“And do as adversaries do in law — strive mightily but eat and drink as friends.” – William Shakespeare, The Taming of the Shrew.
It has been a long time (400 years?) since lawyers were held up as the poster children for civility. Rambo tactics and scorched earth strategies can be seen in courtrooms around the country. As a result, surveys show that respect for the legal profession has plummeted and almost everyone associated with the practice of law is miserable.
But that may be changing.
The California Supreme Court recently became one of a half-dozen states to require that new lawyers promise to play nice. Starting May 23, new lawyers must take a pledge to be admitted to the California bar in which they promise to strive to conduct themselves “at all times with dignity, courtesy, and integrity.” A civility provision also has been incorporated into attorney oaths in South Carolina, Utah, New Mexico, Florida and Arkansas.
The California initiative is part of a movement called “Civility Matters” that was started about five years ago by the American Board of Trial Advocates (ABOTA), which requires its members to treat everyone – opponents, witnesses and judges – with dignity and respect.
The entire California oath for new attorneys is now: “I solemnly swear (or affirm) that I will support the Constitution of the United States and the Constitution of the State of California, and that I will faithfully discharge the duties of an attorney and counselor at law to the best of my knowledge and ability. As an officer of the court, I will strive to conduct myself at all times with dignity, courtesy, and integrity.”
By including a civility clause, the state Supreme Court effectively empowers itself to withdraw its permission for an offensive attorney to continue to practice law in that state. It remains to be seen, of course, how the Court will choose to enforce the rule.
Nadir of Professionalism?
A few decades ago, the bar began to change with the unchecked proliferation of law schools churning out attorneys who were forced to hustle for work and who, sometimes, pursued victory at all costs.
In 2009, U.S. District Judge Gene Ellen K. Pratter documented the decline in attorney professionalism in a Pennsylvania case brought by a school custodian who alleged race discrimination and retaliation . Higgins v. Coatsville Area Sch. Dist., No. 07-4917, slip op. at 10 (E. D. Pa. Sept. 16, 2009) (mem. op.).
Judge Pratter observed that the lawyers in the case, Lewis Hannah and James E. Ellison, “crossed the line between appropriately aggressive advocacy and unrestrained, pointless offensive name-calling” during a deposition of a school official identified as Dr. Walker. She quotes from a transcript of the deposition:
“For instance, when Defendants’ counsel, Mr. Ellison, objected to a question posed by [plaintiff's counsel] Mr. Hannah to Dr. Walker, Mr Hannah responded, “Shut up. You are such an a-hole.” Mr. Ellison’s rejoinder was, “Next question. Dr. Walker, [Mr. Hannah]’s off his meds today. Pay no attention to that.”
Judge Pratter said both attorneys were at fault but that Hannah “racheted the acrimony higher and the standards lower, using a few choice epithets for Mr. Ellison, by angrily referring to defense counsel at least four times as, among other things, a certain unattractive end-piece of anatomy.”
At one point, Judge Pratter said, Hannah called Ellison “boy” – both Hannah and Ellison are African-Americans. Pratter noted that one of the allegations brought by Hannah’s client, also an African-American, was that Dr. Walker allegedly called him “boy.” Ellison and Dr. Walker walked out of the deposition and Ellison sought sanctions against Hannah.
“Treating an adversary with advertent discourtesy, let alone with calumny or derision, rends the fabric of the law,” observed Judge Pratter.
She required Hannah to attend a continuing legal education course dealing with civility and professionalism. In an apparent reference to the Shakespeare’s quotation above, the judge also required both counsel to meet together “for an informal meal in an effort to facilitate the repair of their professional relationship” and then report back to the court.
Judge Pratter referred to various rules of professionalism adopted by Pennsylvania bar associations. “Perhaps the adversaries in this case can be reinspired to achieve the Shakespearean vision and the aspirational goals of the very rules of professional conduct by which counsel have pledged to abide, wrote Judge Pratter.