Aug 10 2014

Incivility by Lawyers Costs Clients Money, Time, and Results

In May 2014, the California Supreme Court adopted a new rule that modifies the oath new attorneys must take upon admission to the California bar. In addition to pledging to support the U.S. and California constitutions and to faithfully discharge the duties of an attorney and counselor at law, newly minted California attorneys must now solemnly swear that, “As an officer of the court, I will strive to conduct myself at all times with dignity, courtesy, and integrity.”

Dignity. Courtesy. Integrity. That these character traits should be exemplified in our daily business relationships should be self-evident to most professionals – indeed, they should be fairly obvious to most human beings. The fact that the California Supreme Court, along with high courts and bar authorities in many other states, feels the need to remind attorneys to act with civility and professionalism is an unfortunate commentary showcasing how many members of the legal profession still cling to the misguided notion that they need to leave behind such traits in order to be a zealous and effective advocate for their clients. Nothing could be further from the truth.

Uncivil, rude, or unnecessarily aggressive or abusive behavior among lawyers has become a serious problem in practice and perception over the past few decades. Such conduct can manifest itself in any number of ways, from shouting matches to the filing of pleadings and motions of dubious merit or containing coarse and insulting language. The mentality and motivation behind such conduct can include:

  • a mindset that litigation is war and that describes trial practice in military terms;
  • a conviction that it is invariably in your interest to make life miserable for your opponent;
  • a disdain for common courtesy and civility, assuming that they are ill-suited for the true warrior;
  • a wondrous facility for manipulating facts and engaging in revisionist history;
  • a hair-trigger willingness to fire off unnecessary motions and to use discovery for intimidation rather than fact finding; and
  • an urge to put the trial lawyer on center stage rather than the client or his [or her] cause.

Joseph J. Ortego & Lindsay Maleson, Incivility: An Insult to the Professional and the Profession, The Brief, Vol. 37, No. 3 (2008)

Additional justifications for such conduct include:

  • a perception (unfortunately all too true) that clients believe that the only good attorney is a nasty, aggressive attorney;
  • a belief that being cooperative and friendly with an opposing attorney demonstrates weakness that may be exploited;
  • a feeling of pride in being more aggressive and abusive than your opponent;
  • a misguided belief that a judge will be more likely to side with the more aggressive attorney;
  • a recognition that, the more adversarial a case becomes, the more time an attorney will need to spend on that case, thereby generating increased revenue for the attorney (of course at the expense of the client); and
  • a belief (often motivated by the desires of the client) that a goal of litigation is to create as much work as possible for the other side (and the more tedious and time-consuming the better).

Many reasons have been suggested to explain such an explosion in the lack of civility among lawyers, from increased economic pressure and competition, to a general coarsening of public dialogue in general, to a belief that clients want their lawyers to be ruthless sharks who take no prisoners and bar no holds. While some or all of these explanations may be true, the reality is that attorneys do a profound disservice to their clients, their profession, and our system of justice by acting like petulant toddlers or schoolyard bullies.

When a lawyer is unnecessarily adversarial, even in an inherently adversarial forum like litigation, the flurry of nasty letters, unpleasant phone calls, unnecessary or burdensome discovery, and motions over issues that could be otherwise more easily resolved, costs clients money while diverting attention from the real issues in dispute. Every minute spent fighting about inconsequential minutiae that distracts from or will have little or no impact on the outcome of the case or the positions of the parties is reflected in the monthly bills clients receive.

Similarly, a lack of civility and courtesy slows down the often already lengthy time it takes for a matter to conclude. Petty disputes can sometimes put the case on hold until they are resolved. When attorneys can’t agree on anything, then everything becomes a fight which exponentially increases the amount of time before the actual dispute between the parties can be addressed. Often, the court must spend its time refereeing disputes that arise out of nothing more than incivility or the inability of the attorneys to get along, further delaying not only that case, but also the hundreds of other cases on a crowded docket.

A poisoned relationship between opposing counsel also decreases the likelihood that the parties may reach a settlement of the dispute, because their own egos and emotions obscure their obligation to put the best interests of their clients first. It is difficult for an attorney to be reasonable, and to discuss well-reasoned positions with a client or opposing counsel, when incivility, unnecessary aggressiveness, and arguments over insignificant matters have overridden the original purpose of the litigation. The rapid resolution of disputes should be the goal of every attorney, and when that goal gets shoved aside and ignored due to the inability of attorneys to get along, the attorneys have done the ultimate disservice to their clients.

While some lawyers will continue to be uncivil and act like jerks regardless of oaths, sanctions, or other consequences, many courteous, cooperative, and civil attorneys find themselves acting in an uncivil or unnecessarily aggressive manner because they allow themselves to be baited into such behavior by the infuriating antics of opposing counsel. Although aggressive advocacy is, at times, necessary and unavoidable, and zealous representation of clients is always appropriate, a good attorney facing an argumentative, unpleasant, and needlessly uncivil attorney will heed the wisdom of Molière, who once said:

“A wise man is superior to any insults which can be put upon him, and the best reply to unseemly behavior is patience and moderation.”

No matter how aggressive and zealous an attorney must be in properly representing his or her client, such representation can always be done with respect, civility, and cooperation. Creating a good, professional, respectful, and civil relationship with opposing counsel (and the court) has always worked in the best interests of my clients, and I will continue to foster such relationships despite what may seem to be a contrary desire by others.

This article has been prepared by the Cohen Law Firm for informational purposes only and does not, and is not intended to, constitute legal advice. The information is not provided in the course of an attorney-client relationship and is not intended to substitute for legal advice from an attorney licensed in your jurisdiction.

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