in an address on the ethics of advocacy: "Those who engage in [the practice of law] are the guardians of the ideals and traditions to which it is right that they should from time to time dedicate themselves anew."

It is now time in the words of Barrister MacMillan for all of us to dedicate ourselves anew.