Reclaiming Civility
By Martha Denning Moore

“What kind of fool are you…? A natural born fool or a self-made fool? In either event, if you want to play the dozens with me, then I think you’ve bitten a little more off than you can chew because I will be teaching you a lesson in civility, understand boy? I don’t know if because you feed off the public trough, you have your head so far up your anus you think it’s a rose garden … If you want to be an idiot, be an idiot on your own time, punk, because I do not suffer idiots or punks kindly.” –Letter from an Illinois attorney to opposing counsel employed by the Illinois Department of Human Rights, 2002

“Before the hearing this morning, it had been almost exactly nine years since I had set foot in a courtroom. Your performance and attitude amply demonstrated to me why that nine-year period was far too short. Please seriously consider retiring from the bench. You simply don’t have what is required to decide the kind of issues that you were presented in this case … Your absurdly fastidious insistence of decorum and demeanor mask an underlying incompetence. You act like a robot. Do yourself and Johnson County litigants a great favor and get off the bench now.” –Letter from a Kansas attorney to a presiding judge, 2002

During a deposition, a lawyer referred to opposing counsel as a “weasel,” with opposing counsel responding, “You are a bigger weasel.” In the same case, the lawyer grabbed opposing counsel’s tie and allegedly challenged opposing counsel to a fight. During a deposition, a lawyer struck opposing counsel, causing his glasses to fall to the floor; a lawyer pushed his forefinger into opposing counsel’s forehead; a lawyer directed profanity at opposing counsel, and then threw a pen at him; and a lawyer belittled opposing counsel by calling him a “nitwit.”

In other cases, a lawyer referred to opposing counsel as a “shyster” and a “lying son of a bitch.” A lawyer referred to a female opposing counsel as a “B, which rhymes with ‘witch.’” During trial, a lawyer leaped over the defense table and lunged at the witness on the witness stand. Other unruly actions include name calling, yelling, screaming, the use of threatening gestures and language, and the display of offensive and downright nasty dispositions.

What happened to civility? Good manners? Politeness? Unfortunately, civility appears to be on the fast track to extinction. The days of good old fashioned common courtesy and manners are rapidly vanishing.

Sadly, the examples cited above are not uncommon. There is a growing trend of incivility in the legal profession. Often lawyers justify these rancorous, bullying and “Rambo-style” tactics as an essential ingredient of zealous advocacy. Needless to say, zealous advocacy is a frail excuse for such bad behavior — “We can envision no case in which it would be proper to insult, belittle or demean any person or legal defense or to engage in disrespectful levity” (Weiand v. Florida, 701 So2d 562, 565 (Florida Ct. App. 1997; rev’d on other grounds 732 So2d 1044 (Florida Sup. Ct. 1999)). Civility in no way contradicts good advocacy. Quite the contrary, civility fosters a cooperative, collaborative atmosphere, resulting in the amicable and efficient resolution of disputes. No one wants to deal with offensive personalities, which hinder the efficient resolution of cases.

Further, when dealing with rancorous and obstinate opposing counsel, valuable and costly time is wasted mediating juvenile wrangling that has nothing to do with the underlying case. Communication between opposing counsel is inhibited and settlement talks are jeopardized, thereby further prolonging cases to the detriment of clients. Such shameful behavior must not be encouraged nor tolerated in any shape or form.

Lawyers are required to represent clients zealously and competently. However, the practice of law is not free of rules. It is not unrestricted combat. Rules of engagement apply — ethics and civility.

The growing trend of incivility in the legal profession is evidenced by the development of an entire body of law. Indeed, “it is a sad commentary on the current state of the practice of law that there is a developing case law on assaults, abusive language and other incivilities. …” (MI Disciplinary Opinion, 00-61-GA, 2003).

No one is suggesting that attorney disciplinary authorities, or even other lawyers, act as language or legal conduct police. However, lawyers must act as guardians of civility to preserve the already diminishing reputation of lawyers. “Membership in the Bar is a privilege burdened with conditions” — fostering and maintaining civility is one of these burdens (In Re Rouss, 221 NY 81, 84(1917)).

“Upon admission to the Bar, a lawyer accepts and agrees to be bound by rules of conduct significantly more demanding than the requirements of law applicable to other members of society” (Commissioner v Alison, 317 Md. At 535), and accordingly, good lawyers must vigorously act to stem the rapid erosion of common decency and civility in the legal profession.

Admittedly, the United States legal system is adversarial in nature. Typically, lawyers advocate on behalf of a client against an opposing party. Granted, occasionally in the course of the representation, issues become hotly contested and debated. Nonetheless, a contentious case does not provide an excuse to discard common decency and courtesy. Lawyers can maintain excellent advocacy without engaging in rude, obtrusive or threatening behavior. Afterall, opposing counsel is not a mortal enemy, but merely representing a client. Skilled lawyers can be adversaries without being adversarial.

Rambo-styled bullying antics reflect a feeble attempt to camouflage incompetence, a specious legal position or some other inadequacy. These tactics do nothing to advance the speedy and efficient administration of justice; rather, they operate to the contrary. The protection of clients and the preservation of the reputation of the legal profession are at stake. Lawyers must reclaim civility as fundamental to the proficient practice of law. Upright lawyers, unlike the lawyer referenced in the opening paragraph herein, must teach lessons in civility. Such lessons naturally flow as upright lawyers conduct themselves in a manner fitting the epitome of professionalism and civility.