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As legal practitioners, all of us have felt a certain level of frustration with opposing counsel for any number of reasons. But, all of us reading this column have (hopefully) been able to keep civility and professionalism in the forefront when addressing those areas of frustration with opposing counsel. Not only do lawyers represent their clients, they serve as officers of the legal system, and are public citizens having special obligations for the quality of justice. In order to meet those various roles, attorneys must keep true to civility and professionalism as required in R.P.C. 3.2 (Expediting Litigation), which reads, in part, that “[a] lawyer…shall treat with courtesy and consideration all persons involved in the legal process.”
Unfortunately, because of recent experiences this author has had with other attorneys, it appears that civility in the practice of law is on the down swing.
Civility is not the same as agreement, or the absence of criticism, or liking a person, or even good manners. Disagreement does not justify incivility, and our legal system recognizes that debate is needed to reach the truth of a matter. The duty to be civil to each other does not mean that each of us must be interested in having a meal with the other person; instead, it requires an obligation to show respect. Respecting another person may call for criticism; just as a partner in a law firm who fails to point out an error in a young associate’s legal brief is not being civil, but instead is not doing their job. Good manners alone are not a mark of civility. Civility is a code of decency.
Recently, this author faced numerous instances of other attorneys ignoring professionalism or civility in various situations. This author needed postponements of matters because he was faced with a family member’s serious illness. When requests for postponements or continuances were sought so that this author could be with that family member in the hospital, most attorneys immediately consented. Unfortunately, this author cannot say that all attorneys consented.
One adversary who was asked for consent even went so far as to demand proof of the illness facing the author’s family member before deciding whether it was serious enough to warrant his consent. Just what happened to attorneys granting consent for postponements the first time it is sought, let alone when there is an illness facing a family member? Why would it be that an adversary felt it appropriate to try to take advantage of a situation and demand proof? Where was that adversary’s civility or professionalism? It appeared that this adversary lost the balance between the desire to zealously advocate for a client and the duty to be civil at all times. Perhaps the attorney was caught up in the popular image of a lawyer being partisan and combative. But zeal never extends to treating people with discourtesy or disrespect, and this author believes that attorney’s refusal to consent in the face of a family member’s serious illness borders on unprofessional conduct.
This author had another unfortunate experience that demonstrated incivility by opposing counsel. This author asked for a postponement of a pre-judgment pendente lite support motion (filed for the first time over a year into a divorce case) so the author could go on a pre-planned, pre-paid vacation during the summer. No doubt, this exact scenario has been faced by every reader, whether going on vacation or being asked to consent to a postponement so that a vacation by the adversary could occur. Instead of offering consent, the opposing counsel demanded that the client meet no less than three pre-conditions before that opposing counsel would even consider offering consent. What was that opposing counsel thinking? Why did the adversary feel the need to try to demand pre-conditions before even discussing consent? Whatever happened to civility in the practice of law?
The most recent instance of the breakdown of civility in the practice of law faced by this author came when this author accepted representation of another attorney’s client, weeks after the initial consult with that client and after the client’s attempts to fix the issues the client had with the first attorney failed. In response to receiving a call and a letter that the client was going to change attorneys, the discharged attorney felt it appropriate to say that this author had “created an enemy for life,” was a “stupid, not so great attorney,” and that this discharged attorney would make sure the next case between them would reflect that attorney’s “ire” over discharge by the prior client.
This author’s initial reaction to that other attorney’s behavior was one of sadness, because such actions reflect poorly not only on that attorney but on all attorneys. How could a member of the consuming public tell the difference between a civil, professional attorney and one who calls others “stupid” or refuses common courtesies in the face of family illness or a family vacation? The truth is, a consuming member of the public could not tell until incivility in the practice of law rears its ugly head.
What causes professional rudeness and incivility? Perhaps pride, greed or a misunderstanding of our role as advocates in the practice of family law. Regarding pride, perhaps the other attorneys this author faced did not want to appear vulnerable. Pride is when attorneys serve their egos rather than their clients. Regarding greed, the expectation of financial reward for doing one’s job is the optimal outcome, but it must be balanced against blurring the ideals upon which the practice of law was founded. Clients can question the real return on their investment if they think their attorneys are more interested in the bottom line than the outcomes.
Our attorneys’ oath requires us to seek and to promote justice. The term “officer of the court” points to the fact that the law and legal profession are set in the larger context of life in our community. Incivility just feeds that negative image many non-lawyers have of our work. Every calling has a central value to promote. With law, it is the pursuit of justice.
In the practice of family law, attorneys, this author included, should remember that we are dealing with real people with real problems. The goals should be to bring a sense of order to troubled situations, to communicate directly about the legal and human difficulties involved, and to maintain full respect and civility for everyone with whom we deal. Civility is not inconsistent with a vigorous position taken on behalf of a client. It is not a mutually exclusive situation because we can be forthright advocates in the law while maintaining civility in legal practice. As a fellow of the American Academy of Matrimonial Lawyers, this author is reminded of our bounds of advocacy. The primary purpose of the bounds of advocacy is to guide matrimonial lawyers confronting moral and ethical problems.1 They are worth reading, and this author invites all family law colleagues to review them as often as possible.
Endnote
1. http://aaml.org/library/publications/19/bounds-advocacy/1-competence-and-advice.