On demand 1h 1m 57s Basic

Best Behavior: Ethical Strategies for Dealing with Bullying and Bias in the Profession

4.9 out of 5 Excellent(39 reviews)
Start your free 7-day trial
* Claim credit(s) for one free course during your 7-day trial.
View all credits22 approved jurisdictions
Play video
  • Credit information
  • Related courses

Best Behavior: Ethical Strategies for Dealing with Bullying and Bias in the Profession

Have you ever been the target of bullying or bias or observed others being bullied in the practice of law? According to a 2019 study by the International Bar Association, a significant number of legal professionals worldwide have been subjected to bullying at work or observed others being bullied, bias based on gender, race, age, LGBTQ+ status, disability and other characteristics impact who is most likely to be targeted. Despite employer policies on diversity, inclusion, anti-harassment and anti-bullying, the problem persists. This program will equip individual attorneys with ethical strategies to deal with bullies effectively and increase civility within the profession.

Transcript

- Hello everyone. This is Fran Griesing at Griesing Law. Thank you so much for joining me today for "Best Behavior: Ethical Strategies "for Dealing with Bullying and Bias in the Profession". In the 40 plus years that I've been practicing, the profession has changed profoundly and some people believe that we are less civil to one another and less professional than we used to be several decades ago. I don't know if that perception is correct, but there are lots of indicia that people are more aggressive towards one another but there is a lot unfortunately of bullying in the profession and many, many times that bullying is tied to different types of conscious and unconscious bias based on different characteristics or groups that people belong to. We really need to think about what we're going to do to tackle bullying and bias in the profession, because unfortunately it has really serious consequences for everyone involved. So the scope of what we're going to cover today is the breadth and depth of bullying in our profession. It doesn't just relate to lawyers who are adverse to one another or even just to lawyers. It relates to everyone participating in our profession and in addition, it occurs within law firms or legal departments, among colleagues, between seniors and subordinates. Unfortunately, it's fairly widespread according to statistics we're going to talk about today. So first of all, we're going to learn about how we can detect unconscious and implicit bias. Specifically when it is at the cause or root of bullying in the profession. I hope we're gonna come away with effective strategies about using the ethical rules of professional conduct, various civility codes in your jurisdiction, court rules and other types of judge rules to combat harassment, bullying, discrimination and bias as it exists in our profession. And ideally, I hope we'll be able to talk about how you create and promote a workplace where bullying is not tolerated and where everyone feels respected and included. In addition we want to talk about how you can reduce the risk for your legal employment organization. Whether it's a firm or a legal department, on how reducing the risk of claims for discrimination, harassment, retaliation and other types of misconduct. These are very serious issues that seem to be growing and causing a lot of distress for individuals who suffer at the hands of bullies and for organizations where bullying is unfortunately tolerated. So you may wonder, "Why do we care about this?" Is this something we really oughta be talking about? The reality is, it is something we should be talking about and here's why. When you have bullying in a legal setting where people are practicing law, it impacts the legal employer, the people who work there and other stakeholders such as clients, opposing counsel, the courts in which you appear and the like. We also want to make sure and think about the ethical rules that are implicated when bullying occurs, the codes of civility that many jurisdictions that have adopted and adapted to as a reaction to bullying and individual court rules and judge's rules about this sort of thing. Why should we care? Well one thing is that there are legal consequences when people engage in bullying. Particularly when it's based on bias. There are ethical considerations because various types of bullying and incivility in the profession also amount to violations of disciplinary codes that can lead to sanctions. Can lead to cases being lost, can lead to deals being lost. Can lead to people losing their jobs and also litigation arising out of claims of discrimination, harassment and retaliation. Also, if you have a situation or an environment where bullying occurs and appears to be tolerated, and isn't addressed, you're really likely to face both legal and ethical consequences that go beyond what I've just talked about. For one thing, it can affect whether people want to work in your organization. Whether you can recruit new people and also whether you can retain the people you have recruited. So there's a lot more employee turnover and poor or suffering morale if it's perceived to be a hostile work environment and the bullies may also suffer as eventually they can find that they're out of a job and that others don't want to engage them for new positions because of this. We also find that