On declining civility in the practice of law

Our local Inn of Court met this week to consider the problems with a lack of professionalism among lawyers today. Four of our local judges, representing state and federal benches, served as the panel to lead the discussion. After an hour or so, one thing is clear.

Declining professionalism is a problem, and judges are as mystified about what to do as the rest of us.

There have always been lawyers who behave badly. Sneaky tactics, unfair accusations toward the other party, just generally being a pain in the posterior. But today judges sense a new element coming into that mix: the inability of the lawyer to distance himself from the client’s emotions. Whether it’s in the form of a raised voice during a hearing or bombastic language in a brief, it’s definitely happening.

Of course, one of the “problems” with discussing this topic in an Inn of Court meeting is that we are preaching to the choir. You don’t get invited to join an Inn if you’re, ahem, an orifice. If there was one useful thing that came out of our Inn’s discussion, it is that lawyers seem to be comfortable with the idea of judges calling bad behavior for what it is and being more assertive in dealing with it.

Possible cause

For what it’s worth, my opinion is that the problem of uncivil lawyers stems from a simple cause: some lawyers (and people in general) don’t care what others think of them. While walking out to the parking lot, I was chatting with one of our members who said to me that he lives in fear of having any judge hint that he has done something unprofessional. This lawyer highly values his reputation with the judiciary. I think I fall into the same category. I value my reputation for integrity and decency. Once in a while I’ve become a little heated during an oral argument, perhaps, but only once can I recall a judge saying to me that he felt I had crossed the line a bit. That gentle chiding (that the judge may not even recall since it was in a memorandum order and was addressed to all attorneys in the case) stuck with me.

While an admonishment (or worse) from the bench works to keep some lawyers in the right mindset, it doesn’t work with others. I can recall one incident where an attorney was out of line in questioning a witness. I objected, and the judge agreed: he said the opposing attorney was out of line in a written opinion. That did not deter this particular attorney from engaging in similar conduct in other cases. There’s another instance that one of the panelists shared. One attorney got himself sufficiently crosswise with one of our judges that the judge ended up sanctioning him. Rather than change his approach, this lawyer now takes advantage of our state’s automatic change-of-judge rule whenever a case gets assigned to the judge who sanctioned him.

Voices carry

It comes as no surprise to me (nor should it to any) that judges talk among themselves about who the difficult lawyers are. Would it make a difference to the attorney who was sanctioned if, at the time the sanction was imposed, the other judges in the county told the attorney (perhaps through a letter) that similar conduct in their courtrooms would result in similar (or increasing) sanctions? I don’t know, but a unified front in our local judiciary would take away this lawyer’s ability to avoid one particular judge. Of course, in our county the number of judges who would take on that task is around a dozen. In larger communities (think Indianapolis, Chicago, etc.) it wouldn’t work.

The fact that judges talk and share information was impressed on me as a young attorney when a couple of the local judges separately told me that I was building a good reputation among the judges. I’m no rocket scientist, but even I understood that I was more likely to be able to persuade a judge if I wasn’t constantly being a problem by being argumentative, disrespectful, or deceptive. I can recall being told by a court reporter that a particular judge liked me because I don’t lie to the court. There was nothing illuminating there, but it reinforced my belief that I was approaching things in the right way.

Civil discourse is needed (pun intended)

There are no easy answers to this problem, but I hope that this post will spark some comments here and maybe discussion about the issue on other legal blogs. We need to talk about this problem and work on solving it. We probably won’t be able to eliminate it completely, but perhaps we can gain some ground.

Please share your thoughts on this issue and encourage others to do the same. The online discussion might as well start here (or continue here anyway). Thanks!

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