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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How lawyers can screw up using social media

Recently I was perusing a social media web site when I noticed a local attorney had joined. I saw the attorney’s name and position, and I frowned. Propriety requires that I be somewhat cryptic so as not to identify this attorney and cause him or her any embarrassment.

The offending part of the attorney’s information was the lack of proper capitalization and punctuation in the law office’s name. There was no capitalization whatsoever, and one of the words properly requires an apostrophe-S.

I know this attorney, and our local bar is fortunate to count the attorney among our members. Good work, solid ethics, all the characteristics you could want. And yet the attorney made a rookie mistake to end up looking less intelligent—or at least sloppy. The reflection on the employer is not positive, either.

Now I need to figure out how to tactfully raise this topic with the attorney. Any suggestions?

Lawyers, what does your email address say about you?

Note: This article has been repurposed from another blog of mine.

Lawyer communicate by email almost as much as they do by phone or letter. Not a day goes by that I don’t get at least a handful of emails from other attorneys. What amazes me is that some attorneys are still using email services like hotmail.com or AOL.

Fifteen years ago, a lawyer with an email address of any kind was on the cutting edge. A lawyer with a “.com” email address was a rare person. Only the largest law firms, it seemed, had the financial resources to have an address like smith@lawfirm.com. As web site hosting and domain name registration became easier, other firms and lawyers began to adopt the .com email addresses.

In 2011, setting up your own .com email service is criminally easy. It’s very inexpensive, too. I’ve seen services as low as $4 per month–if that’s going to break your law practice budget, you have serious problems.

So, why should lawyers dump their hotmail.com or yahoo.com email addresses? The answer is simple: your email address is a reflection of your law practice. It is also a reflection of your success–or lack thereof. When lawyers use an email system like gmail.com, it suggests several possibilities:

  • The lawyer cannot figure out how to set up a personalized .com email service. This makes potential clients wonder what else the lawyer may not be able to figure out. Can the lawyer even use basic word processing software?
  • The lawyer cannot afford to set up the more professional service. Why can’t the lawyer afford it? Is the lawyer not good enough to get clients who pay?
  • The lawyer doesn’t care about a professional appearance. Will the lawyer show up in court wearing an old wrinkled suit?
  • The lawyer can’t provide the service that a larger law firm can.

Whether we like it or not, appearances matter. When lawyers use a service like hotmail.com, they send the message that they are not professional. That is most likely not the case (indeed, I know some lawyers using these sorts of email services who are, in fact, excellent lawyers–and I don’t hesitate to refer people to them), but some potential clients will wonder.

If you are an attorney and you’re still using aol.com or any of the other email services as your email address, it’s past time to upgrade. You need to register a domain name and set up a personalized email service. Gmail.com addresses are fine for communicating with friends and family.  Clients, however, now expect their attorneys to be in the top tier. When you use hotmail.com for your email, you’re saying you’re not even close to the top tier. If you think I’m kidding, read what knowledgeable people think about email addresses.

Take a look at your email address like it’s your letterhead. Does your letterhead say “I’m a professional lawyer” or does it say “I also own a bowling alley“?

[Disclosure: some time ago I set up a gmail account as a “mirror” email account. I forwarded all emails to this address so they would be archived and searchable. Despite my best efforts, some lawyers picked up that address and use it as my email. I wish they wouldn’t for the reasons above, but I also know that address book management is low on everyone’s priority list. Just please don’t think I ignore my own advice.]