when you have a diverse and respectful, inclusive team, you're much more likely to have a better work product and clients are likely to be better served. Of course, it should also be obvious that it is the right thing to do and it's good for the profession when you don't have bullying and instability in the workplace. Turning to how that affects us further, let's look at the combination of different rules and different guidelines that we as lawyers face that can enable us to judge whether conduct is in fact inappropriate and bullying in nature and also how can we best use strategies within the rules to protect ourselves, our colleagues and our organizations. One thing that comes to mind is that we have the ABA Model Rules of Professional Conduct. Those rules act as the template for jurisdictions across the country and specific state rules on how lawyers are expected to behave. Failure to abide by the applicable rules of professional conduct can lead to different types of disciplinary action and sanctions. You may be reprimanded, suspended for some period of time. I can assure you, unfortunately, if the conduct is severe enough, some people can lose their license. So the rules of professional conduct are mandatory for lawyers and provide a lot of assistance for people who need to tackle bullying and bias in the profession. The Codes of Civility tend to be something different than the rules of official conduct. They're generally supplementary and they do not, on their own terms, usually create a basis for disciplinary action against lawyers. However, it's clear that certain types of conduct may well violate both a code of civility and a rule of professional conduct and we'll talk about some of those as we go through them. As well as that, if you were participating in a dispute, in litigation, arbitration or something like that where there is a forum in which you're appearing, the individual forum and the individual judicial officer leading your proceeding, may have their own rules, both on conduct and civility expectations. I've seen increasingly, a number of judges who have promulgated their expectations about how lawyers will treat one another and everyone else in the process and the consequences that will be imposed if we do not. The other thing is that during the recent pandemic, the closures that resulted from that and the increased pressures that everyone faced, a number of Bar associations and courts issued additional guidance and expectations about how they intended lawyers to behave. One thing that particularly became important is that the courts did not want lawyers to exploit the situation by asking for unnecessary extensions or creating additional stress for adversaries but they also didn't want people to neglect to meet deadlines by using COVID, the pandemic and closures as an excuse when there weren't valid reasons for doing so that were in your client's best interests. As I've said, the Rules of Professional Conduct are where we start and because the ABA Model Rules are the template upon which the others are based, I'm going to rely on those in our discussion today. In my view, you could probably find a basis on which virtually every rule could have some implication to bullying, bias, civility, professionalism and the like. But there are certain rules that to me, really jump out as being particularly important in dealing with bullying and bias in the profession and I've given you a list of them here. I'm not gonna list them right now. You have them available but I wanted to say that there is a particular rule that jumps out at me and that is rule 8.4G of the ABA Model Rules. I want to be clear that that subsection has not been adopted by every jurisdiction, many jurisdictions have outright refused to adopt it and others have modified the language. For me in particular, I practice principally in Pennsylvania and I'm licensed in two other jurisdictions. This subsection is top of mind. What rule 8.4G stands for is that it makes it a disciplinary matter, a professional violation if someone engages in discrimination or harassment in the practice of law. In Pennsylvania, the court has attempted, the State Supreme Courts has attempted to implement a version of 8.4G at least twice. That has been challenged in the federal courts and two federal courts have determined that the versions of 8.4G that Pennsylvania attempted to adopt were impermissible and have struck them down. So if this is a rule that is in place in your jurisdiction or if it isn't, I urge you to check it carefully to see what is the status in your particular jurisdiction where you are licensed and where you usually practice. Even in that rule by the way, is not in place, I think there's more than ample other rules that come into play that you should be thinking about as we deal with this and I will address them as we go forward. I want to talk about respect in the workplace next. The term respect in the workplace is not something that I've long been familiar with. I mean it seems obvious of course, but it seems to me that this particular framework has taken increased attention. Lately I've seen many, many more companies implementing respect in the workplace policies where they didn't have them before and frequently, those policies tend to deal with many things that were addressed such as prohibitions against harassment and discrimination and sometimes also they explicitly provide that you're not going to engage in bullying, that