Be Nice: More States Are Treating Incivility as a Possible Ethics Violation
By G. M. Filisko
Apr 1, 2012, 08:20 am CDT
Incivility among lawyers is not a new concern. But as the general tone of public discourse in the United States becomes more heated, the issue of civility—or lack thereof—within the legal profession appears to be moving to the front burner.
“Civility used to be inherent in public discourse. Where did we go wrong?” said then-ABA President Stephen N. Zack in a speech during the 2011 ABA Annual Meeting in Toronto. “As lawyers, we must honor civility,” said Zack, the administrative partner at Boies, Schiller & Flexner in Miami. “Words matter. How we treat others matters.”
The ABA’s policymaking House of Delegates also endorsed (PDF) a renewed commitment to civility during last year’s annual meeting, but it wasn’t the first time the House has addressed the issue. In 1995, the House adopted a resolution (PDF) encouraging bar associations and courts to adopt standards of civility, courtesy and conduct as aspirational goals to promote professionalism of lawyers and judges.
But aspirations may not be enough in an increasingly competitive environment that doesn’t always seem to reward courtesy and cooperation.
“There are more pleadings, and there’s more discovery, which provides more opportunities for attorneys to lose their cool and snap,” says Jimmie L. McMillian, a partner at Barnes & Thornburg in Indianapolis who was a panelist for a recent ABA-sponsored CLE webinar about the impact of lawyer incivility on clients. “Lawyers are operating under more pressure in terms of billable hours, getting clients and being a lawyer who’s different. TV also plays a role. Just as clients are susceptible to thinking their lawyer has to act like that, you have lawyers who feel they have to perform—and I do use the word perform—like that.”
Moreover, there is no clear consensus on what defines incivility. Brian S. Heslin, another panelist on the program, draws the line at personal attacks. “You’re not crossing the line when you’re belittling the other side’s position or facts,” says Heslin, a member of Moore & Van Allen in Charlotte, N.C. “But when that type of communication is directed at the individuals themselves—say their training, personality, color, ethnicity or age—that’s when we saw people cross the line.”
Lawyers engaging in uncivil behavior run the risk of court sanctions, but in a growing number of jurisdictions, incivility also may land them in front of their state disciplinary bodies on charges of violating ethics rules.
The ABA Model Rules of Professional Conduct don’t specifically address civility. Nevertheless, a lawyer’s alleged incivility may implicate the competence provisions in Model Rule 1.1 or, more often, Rule 8.4, which contains broad provisions covering misconduct—including dishonesty, fraud, deceit or misrepresentation—and, as stated in Rule 8.4(d), conduct “that is prejudicial to the administration of justice.”
“Rule 8.4(d) is where most people are likely to land,” says Wallace E. “Gene” Shipp Jr., bar counsel at the District of Columbia Bar. “Let’s say you’re in a deposition and behave badly by throwing papers at your opponent or causing objections because you treat the witness so badly. That impacts on the administration of justice.”
BE CIVIL—OR ELSE
The District of Columbia Bar has voluntary rules of civility for lawyers, but some states are addressing the problem with more forceful measures.
Geoffrey Nels Fieger—famous for his defense of Dr. Jack Kevorkian on murder charges stemming from an assisted suicide case—came up against Michigan’s mandatory civility rules after lambasting several state appellate judges in conjunction with a malpractice case (that did not involve Kevorkian). On Aug. 23, 1999, during a broadcast of his popular radio show three days after a three-judge panel of the Michigan Court of Appeals overturned a $15 million jury verdict for his client, Fieger said, “I declare war on you,” identifying the judges by name, according to a Jan. 20, 2009, opinion in the case by the 6th U.S. Circuit Court of Appeals at Cincinnati.
In a broadcast two days later, Fieger upped the ante, calling them “three jackass court of appeals judges.” When someone else on the broadcast mentioned the possibility of “innuendo,” Fieger said, “I know the only thing that’s in their ‘endo’ should be a large, you know, plunger about the size of, you know, my fist.” He also compared them to Adolf Hitler and other Nazis.
