Lawyer incivility: war games or bad manners?

The problem with lawyer civility is, there just isn't enough of it. Many judges and lawyers will agree on that point. But fixing the problem is no easy task.

Just ask Washington, D.C., lawyer Andrew Marks. Marks cochaired the District of Columbia Bar's Task Force on Civility in the Profession, which spent about two and a half years examining the state of civility in D.C.

"What we found is that civility is not merely a big-firm issue," Marks said. "Often, it's the small-firm lawyers who feel like they must be overly aggressive or else they will lose their cases--and their clients' respect."

So what is civility, anyway? Defining it, Marks said, is actually easier than maintaining it. The D.C. task force defined civility as adhering to the Golden Rule: treating others as you would like to be treated.

Incivility has increasingly been viewed as a problem within the legal profession during the past decade. Some have attributed belligerent behavior to a decline of civility in society at large. Others believe the competition inherent in the rapid expansion and growth of law firms in the 1980s was a major factor. Whatever the reason, there is wide consensus that a growing number of lawyers have earned the sobriquet Rambo lawyer by adopting the approach of Sylvester Stallone's superhero action figure John Rambo: "To survive a war, you've got to become war."

Breaking the incivility cycle has become a national undertaking. At least 26 state bar associations and 24 county bar groups in at least 37 states have adopted some form of civility code, standards. Or creeds, according to the D. C. task force's report. The standards are "spirational,", or voluntary, and violating the cannot be the basis for discipline.

Guidelines typically suggest that lawyers notify opposing counsel as soon as possible when scheduling conflicts arise: respond reasonably to document and in terrogatory requests; speak and write civilly to judges; avoid offensive conduct directed toward others, not use discovery for unjustifiable delay or harassment; and not engage in acrimonious conversations during discovery.

These standards are similar to those of the American Bar Association's (ABA) Section of Litigation. The ABA section's civility guidelines were gleaned from those of the Seventh Circuit Court of Appeals, which took up the issue in 1989.

"The civility movement really started with the Seventh Circuit's Civility Committee," said Chicago lawyer Donald Hilliker. "That committee was the first to study the problems of lawyer and judicial civility." Hilliker cochairs the Committee on Professionalism of the Corporate Counsel Committee of the ABA's Section of Litigation. He is the de facto point man on lawyer civility.

"The ABA section's civility guidelines were adopted in the falL of 1995," Hilliker said. "We felt it was time we addressed overly aggressive litigation tactics and rude behavior among lawyers on a national level."

In addition to adhering to civility guidelines, the ABA is asking law firms, law enforcement agencies, corporations that hire outside counsel, lawyers, and judges to sign civility pledges "to endorse on paper their commitment to civility and fair play," Hilliker said.

Law firms and law enforcement agencies taking the pledge agree to ensure that the lawyers representing them avoid overly aggressive litigation tactics and incivility. Corporations are asked to pledge that their attorneys are aware of and will abide by the guidelines. The ABA's Section of Litigation is asking major corporations to take the lead in endorsing the guidelines.

Lawyers and judges are asked to acknowledge that "overly aggressive litigation tactics and incivility among lawyers (including among judges and between judges and lawyers) bring disrespect to the legally system and the role of the lawyer, increase the cost of resolving disputes, and do not advance legitimate interests."

Marvin Aspen, chief judge of the Northern District of Illinois, could not agree more. Aspen chaired the Seventh Circuit committee that examined the problems of lawyer and judicial incivility in that circuit and spearheaded the attempt to inject greater civility into the legal profession.

"One of the most important tools a lawyer has is his or her reputation," Aspen said. "It takes time to build a good one, and it's hard to rehabilitate a bad one." Incivility, Aspen said, can sully a lawyer's reputation in very ignorant older.

Unfortunately, Aspen said, many lawyers are under the mistaken notion the their duty to zealously represent clients should take precedence over their professionalism. Judges, he said, must not underestimate the significance that role modeling plays in turning that misimpression around and in cultivating an atmosphere of civility among opposing parties.

"As judges, we cannot ask lawyers to accept standards of professional conduct which we ourselves do not promote and adhere to," Aspen said. "Civility start with us."

Aspen and Hilliker agreed that many lawyers now believe the practice of law is a business, not a profession. A focus on the bottom line, rather than on service, has led to a belief among many lawyers that winning big is the only game in town.

Hilliker said this belief is reinforced by many clients, whose opinions about lawyers' behavior have been shaped in part by fictional courtroom television shows like L.A. Law and real-life courtroom dramas played out on Court T T;

"Many people see a lawyer on television acting uncivilly and winning," Hilliker said. "Then when they need counsel, they go out and try and find that kind of attorney, and the cycle starts all over again."

Those interviewed for this story gave numerous examples of incivility. Typically, the incivility manifested itself as childish behavior, such as the lawyer who shot spitballs at opposing counsel during a deposition. Or the lawyers who started screaming at each other during deposition, only to have the witnesses walk out announcing, "When you all are done arguing, we'll be outside."

"It's just this kind of adolescent behavior and lack of courtesy that lawyers need to avoid," Hilliker said. "Unfortunately, without mentors, young lawyers are often the most susceptible to it." Aspen agreed that education and, indeed, re-education is necessary to rebuild the reputation of lawyers as a group and law as a profession.

"Lawyers must educate and mentor other lawyers," he said. "It should start in law school, and older lawyers should mentor younger lawyers once they get into private practice."

Marks agreed. "We've got to educate our own before we can have an impact on the general public."

Hilliker said he believes this process has already started. He told of one mid-career lawyer who routinely sends a copy of the ABA's civility guidelines to opposing counsel with a note indicating his intent to adhere to them. "This lawyer believes it sends the right message from the very beginning of his relationship with opposing counsel," Hilliker said.

Alan Medvin, a New Jersey lawyer who cochairs ATLA's Committee on Ethical Conduct, readily acknowledges that incivility among lawyers and judges is widespread. "Anyone practicing in the past 10 years will tell you there's a problem," he said. "And few will tell you that civility standards are a bad idea. The debate is whether they should be aspirational or sanctionable."

D.C. lawyer David Epstein believes that one usually leads to the other anyway, especially when they are called standards. "When you adopt aspirational standards, as D.C. has done, they invariably become mandatory," he said. "Call them guidelines or suggestions, but not standards."

Weapons?

Epstein, who has taught professional responsibility for many years at Georgetown University Law Center, also points out that D.C.'s civility standards "will become adversary weapons in the way that lawyers file Rule 11 motions and threats to invoke the Rules of Professional Conduct as a tactic for controlling the conduct of opposing counsel.

"D.C. has been too quick to standardize what is essentially an area of discussion for lawyers," Epstein said. "What usually happens when you jump the gun this way is that the guidelines you have defined will probably evolve and have to be changed anyway."

Regardless of whether lawyers believe civility standards should be voluntary or mandatory, Marks believes their arrival is long; overdue. "There is nothing; whatsoever inconsistent between aggressive advocacy and civility," he said. "Countries at war manage to operate with specific rules of engagement. There's no reason the legal profession can't do the same."

Interested law firms and companies can contact Hilliker at [phone] to request copies of the ABA section's civility guidelines and pledges. Copies of the District of Columbia Bar's civility standards may be obtained by calling [phone], ext. 234.