you're going to accommodate people who have special needs and the like. So it's become top of mind for many, many more employers including legal employers. And what these employers have realized is that if you have an environment in which there is bullying and bias and it's tolerated, it undermines respect in the workplace which in turn, makes people feel devalued, not appreciated for their contributions and when they're not respected, they're less likely to feel they can be their authentic selves when they are participating in various meetings at the workplace or just trying to do their job. This also causes people who are targeted to feel distracted. Even witnesses and observers feel at risk and feel distracted and they also are less, performing less, putting out less work and the quality declines as well. Frequently people who feel they're suffering from this sort of thing also start to take more time off and there is an increase in absenteeism that also becomes a problem. So you want to have a workplace where everyone feels respected so that they can do their best work, that you can attract and retain the best talent and most importantly, respect in the workplace goes in all directions. It's not just certain people have to abide by it and others don't. And this becomes particularly important in a legal environment because often unfortunately, people who are more likely than others to engage in bullying, tend to be people who have a lot of power and it's often a result of an imbalance in power. So frequently, it might be that someone's such a big rainmaker that they seem to be immune from the rules that everyone else has to follow. Think about it. If there's a lack of respect in the workplace and there are biases in that workplace that are inherent to other people, people who are in historically protected groups under the law or feel that they are historically marginalized are going to feel much less safe. However, it just doesn't limit itself to that. Issues regarding respect and bias in the workplace can be biased based on things that are not necessarily protected by applicable law. It could be based on the way someone dresses. It could be based on the size or shape of the body, cultural habits, accents. Perhaps a distinctive way of speaking based on where they grew up or on education. So these issues are not just based on the typical, what we think of as gender, race, age, disability, LGBTQ and the like. In addition to whatever the law provides, firm policies and handbooks make a lot of sense because they can make the principles here, even greater and broader than what we see under the law. One of the things that frequently occurs in the workplace that is implicated by a lack of respect and bias is people telling jokes that they think are appropriate when other people might not find them so. Or giving compliments about how someone looks or the fact that they've lost weight or something of the sort, that causes others to feel offended and disrespected. And unfortunately, these things do occur more often than not in the legal workplace. So when you're creating a policy for workplace respect, you want to take into account several key things that should be included. These are of course, the EEOC principles. Making sure that no one is discriminated against in hiring, promotion, opportunities, et cetera or in terminations. Based on some sort of bias. You want to accommodate people with disabilities, have very clear policies prohibiting discrimination, harassment and bullying. And by the way, harassment is not merely sexual harassment. It can take other forms. Very important is to ensure that the workplace policy is clear. That the employer, the firm, the legal department will not tolerate retaliation against others who complain. That there are very clear promulgation of company policies in training so people know what's expected of them. That any investigation is confidential and that appropriate action is taken and very, very important as I said in reference to rainmakers a few minutes ago, it has to apply to everyone. You can't exempt someone because they're a big producer or a very significant partner from these policies. Unfortunately if you do that, they're not really worth much and they're likely to lead to exposure. Both in terms of liability, loss of personnel, et cetera and potentially actually loss of clients and business. So where are we today on all this? Many different groups have experienced bias and obstacles to advancement in lots of professions and even at the top of our profession, even lawyers with sterling credentials find that they may be not given a fair shake or a chance to participate in rainmaking opportunities or to have a lead role in a key case because they happen to fall within a certain group that's historically been prevented from doing so and a lot of statistics show and we're going to cover those momentarily that women and diverse lawyers may not advance and generally do not advance at the same pace as people who are perceived to be in the majority. And this applies across many different types of groups and in addition to being denied equal opportunity to advance, there's more likely to be harassment and bullying for people in historically marginalized groups. One of the issues that also goes hand in hand with bullying and bias is the principle of incivility. As I said earlier, increasingly jurisdictions are promulgating codes of civility. And I've seen