Standard 3 - Baby Steps . . . Toward Civility
by Robert S. Clark
Insults, personal attacks, intimidation, verbal abuse. Too many, both inside and outside the legal profession, assume that such conduct has become so deeply rooted among lawyers that it can't be eradicated. No one seems to deny the erosion of civility among lawyers. To a degree, misbehavior by imperfect participants is inevitable in the rough and tumble of an adversarial process, but few would argue that incivility advances the fair administration of justice. I believe we must not stand idly by and allow corrosive behavior to thrive until it dominates our system of justice.
Behavior that impugns the personal motives of an adversary, or that demeans, humiliates, disparages, or insults others, goes to the core of the concern. Reported illustrations would be humorous if they were not so shocking. Imagine the misery of facing counsel who calls his opponent a "stooge;" a "puppet;" a "weak pussyfooting deadhead" who "had been dead mentally for ten years;" "incompetent;" "inept;" a "clunk;" "wasting endless hours;" "a starving slob;" and an "underling who graduated from a 29th-tier law school." In Re First City Bancorporation, 282 F.3d 864, 866 (5th Cir. 2002). Other examples include calling opposing counsel "a second rate loser." Lee v. American Eagle Airlines, Inc., 93 F. Supp. 2d 1322, 2000 U.S. Dist. Lexis 4198 (S.D. Fla. 2000); use of a vulgar name followed by "You could gag a maggot off a meat wagon." Paramount Communications, Inc. v. QVC Network, Inc., 637 A.2d 34, 52 (Del. 1994).
As a profession, we have a duty to decry behavior that interferes with a just and fair process. Utah's Standards of Professionalism and Civility address the issue clearly and directly. But they are not a cure-all. Some say the standards are flawed because they include subjective language. Others say they make the problem worse because no sanctions are attached, allowing the most egregious offenders to steamroll compliant lawyers at the expense of their clients.
What do standards accomplish in the absence of an enforcement mechanism? "Standard" is defined as: "something that is established by authority, custom, or general consent as a model or example to be followed." The dictionary further explains that the word "standard" "applies to any authoritative rule, principle, or measure used to determine the quantity, weight, or extent, or esp. the value, quality, level or degree of a thing." Webster's Third New International Dictionary 2223 (1986). The Professionalism Standards are an authoritative statement of expectations. They are a model or example of the quality of behavior to which lawyers should conform. They provide principles upon which the behavior of lawyers can be measured to determine the quality of professionalism.
Clear identification of ideals can change behavior. By the age of sixteen, George Washington had handwritten 110 "Rules of Civility and Decent Behavior," based on much older writings of French Jesuits. The first rule was: "Every action done in company, ought to be with some sign of respect, to those that are present." Number 49 states: "Use no reproachful language against anyone neither curse nor revile." The 58th rule was: "Let your conversation be without malice or envy . . . and in all cases of passion admit reason to govern." The last rule is a global reminder: "Labor to keep alive in your breast that little spark of celestial fire called conscience." Does identifying a subjective ideal have value? Recent scholarship suggests that Washington's character was the result of conscious effort on his part, not an accidental accomplishment or an inherited grace. See, e.g., Joseph J. Ellis, His Excellency: George Washington.
But isn't there a problem with subjectivity and ambiguity in prohibiting, for example, "hostile or demeaning" behavior? How could such a standard ever be enforced? Some conduct is clearly over the line. For the closer questions, there is still value in stating a principle. These standards will not have a direct impact on a lawyer who views her or his role as merely instrumental to a client's objective, and who is unwilling to draw a boundary line regarding acceptable tactics or honesty. On the other hand, lawyers who have a genuine desire to conform to their own internal moral code will generally have the ability to draw internal limits regarding their own acceptable behavior. Even if individuals differ in application of a subjective standard, honest persons recognize when their behavior is intended to demean another human being. Individuals can apply even a subjective principle based on their own moral recognition of a duty - in this case, a duty not to harm or injure others. Law Professor Joseph Allegritti has written: "One of the great temptations for lawyers is to see ourselves in the third person, as the mere instrument of our client. If we do so, of course, moral issues disappear because we compartmentalize our lives and relegate our moral and religious values to the private realm of family and friends. There is never any risk of having to say "no" to a client or the system because only a moral agent, an I, can stand for something - a lawyer in the third person has nothing to stand up for or against." The Lawyer's Calling, at 119.
Students of the law and young lawyers should be taught to model their professional behavior after these authoritative standards. Even though experienced mentors and exemplars are of enormous value, a clear statement of expectations provides a framework that could help shape behavior for generations to come. For lawyers who have already established habits of good behavior, there is still value in the standards. Even without express sanctions, they raise the bar of expectations and benefit all who participate in the system of justice. The very existence of standards provides an opportunity for individuals to make an internal decision to comply. The authoritative nature of these standards also allows external support for compliance and indirect consequences for noncompliance.
Experience suggests that most lawyers are well-intentioned and operate from a moral foundation that supersedes professional opportunism. Will some ignore the standards and refuse to conform? Of course. Will they be the subject of monetary sanctions or professional discipline solely because they refuse to conform? Probably not. However, gentle, firm reminders from the bench have already taken root in many Utah courtrooms and have already had an effect. When a judge begins a hearing or a trial by reminding counsel that the standards apply in that courtroom, it tends to change behavior. Over time, if the majority of lawyers and judges take the standards seriously, the incorrigibles will find that misbehavior erodes oneÕs reputation and the respect of oneÕs peers. In addition to educating the public about the content of the standards, the message can also be communicated that honorable behavior, restrained by limits outlined in the standards, is more effective advocacy than insulting, abusive behavior.
Eugene Scalia, father of Justice Antonin Scalia, taught his son that neither education nor intellect is the most important thing in life. ÒBrains are like muscles Ð you can hire them by the hour,Ó he would say. ÒThe only thing thatÕs not for sale is character.Ó The New Yorker, March 28, 2005, at 43. May lawyers everywhere recognize that civility reflects on oneÕs character, and resolve to improve the system of justice by responding, without coercion, to the highest that is in us. And may we also use our influence to encourage that behavior among others.