As I slogged through the mandatory legal education classes a few months ago, a consistent concern emerged from both attorneys and judges. Without fail, they all mentioned a lack of civility in the practice of law -- with opposing counsel, with the tribunal, and with the process.
The Model Rules of Professional Conduct address civility by including general requirements that attorneys be fair to opposing parties and opposing counsel, maintain the decorum of the tribunal, and refrain from engaging in conduct that is prejudicial to the administration of justice.
In addition, many states and local bar associations have enacted voluntary codes of civility that go beyond the minimum requirements of the Model Rules. However, these voluntary codes are just that -- voluntary. They are guidelines and do not have enforcement mechanisms attached to them. Only a few jurisdictions have mandated civility, either through rules or attorney oaths.
Lawyer jokes aside, despite these rules and guidelines, the practice of law does not have the best reputation for respectful behavior. How can that be changed and where in their practice can attorneys incorporate this much needed civility?
Here are our tips for specific ways to incorporate civility into your law practice:
1 . Act like a courteous human being to others. This one isn't rocket science, and obviously includes clients, opposing parties, opposing counsel, court staff, judges, and anyone else with whom you have professional interactions. "Effective representation does not require antagonistic or acrimonious behavior," says the New York Standards of Civility. Zealous representation will no doubt include disagreement with others, but it can be done in a respectful manner.
2. Return all communication within 24 hours. If you are in trial or deposition, or otherwise unavailable, have someone else in the office do it, even if it is just to let the person know that you will get to it upon your return.
3. Call opposing counsel's office before scheduling depositions or hearings. Provided there is no prejudice to your client, work with opposing counsel's schedule to find a mutually agreeable date. There will come time when you will need someone to return the favor.
4. Pick up the phone and speak to opposing counsel if a war of words is beginning to escalate via email or letter. It is easy to misinterpret tone and meaning in emails and letters. It is also easy to get carried away in emails and letters. If an issue is heading to the court for resolution, demonstrate to the judge that you tried to work it out with a phone call.
5. Grant requested courtesies. Unless it adversely affects your client's interests, accommodate requests for extensions of time and waivers of certain formalities. You will gain the respect of opposing counsel, and there may come a time when you need the same courtesy.
6. Abide by agreements and promises that you make. Your reputation and your integrity will be gone in an instant if you fail to keep your word.
7. Show the court respect. Argue persuasively but refrain from using demeaning or disrespectful language. In appearances, address the judge and not opposing counsel.
8. Advise clients and associates of their duty to be respectful in any proceeding or professional interaction. Not only does it reflect poorly on you if they fail to do so, it disrespects the court and the legal process.
9. If you are going to impeach a witness, be respectful about it. One judge advised that he and the jury were impressed by attorneys who would advise the witness that they didn't enjoy this aspect of the job, but that they needed to ask these questions.
10. Don't violate court orders. This may seem obvious but it can arise if the meaning of compliance becomes muddied, or the reason for the ruling has changed. Deal with modifying court orders through the appropriate process and in the appropriate manner. This can come up particularly with motions in limine. There is a reason that motions in limine are dealt with prior to trial and outside the presence of the jury. If new facts become apparent, or the other side has opened the door such that the ruling should be reconsidered, ask to approach the bench to discuss the matter.
The California Attorney Guidelines of Civility and Professionalism emphasize that "civility in the practice of law promotes both the effectiveness and the enjoyment of the practice and economical client representation." Not only does civility improve the quality of life for practitioners, but engaging in disrespectful tactics reflects poorly on the profession and causes practitioners to risk losing credibility with their clients, the judge or the jury.