more and more courts and individual judges doing that as well. Simply put, I think we know it when we see it but incivility is not just one instance usually. It's generally being rude or discourteous and it occurs routinely for many, unfortunately in the legal profession. Some of the things that happen more and more often and I think when people have been under pressure during the pandemic, this may have been exacerbated. People communicated in a nasty way with a hostile email. Gave criticism that either is unwarranted or could be delivered more constructively. Gossiping about people. Making comments about people that are unfavorable and not based on something that's merit-based. Making faces at people. Accusing people that they're not doing a good job without a good basis. Publicly ridiculing people and shunning and excluding people but the last one that I want to mention which is something that I had observed unfortunately many times in various workplaces where I had worked is where people with a lot of authority lose their temper in a way that is intimidating. They throw things at other people in the room I'm sorry to say. Scream at them, smash the phone down and the like. We do not really want that to be happening, obviously in any workplace and certainly not in a legal workplace. So in addition, there's various other ways in which people engage in incivility, that constitutes bullying in the practice of law besides the things I just mentioned. In terms of losing one's temper or being rude, there are other things that are maybe more directed in some ways to the actual work. What I mean by that is ignoring communications from other counsel who need legitimately your response. Abusing the requests for extensions or refusing to give people extensions when they genuinely need it. Not extending the kinds of professional courtesies that are appropriate when it's not in any way going to harm your clients' interests. This is a really big problem. Particularly in litigation when we're dealing with discovery. People file mountains of discovery they don't really need. They interpose objections that are frivolous. They carry on at depositions, they try to coach their witnesses. They file papers with claims or defenses that don't have a good basis. There are things that come up routinely. It also comes up in negotiating in a settlement or negotiating any kind of agreement for that matter. Unfortunately, there are people who agree to certain terms in principle. May even agree to a term sheet and then try to renegotiate or back off what they'd agreed to. But one thing that pervades no matter what kind of work we do is we want to make sure that we're treating the people we work with, clients we're serving, the lawyers we're dealing with on the other side, the same regardless of whether they belong to a group that we belong to as well or a group that has historically been on the periphery of the profession. So let's think about what we mean when we say bullying because the purpose of this course is to address the ethical issues surrounding bullying and bias in the profession and workplace respect, incivility, all are part of that phenomenon and the things we need to think about. When we think about bullying, most people still think about the schoolyard. We think about children being mean to other children. Or we think about cliques that exclude people. But bullying occurs to people at all ages, in lots of situations. Particularly, unfortunately, in many workplace situations and in many legal workplace situations and it's usually a result of a perception that there's a difference in power and it's usually something that happens more than once. It can take the form of saying things to people, touching people inappropriately, or acting in a way that socially excludes them. When we think of bullying as a type of incivility and harassment, there are certain things that occur specifically in the legal profession that we encounter and need to tackle and need to know how to tackle ethically. Calling people names that are inappropriate, making comments about people belonging to certain groups. Threatening people that they're gonna be disciplined or have their job jeopardized or lose a promotion. Excluding people based on their participation or perceived membership in a group. That is not even something that is a choice. You are born a certain gender or race. Religion is maybe a choice but you're born into a certain group and now you're being excluded because all people in a group seem to be kept on the periphery. The other thing is you find that there's additional and intentional criticism of people based on a perception that people in a certain group are not favorable, not as capable. Also there's situations where we decide that certain people cannot work remotely while others can and if it's based on some form of bias, it may also be a form of bullying and of course in any way, yelling, losing your temper, throwing things at people, telling jokes at their expense that are not welcome are all additional forms that are bullying, incidental harassment that we see occurring in the workplace. One of the key reasons this occurs is that people, most if not all people have certain biases they may or may not be aware of. It can be explicit or implicit or unconscious and for those of you who are not aware of this, Harvard University has implicit bias tests available online that you can take for a variety of different