. Legal ethics

The world needs a “healthy dose” of lots of things.

Frankly, civil behavior by lawyers toward other lawyers certainly is on the list of things the world needs a healthy dose of, but, well, let’s just say maybe it’s not a top-10 item on the list.

So, the point of today’s post is not to be the guy who claims that lawyers shouldn’t have to be civil to each other. I am not that guy. Civility is a net positive in the profession.

What I do want to write a bit about though, because discussions about the need for increased civility in the legal profession are all the rage right now (and, in fact, I’m going to be part of a panel discussion later this month on the topic, the difference between reminding lawyers of the need to treat human beings with respect and “weaponizing” the idea of civility to hamstring the ability of a lawyer to pursue a client’s claims and rights, particularly when that can tend to unfairly prejudice the “Davids” of the world in favor of the already-favored “Goliaths.”

I also want to stress the fact that there is already a rule of professional conduct that is sufficient to address those aspects of incivility that should be treated as unethical.

Let’s talk in varying degrees of detail about three of the most recent news items driving the civility discussion and identify which one of them I have some real problems with.

The quote in the title of today’s post comes from this ABA Journal article about remarks made by the Chief Justice of the West Virginia Supreme Court in connection with that court’s proposal to amend the attorney oath of office to better mandate civility.

Much more media attention rightly has been focused upon this ruling from the D.C. District Court admonishing a high-profile Big Law attorney (who actually had to step away from a Presidential appointment in the new administration because of this matter) for her characterizations of the conduct and demeanor of opposing counsel during a deposition, a videotaped deposition. Whether this ruling is correct in terms of the application of Rule 11 is not something I want to spend any time discussing. Whether this ruling properly points out the kind of things a lawyer shouldn’t do is.

The core description of the situation can be understood from the court’s opinion itself which indicated that each of the following were statements made by lawyers in the record about the conduct of their opposing counsel during the deposition but for which the Court could find no support in viewing the videotape of the deposition: opposing counsel was “agitated and combative,” opposing counsel “lashed out at the witness,” opposing counsel “became unhinged … and repeatedly attacked and baselessly threatened to seek sanctions against the witness and counsel,” opposing counsel engaged in “browbeating and disrespectful behavior,” opposing counsel was “indignant and adversarial,” “agitated and aggressive,” and opposing counsel “demonstrated a general lack of respect towards a professional adversary.”

Mischaracterizing the way another lawyer has behaved is certainly troubling conduct. While perhaps some of the descriptors are entirely subjective, not all of them are. The fact that, as the court points out, the deposition in question was videotaped also makes it pretty hard to feel any sympathy for the lawyer who ended up sanctioned after they persisted in trying to say that the descriptions of the other lawyer, which everyone else seems to agree were not reflected on the videotape, were somehow justified.

But I also want to be clear about what the case did not involve which is an even more toxic approach to mischaracterizing the behavior of another lawyer but which only “works” if the deposition isn’t being videotaped. We likely all have encountered a lawyer who, back in the days when videotaping depositions was a much less frequent experience, would make statements and assertions about events to make a “record” on paper of something happening that was not actually going on. Statements such as “please stop raising your voice at the witness,” or “you need to calm down, you’re way too worked up,” “I’d ask you to stop rolling your eyes at the witness’s answers,” or “what was that gesture? No one appreciates that” and the like can be a “go to” approach for trying to gaslight later readers of an otherwise dry deposition transcript.

Now, contrast the D.C. case with this ruling from a district court judge in Florida demanding that attorneys representing both sides in a lawsuit against a cruise line refile past filings after removing all of the language that the judge found inappropriate. (Former APRL President Jan Jacobowitz has written a bit about this ruling here.)

In the Florida case, the court explained its concerns as follows:

The Florida Bar Oath of Admission, which every attorney
licensed in the state of Florida swears to obey, states in part,

To opposing parties and their counsel, I pledge
fairness, integrity, and civility, not only in court,
but also in all written and oral communications. I will
abstain from all offensive personality and advance no
fact prejudicial to the honor or reputation of a party
or witness, unless required by the justice of the cause
with which I am charged.

The Florida Bar’s Creed of Professionalism provides further
clarity on the manner in which attorneys should conduct themselves
in the practice of law. It states, in part, “I will abstain from
all rude, disruptive, disrespectful, and abusive behavior and will
at all times act with dignity, decency, and courtesy.”

Upon review of the record and the parties’ filings, this Court
notes that the conduct displayed by counsel for both Plaintiffs
and Defendant runs afoul of the tenets of professionalism set forth
by the Florida Bar.

The problem, of course, comes in reading further the examples that the court cites which almost exclusively do not involve the lawyers denigrating or being uncivil to each other, but rather involve characterizations by lawyers of the conduct of the opposing party itself. For example, the Florida judge took umbrage at:

First, Plaintiffs dedicate an entire section of their Motion
for Partial Summary Judgment to what they entitled “ROYAL
Defendant of “lying to authorities,” “attempting to deceive this
Honorable Court,” and engaging in, “corporate misconduct [which]…
appears to know no bounds” [D.E. 128]. Plaintiffs further accuses
Defendant’s Captain of lying to the U.S. Coast Guard, and state
that the Defendant “doubled down on the Captain’s lie to the Coast
Guard by again lying to a United States Federal District Court.”
Plaintiffs further claim that Defendant’s ‘lies’ were “the genesis
of the Puerto Rican authorities ultimately pressing (baseless)
criminal charges against Mr. Anello,” and ultimately accuse the
Defendant of making “merciless efforts to frame an innocent man,
intentionally destroy evidence, and mislead this Honorable Court
(and the U.S. Coast Guard and the Puerto Rican authorities).”

The problem with most of the language that this court found problematic is that the court seems unwilling to acknowledge that there is fundamentally a difference between saying that lawyers should generally treat other lawyers, as well as other people involved in proceedings, with civility and essentially hamstringing a lawyer from being able to pursue a client’s case. Now, admittedly, I have no insight into any of the players in the case nor any reason to know if anyone was not telling the truth, but, fundamentally, the notion of civility must not be used to prevent lawyers from being able to point out when an adverse party is actually lying.

There are, in short, very few ways to inform a court that you believe that your client’s litigation adversary is lying in a way that is guaranteed to be viewed as “civil.” There is no doubt that accusations of lying are made far too casually by members of our profession, but that does not mean that there are not instances when litigants are, in fact, lying and lawyers must be free to plainly and directly say so when their client needs them to do so.

And it is for that reason that I tend to be wary of efforts to expand existing ethical prohibitions, or adopt new rules, in the name of encouraging civility. I tend to think that the rules already address what needs to be prohibited through Model Rule 4.4(a)’s prohibition that in representing a client “a lawyer shall not use means that have no substantial purpose other than to embarrass, delay, or burden a third person….”

Any jurisdiction that has that version of RPC 4.4(a) has what it needs to get at the kind of uncivil behavior that should be curtailed.