“Every time an abrasive, abusive, hostile, harassing, combative, discourteous, win-at-all-costs, take no prisoners, scorched earth, Rambo lawyer loses, it’s a great day for civility.”1
In the legal profession, particularly among litigators, the perceived dichotomy between forceful advocacy on the one hand and professionalism and civility on the other leaves many attorneys struggling to strike the right balance.
Some misconstrue civility with weakness. They believe effective advocacy demands a lack of courtesy and cooperation, or worse.
Take for example one Florida attorney’s motion for rehearing. Referring to opposing counsel’s arguments, he claimed to be appalled that the appellate panel “would buy such nonsense and give credence to such total bull****,” argued that opposing counsel’s arguments were “ridiculous” and “a joke,” and added “the use of the term ‘total bull****’ without the inclusion of at least two or three intervening expletives is very kind and generous under the circumstances.”2
In another case, the prosecutor called the defense attorneys “maggots” and “poor excuses for human beings” and, in return, one of the defense attorneys implied that the prosecutor was a “scum bag.”
The dispute devolved to the point that the court and the attorneys were arguing over which term was worse.3
However, the Florida Supreme Court is increasingly focused on putting a stop to uncivil and unprofessional behavior.
The enforcement is part of a professionalism movement that began nearly 30 years ago with a task force that studied the perceived decline in attorney professionalism.
In a recent case, the high court permanently disbarred an attorney for a pattern of “defiant and contemptuous conduct that demeaning to this Court” including among many other professional violations, the attorney’s “tirades and antagonistic behavior” in exchanges with judges and other attorneys.4
“While we often refer to trials and court proceedings in terms which reflect that the litigants are engaged in combat, the courtroom remains a place where civilized society resolves disputes without physical altercation,” the court wrote.5
Civil debate, disagreement and discourse is a cornerstone of our democratic society and our justice system.
But to protect the integrity of our legal system, we must maintain professionalism and civility in our interactions with each other and the court.
“Professionalism is the pursuit and practice of the highest ideals and tenets of the legal profession … The essential ingredients of professionalism are character, competence, commitment and civility.”6
Civility is “how you treat others. [It] is courtesy, dignity, decency and kindness.”7
But why be civil? Aren’t we gladiators? Bulldogs? Hired guns?
As a starting point, we must understand the term civility. Acting civilly does not mean being a chump, a pushover or a sucker.
“Civility is not inconsistent with zealous advocacy. You can be civil while you’re aggressive, upset, angry and intimidating; you’re just not allowed to be rude.”8
Effective advocacy and civility are not mutually exclusive. You can be civil while forcefully, firmly and aggressively advocating for your client.
“Civility values diversity, disagreement and the possibility of disagreement.”9 “Civility allows criticism of others, and sometimes even requires it, but the criticism should always be civil.”10
The first reason we should act with civility is because, as attorneys, we are required to do so.
According to the Florida Supreme Court, we shall not engage in unprofessional conduct, which is defined as the “substantial or repeated violations of the Oath of Admission to The Florida Bar, The Florida Bar Creed of Professionalism, The Florida Bar Professionalism Expectations, the rules regulating The Florida Bar, or the decisions of the Florida Supreme Court.”11
The Oath of Admission requires attorneys to solemnly swear to “pledge fairness, integrity and civility, not only in court, but also in all written and oral communications.”
The professionalism expectations require “lawyers to be honest, diligent, civil and respectful in their interactions with others.”
The Jacksonville Bar Association’s Professionalism Guidelines suggest that “a lawyer should be courteous and civil in all professional dealings with other persons” and “effective representation does not require antagonistic or acrimonious behavior.”
But we shouldn’t act with civility just because we’re told to do so. The public’s respect for the law depends on it.
“The implications of for the American justice system are extremely serious in that the behavior contributes to decreased public confidence in legal and judicial institutions. . . .”12
When attorneys behave in an unprofessional and uncivil manner, the public loses confidence in both the legal profession and the civil justice system itself.
“Unproductive and costly bickering among lawyers . . . justifiably subjects the legal profession as well as the civil justice system to public distrust, derision and criticism.”13
What makes our profession special is our ability to disagree and debate in a persuasive, thoughtful and civil manner. That is the essential trait of a skilled attorney.