types of biases. Some of which are based on legally protected categories and others that actually are not. So let's think about whether you might have a bias. I taught a course similar to this for non-lawyers not long ago in which I used an example that I'm going to use with you today and I said, "Think about whether or not, "would you cross the street when you see a person "who looks a certain way "who's wearing certain clothes, "has a lot of tattoos or piercings?" And I was surprised by how many responses I got from people that said, "Oh yes I would because they're dangerous." Well in my mind, just because someone is wearing a hoodie or a certain type of logo clothing or sneakers or has tattoos or piercing, does not in any way mean that that person is more or less dangerous or a threat than anyone else. But that is a type of bias that goes into play. Both in life in general and often in the workplace. Two other things that occur to me that are really common, unfortunately, examples of how this might play out in a legal workplace. Is whether or not you would assign a certain matter or case that potentially involves travel to a woman who's pregnant or a parent who has young children at home. Many, many places where I have worked and where clients of mine have worked, there have been instances where in fact, pregnancy and parenthood or responsibility for your own parent have impacted whether people are assigned to work on certain matters. It also impacts whether people are hired and as a result as I'm sure you all know, many jurisdictions have passed something called the C.R.O.W.N. Act which is to deal with the bias against women of color who wear their hair in a natural state. We need to think about all of these things as we are moving through our legal jobs and now we're gonna talk about some numbers. Some hardcore numbers that deal with bullying and bias in the profession. This study is something that I've been thinking about for three years since it came out. In May of 2019, the International Bar Association released the results of a study it conducted of nearly 7000 people in the legal profession, covering 135 countries and the study was done using six languages. I'm not going to go through in excruciating detail the information related to the summary slide on the Bar Association report. That slide gives you some of the highlights, in graphics that are really easy to follow including how you become more aware of these issues so that we can deal with them. Instead, I'm going to discuss some of the particulars that really jumped out at me. Lawyers should know better but unfortunately, it seems like based on the results of the IBA study, we don't know as much as we should about bullying and bias in the legal profession. The May 2019 report which summarizes and goes into some explanation as to how the survey was conducted came up with some really troubling conclusions. The survey was given to people who are not just lawyers but others who work in law-related positions and it covered all types of law jobs. Not just law firms or even in-house jobs but working in the courts and working in government. Some things that jumped out at me that I think everyone should be aware of that it's about one third of the men who responded and over half of the women that responded and about three quarters of the non-binary respondents reported that they had been bullied at work. Now the study does not specifically define bullying but instead allowed the individual respondents to select from a list of items that might constitute bullying or to add their own examples of what they felt was bullying that they had experienced directly as targets in the workplace in the legal workplace. Similarly, 40% of the female respondents, 32% of the male respondents, observed others being bullied in the workplace even if they themselves had not been targeted. That's very disappointing, I'm sure, to all of us. What is also really disappointing is that more than half of the women who reported being bullied at legal workplaces said they never reported it. They never reported it and even perhaps more disappointing is that of those who did report it, less than three percent felt that the workplace response was excellent. But over 72% nearly three quarters of those who reported it. Women who reported being bullied at work felt that the employer response was either negligible or insufficient. There's a lot of work to be done. When we think about reporting bullying in the legal profession, there are certain things that come away from that result and also from other studies and things we've experienced or observed ourselves. When bullying occurs in a legal workplace, it is not often reported. There's lots of reasons for that. In fact, generally about 11% of the respondents to the survey said that they always reported it and men were more likely to not report it. Also they found that the most junior members of the legal profession were less likely to report bullying that they experienced compared to those who were at the later stages in the profession. I would say that the most common reason why people don't report being bullied in the legal profession or observing it is concerns about retaliation. How is reporting it going to hurt them further? Particularly women said they are afraid that they are going to have adverse consequences and it's not uncommon that that is the case, despite the legal prohibition. There's another study that I think