Can lawyers properly advocate for their clients without being aggressive toward opposing counsel? Many say no—aggressiveness is part and parcel of advocacy. And over the past few decades, anyone who is in the ring with lawyers would agree that there has been an increase in aggressiveness, also characterized as incivility.
Many say the incivility is unwarranted and counterproductive. Others say the incivility is effective and rewarded by better settlements or rulings for their clients. As reflected in the Illinois Supreme Court Commission on Professionalism’s statewide survey of Illinois lawyers, most agree that a consequence of all this incivility is that the public’s image of the legal profession continues to tank.
The supreme courts in each state, which are responsible for regulating lawyer ethics, have taken various approaches to curbing incivility and promoting more professional behavior. Some states, including Illinois, have formed Commissions on Professionalism to educate and inspire better behavior. Other states have enacted civility codes, and sometimes lawyers who violate the civility code may be subject to discipline, just as they may be disciplined for violating the code of ethics.
Civility in the Code of Professional Conduct
Although each state supreme court enacts its own code or rules of professional conduct, most generally follow the model rules adopted by the American Bar Association. Until 1990, that was the Model Code of Professional Responsibility. The Code contained disciplinary rules (DRs), governing such topics as confidentiality of client matters, conflicts of interest, diligence and competence, as well as ethical considerations (ECs), attached to each rule, that contained narrative describing the aspirational goals beyond the rule.
In 1990, the ABA replaced the Model Code of Professional Responsibility with the Model Rules of Professional Conduct. The stated ethical considerations were shorn from the Rules. The rationale of the change makes great sense: lawyers should be disciplined only for clear disciplinary rule violations, not failure to adhere to aspirational goals.
So what disciplinary rules relate to civil behavior? There is no specific rule that says lawyers have to be civil. However, many of the ethical rules imply as much. For example, Rule of Professional Conduct 4.4(a) states, “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….” and Rule 8.4(d) provides that it “is professional misconduct for a lawyer to…(d) engage in conduct that is prejudicial to the administration of justice.” Rule 1.3 says lawyers should be diligent when representing a client. However comment 1 to the rule says that although a lawyer should act with “zeal in advocacy,” that does not mean a lawyer is bound to “press for every advantage” on a client’s behalf.
The lawyer’s duty to act with reasonable diligence does not require the use of offensive tactics or preclude the treating of all persons involved in the legal process with courtesy and respect.”
In practice, however, these provisions rarely, if ever, are used to discipline attorneys for uncivil tactics. So some argue that there is no curb or deterrent to lawyers engaging in overly aggressive tactics that prolong disputes, cost clients a lot of extra money, and bring the legal profession into disrepute in the eyes of the public.
The Rise of Civility Codes as a Professional Ethics Requirement
In response to the rise in incivility, over a hundred state professionalism commissions, bar associations, and other legal organizations have enacted voluntary civility codes, also called creeds of professionalism or statements of principles of civility or professionalism. These voluntary codes are akin to the ethical considerations that used to be included in the Code of Professional Responsibility—they serve as guides or suggestions for behavior. But there is no evidence that voluntary codes and creeds have been successful in changing attorney behavior.
Some states have gone further, focusing on the newest lawyers. Florida, South Carolina, Utah, New Mexico and California have added a civility pledge in the oath that a lawyer must take upon admission to the bar. The South Carolina and Florida pledges are typical and identical:
To the opposing parties and their counsel, I pledge fairness, integrity, and civility, not only in court, but also in all written and oral communications.”
Will this make any difference in lawyer behavior? It is debatable.
Some say that only forcing lawyers to be civil will make a real difference. A couple jurisdictions including Florida and South Carolina doing just that. The Florida Supreme Court has stated that incivility undermines the integrity of the administration of justice to such an extent that civility must be made mandatory and enforced through a complaint and intervention process that may be “off the record.”
Opponents of this approach argue that making lawyer subject to coerced compliance for incivility is too subjective a standard and will violate a lawyer’s constitutional rights of free speech and due process. They also say it will inhibit proper advocacy and work for reform and that it avoids addressing the underlying causes of incivility.
All this and more will be debated this Sunday, August 2 at 10:30 am in the American Bar Association’s Showcase CLE presentation, “Policing Lawyer Manners, The Complicated Question of Civility Compliance.” I am moderating a panel of distinguished lawyers who will come at this issue from all directions. It is an important discussion; hope to see you there.