Anyone can argue. When the public witnesses unskilled lawyers engage in overheated rhetoric, name-calling or other uncivilized behavior, it erodes their perception of attorneys, our profession and our justice system.
In addition, the independence of our profession depends on our civility.
We are a self-regulated profession which, as explained in the Preamble to the Rules of Professional Conduct, “helps maintain the legal profession’s independence from undue government domination . . . for abuse to legal authority is more readily challenged by a profession whose members are not dependent on the executive and legislative branches of government for the right to practice.”
However, legislators may perceive a need to intervene if we prove incapable of effectively regulating ourselves and allow our interactions with each other to be combative, threatening, abrasive, intimidating, and sarcastic.14
Your professional reputation is based on how you treat others.
We all probably know of attorneys who have a reputation for being unprofessional and uncivil. They have earned that reputation through years of dedication to it.
Those are not attorneys who are known for getting great results for their clients or for being effective or efficient. When you establish a reputation for incivility, your interactions with other attorneys and judges are met with immediate suspicion.
Simply put, your professional life is more difficult when you are known as an abrasive, uncooperative jerk.
Your client saves money, even in heated litigation, when you are able to engage with opposing counsel and the court in a civil manner.
“In a market-based system of legal representation, it is convenient for lawyers to leave no stone unturned for clients who pay by the stone.”15
When you get paid to fight, some attorneys see a benefit in stirring up a lot of fights.
But there is no doubt the cost of litigation soars when counsel are unable to stay focused on the merits of the case and instead fight at every intersection, object to every deposition question or discovery request, engage in expensive letter-wars, and litter the docket with incessant bickering.
Finally, attorneys who treat others with civility are more effective.
Uncivil behavior in front of judges and juries, or that makes its way in front of either, does not typically have the persuasive effect intended. And it seldom causes opposing counsel to back down. More likely, it inflames counsel’s passion to win.
The too-cute jab, bench slap, exaggerated criticism, abrasive behavior or unyielding refusal to cooperate typically backfires and has the unintended consequence of making the uncivil lawyer look simpleminded.
We are fortunate to practice in Northeast Florida, where the local Bar is collegial and the overwhelming majority of attorneys and judges conduct themselves with the utmost civility and professionalism.
It is incumbent on each of us – attorneys and judges alike – to hold the line.
1 Bob Josefsberg, The Topic Is Civility - You Got A Problem With That? THE FLORIDA BAR JOURNAL, January, 1997.
2 5-H Corp. v. Padovano, 708 So. 2d 244, 244-45 (Fla. 1998).
3 Landry v. State, 620 So. 2d 1099, 1103 (Fla. 4th DCA 1993).
4 The Florida Bar v. Norkin, 132 So. 3d 77 (2013).
6 The Florida Bar’s Henry Latimer Center for Professionalism, 2014-2016 Professionalism Handbook.
7 Bob Josefsberg, The Topic Is Civility - You Got A Problem With That? THE FLORIDA BAR JOURNAL, January, 1997.
9 Prof. Stephen L. Carter, CIVILITY: MANNERS, MORALS AND THE ETIQUETTE OF DEMOCRACY.
11 In re Code for Resolving Professionalism Compl., 116 So. 3d 280 (Fla. 2013) and In re Amends’ to the Code for Resolving Professionalism Compl., 174 So. 3d 995 (Fla. 2015).
12 Conference of Chief Justices, A National Action Plan on Lawyer Conduct and Professionalism, January 21, 1999; see also American Civil Trial Bar Roundtable Policy Paper on Increasing the Professionalism of American Lawyers at 2-3.
13 Sidag Aktiengesellschaft v. Smoked Foods Prods. Co., Inc., 969 F. 2d 1562, 1562 (5th Cir. 1992).
14 42 Judges’ Journal 17 (2003), Sticks and Stones: Judicial Handling of Invective in Advocacy.
15 Deborah L. Rhode, An Adversarial Exchange on Adversarial Ethics: Text, Subtext and Context, 41 J. LEGAL EDUC. 29 at 37 (1991).