equally compels the conclusion that bullying is far too pervasive in our profession and that there is a link between bullying and bias in the profession. "Left Out and Left Behind: The Hurdles, Hassles, "and Heartaches of Achieving Long-Term Legal Careers "for Women of Color" is an ABA study and report released in June of 2020. At that point, although women of color were about 14% of all associates at firms, the percentage of women of color partners was only 3.5%. And the women lawyers of color who were surveyed for that study and report stated that they were likely to leave the legal profession, much more likely than their male colleagues because they were more likely to be subjected to both implicit and explicit bias. They felt that they were not given equal access to success, which includes opportunities for business development, being perceived as being fully committed to their jobs, being considered fully for promotion or for assignments on key projects. This is also a really unfortunate situation that we need to think about. So I wonder, is the situation with respect to bullying and bias getting worse over time? Many people think that the legal profession was considered more professional and more civil and business-like than it was you know, than it is now comparing earlier times. So I've noticed when going back looking at cases, that at least beginning in the 1970s, judges started to refer to certain types of litigation practices that showed a concern about bullying. Terms like scorched earth, Rambo-style lawyering, sharp practices started to appear in litigation decisions by the court and I think one of the reasons that we found that is that there has always been a tension between zealous advocacy and being overly zealous in a way that crosses a line and I don't think that people necessarily agree on what a clear line would be but one thing that occurs to me as to why a profession may be perceived as being less civil and have more bullying, is that the way media portrays lawyers has changed. My first image of a lawyer on TV was Perry Mason, who though he used his skills to win, he used his tactical skills, his intelligence, his investigation skills but he didn't do things, that as I recall, were perceived to be possibly underhanded or dishonest. But if you think about recent shows about lawyers on television. One of my favorites is "The Good Wife". You see that in "L.A. Law", "Good Wife" and "Better Call Saul", sometimes vigorous advocacy, zealous advocacy is portrayed in a less favorable than appropriate way and that I think leads to what people think lawyers are like and maybe what lawyers think they should be like. I also think that because we're working with technology now, we don't reflect as much when we communicate if by email or by text as we did when we had to take the time to actually write a letter, review it, think about it. That may also contribute to us being less civil in our communications. We also may feel that there's a lot more pressure on us to generate work. And to do our work. Particularly given recent events with more people working remotely and finally, because we are working remotely and also because clients are much less likely as they used to to pay for junior lawyers and to pay for junior lawyers to follow senior lawyers around, I think there is not as much training about how to handle things in a professional way. Though of course if you're following someone around who is also a bully, that may be better that you're not doing so. So let's think about again, the rules of conduct that apply to us and how they relate to bullying. As I said earlier, in my view, 8.4 is the most important rule and even if you don't have 8.4G, you still have 8.4 which says a lawyer shall not and lists various things and it seems to me that many examples of bullying and bias fall within the area of subsection C as some sort of occurs and some sort of misrepresentation or dishonesty and to me, any type of bullying and bias in the profession, in my opinion, can be considered prejudicial to the administration of justice. Unfortunately, if we don't rely on these rules to report people then, and there isn't action taken by the court or the disciplinary authorities, it will continue. In case you're not aware, we do have a duty to report certain types of misconduct. Rule 8.3 is not identical in every jurisdiction and sometimes the standard is somewhat adjusted as to what a lawyer's duty is to report another lawyer but generally speaking, it has to be something that is a substantial questions to the lawyer's honesty, trust or fitness as a lawyer and people can differ as to whether or not bullying or incivility is implicated by that. To me, it certainly relates to a lawyer's fitness as a lawyer but that doesn't mean that everyone would have the same view. Incivility and bullying also affect all types of relationships in the practice of law. Frequently, it implicates relationships with clients. Our colleagues, people we work with, how we deal with opposing counsel and the clients and also how we deal with parties in transactions when we're trying to negotiate and close a deal. I want to talk about clients for a minute. It may surprise some of you but it's not that uncommon for lawyers to be disrespectful to their clients by failing to be diligent and procrastinating and not handling matters swiftly. By not responding to clients quickly when they ask for something or telling them you're