The state Attorney Grievance Commission filed a complaint alleging that Fieger, who is lead attorney at Fieger Law in Southfield, Mich., violated Michigan Rule of Professional Conduct 3.5(d), which prohibits lawyers from engaging in undignified or discourteous conduct toward a tribunal; and Rule 6.5(a), which states, “A lawyer shall treat with courtesy and respect all persons involved in the legal process.”
Fieger stipulated to a disciplinary reprimand while reserving his right to bring a separate challenge to the rules on First Amendment grounds. In that challenge, a federal district court decided that the rules were unconstitutionally broad and vague, and enjoined their enforcement. But the 6th Circuit vacated that decision, holding that Fieger lacked standing to bring his challenge.
“Partly because of MRPC 6.5, Michigan has had a string of cases involving lawyers’ conduct or statements toward other lawyers in the hallway of a courtroom, in a courtroom, in depositions, or against security officers as lawyers are going through the metal detector,” says John F. Van Bolt, executive director and general counsel for the Michigan Attorney Discipline Board.
“If there’s actual physical touching, that’s one thing. We had a case in which the lawyer, in the course of words with another attorney at a deposition, grabbed the attorney’s tie. One witness said he yanked it violently, and another said he touched it briefly. In those cases, there tends to be a finding of misconduct. But if it’s a single incident without physical contact, the sanction tends to be not too severe.”
However, even Michigan disciplinary hearing panels disagree on how to address alleged incivility. “If there’s only been pure speech—someone saying, ‘You’re an asshole’ or ‘You’re a lying bastard’ in a private phone conversation—at least one hearing panel said that, while it didn’t condone the behavior, it declined to be the language police,” Van Bolt says.
THE PERSONAL APPROACH
Florida recently changed its oath of admission to include a duty of civility in oral and written communications, says John T. Berry, director of the legal division of the Florida Bar. But its complaint against one attorney, decided by the Florida Supreme Court in 2010, alleged that the attorney’s conduct violated the prohibition against “conduct prejudicial to the administration of justice” in the state ethics rules for lawyers.
The incident giving rise in the complaint against Robert J. Ratiner is described in the supreme court opinion (PDF). During a deposition in 2007, Ratiner’s opposing counsel tried to affix an exhibit sticker on his laptop computer. Ratiner briefly touched his opponent’s hand and then attempted to run around the table toward him. The deponent said she was very scared by Ratiner’s behavior, and the court reporter said, “I can’t work like this!” Ratiner’s own consultant tried to calm him down, telling him to “take a Xanax.”
While finding that Ratiner’s “behavior during the laptop incident was unacceptable and unbecoming of any member of the bar,” the Florida Supreme Court declined to accept the referee’s recommendation that he be disbarred or have his license suspended for two years.
Instead, the court imposed a 60-day suspension and a two-year probationary period, required him to undergo mental health counseling, and directed him to bring bar-approved co-counsel to all depositions during the probationary period or arrange to have them videotaped.
A growing number of state supreme courts and bar associations are joining states like Florida and Michigan in taking up the civility mantle. The Pennsylvania Supreme Court and the state’s bar association both adopted civility codes. And the Utah Supreme Court implemented standards of professionalism and civility in 2003, according to the ABA Center for Professional Responsibility.
But until court rules and ethics codes catch up with the problem, some practitioners say a personal approach is the best way to counter incivility.
Charles R. Gallagher III, the managing partner at Gallagher & Associates Law Firm in St. Petersburg, Fla., uses food to soothe opposing counsel. “I send a letter asking to break bread. I’ll say, ‘I don’t know how we got off on this path, but I apologize and I want to start anew.’ Often, they’ll say, ‘I must have had a bad day when we started. I apologize, too, and let’s break bread.’ Others say, ‘Go to hell.’ ”
When he made the gesture to one opposing counsel, Gallagher says, she responded, “ ‘You’ve got a shit case, I have no respect for you, and you’ve got to be prepared for the ire of me and my firm.’ To this day, the case has been rancorous.”