going to get back to them, even acknowledging that they've reached out to you by using harsh language, profane language, raising your voice. I have seen examples unfortunately, of lawyers threatening clients and insulting them. Including in writing which to me, is unbelievable. Thinking that you're making a record of mistreating your client but unfortunately that happens and also failing to represent people in a way that's appropriate or engaging in intimate relationships with clients. Another area that's very common for bullying in the legal profession is how we treat our colleagues who we work with. Whether it's in the legal department, a government office, courts or a firm. Attacking people personally, giving them feedback that isn't constructive, insulting them in front of other people, sending nasty emails or shunning people and excluding them from meetings. Making comments that are biased or inappropriate. Another area, as I mentioned earlier, where bullying occurs, unfortunately at great lengths is in litigation. I think I've already covered much of that. I won't repeat it again except to say we're gonna get into some of this in more detail shortly and in transaction practice, it's maybe not as obvious or perhaps not even as common as in a litigation combative situation and maybe not perceived to be as adversarial but there are various things that occur to interfere with a deal progressing, to finalize a deal, get the documents done or mislead as to changes to the documents that constitute bullying as well. As I mentioned, I happen to practice heavily in Pennsylvania so I have chose to use the Pennsylvania Code of Civility as an example. I'm not going to spend a lot of time going through this because this Code of Civility does not apply to everyone who's listening but I think it actually provides some great language for people to use if you are on the receiving end of incivility in handling a matter and the Pennsylvania Code applies to judges and lawyers which I think is very helpful. You may want to check if this is not applicable to you, whether your jurisdiction has something like this that you can use and if it doesn't, you still might find language in here that's useful if you're trying to counter someone who's behaving inappropriately and as I said, there's many ways in which this also applies to judges, at least in Pennsylvania. Flagging that for you, should you have concerns about particular situations you're in. All right, under the Pennsylvania Civility Code, there are some things that Pennsylvania recognizes that I think we all need to think about. And I think these are really good principles that apply regardless of the jurisdiction you're in or the type of practice you have. You want to make that you're sure that the way you're acting is always professional and courteous. Whether you're dealing with people in a courtroom, whether you're at your office. Whether you are going to a Bar Association event and you want to make sure that your communications, whether you're speaking or writing reflect respectfulness. You don't want to do anything particularly in a courtroom that's gonna get you in trouble with the judge but that makes somehow the sense for people who observing, makes people feel, your clients and others, that this isn't a dignified situation. You definitely don't want to disparage people personally or use inappropriate speech, because this reflects poorly on everyone. And can create great risk for you, for your clients and for your employer or firm, whoever that might be. You certainly do not want to exhibit or act in a way that is prejudicial or biased based on someone's belonging to a certain group. You certainly have a duty ethically, besides the civility code to be truthful and not misrepresent and you are not supposed to contact, generally, someone else's client or the court without communicating and copying opposing counsel and you're not supposed to say things, do things or act in a way that shows disrespect for others. Those principles apply whatever jurisdiction you're in. I'm also sharing with you resources from the Pennsylvania Bar Association that I think will help anyone. Regardless again, of your forum, to deal with bullies and inappropriate behavior. If your Bar Association or your court system or the Bar licensing authorities don't have this type of civility code or recommendations, these principles can still be cited as exemplars if you need to deal with it. Either with a court, motion papers or in letters to opposing counsel. I also love the New York standards because New York did something that I haven't seen other people do. Other jurisdictions do. New York explicitly added to its Codes of Civility provisions dealing with transactional practice and non-litigation practice and I think those standards are particularly helpful. When you're in a situation when you are in litigation, you may find that the bullying takes the form of frivolous claims or baseless motion practice. Think about this example in particular. Think about when you're in a case and opposing party just keeps filing things that really don't have merit and it's just increasing the delay and the cost to your client and you are finding that you have to constantly try to work it out. Here's an example that specifically happened in a case I had which I think illustrates the problem. We were involved in a case in which the other side was a big insurance company. Represented by a large firm with a lot of lawyers and a lot of resources and that party continually failed and refused to produce its discovery responses. They were woefully inadequate, resulting in lots of motion practice, seeking to get the discovery provided and produced. While motions to compel were pending, that insurance company counsel filed a motion for summary judgment in which many of the things that were stated as being undisputed facts were the subject to the very discovery that had been withheld. In that situation, what do you do? And what rules are implicated? There are many rules you can look to if you have this situation. First of all, rule 3.1 requires that lawyers will only make meritorious claims of contentions. Rule 3.2 requires lawyers to expedite litigation and rule 3.3 requires candor to the court and so when you have a situation like this, if someone is withholding discovery as a bullying tactic, causing your client to incur expenses and then trying to exploit it by filing a premature motion that you also have to respond to, in many courts, including the federal court, you can file a motion saying that you can't respond to the summary judgment because you still need additional discovery but you want to also make sure that by the time you get to that point, that you have made a detailed record with the other side about the deficiencies in their discovery. That you have abided by the good faith requirements to meet and confer as most courts require that you have filed your motions to compel on a timely basis and sought to enforce the orders flowing from those motions and that you take steps to seek to exclude any evidence or have claims dismissed. If parties persist in not only withholding discovery but in also failing to abide by discovery orders. I also urge you to seek costs and fees when you're in this situation and continue to do so. Those are things you can do to best prepare for a situation like this that we faced in our case. But the single thing that I found the most helpful in that situation and others is that when I see that I have an opponent who's going to engage in inappropriate tactics, foist upon us claims that don't have merit, delay litigation, withhold information, mislead the court, et cetera, I do a search of two things. I search the disciplinary history for the lawyer and I search for records of other cases in which that lawyer or that firm or that client may have been sanctioned for similar conduct. In more times than I care to remember, I have actually found very useful and helpful information that has shown that the lawyer or the client or the firm has engaged in similar tactics before and frequently have been able to get costs and fees by using that as an additional tool. So I urge you to do it. Similarly, discovery is a place in which lawyers engage in a lot of misconduct. We need to also remember that you're not supposed to be a bully, be uncivil, be rude or engage in other activities like that in connection with depositions, turning over documents and the like. How many times have you seen, if you are a litigator, a lawyer making speaking objections at a deposition? Trying to coach the witness by doing so. Or sending you discovery responses that are replete with objections that have no valid basis and just to rake up your costs and cause a delay. So one of the situations that I have seen happen occurs frequently in connection with deposition scheduling. Unfortunately I've often, more often than I'd like to think about, been on the receiving end or copied on emails from opposing counsel fighting about where deposition should occur, when they should occur and I've seen communications that have occurred by email in which there are insults foisted against opposing counsel that are both sexist, racist or otherwise inappropriate. Commenting on someone's sexual orientation and the like. This is clearly a violation of the ethical rules, a violation of I believe, every court's rules. Most judges' rules and a basis on which you should be seeking relief from the court. How do you do that? Well one rule that applies is the rule about expediting litigation. So if you are again, dealing with a bully in discovery or depositions, you need to have a written record. Your responses should not participate in the same kind of language or aggressive behavior. They should just be matter of fact. I don't believe that it's useful to go point by point and try to argue about every single thing. I prefer to just say that we reject what you're saying and we're not gonna engage in an unproductive back and forth letter writing campaign but if someone continues, I don't have any problem referring to, in my letters, referring to the ethical rules, the civility code, judges' rules, the court rules that the other side is violating and I don't have any problem attaching that to my motion if I need to file one. It's really important to make sure that whatever someone's going to file back at you, is not going to include you doing or saying anything that similarly crosses the line because at that point, the judges, and often even if you haven't done anything wrong, judges will just look at the lawyers and say, "I'm not gonna deal with it. "You fix it yourselves, you work it out." Or, "A pox on both of you." Other things you can do if you do have someone who's inappropriate at a deposition and has that pattern is to videotape depositions. Make sure you use the appropriate notice. Saying you're going to do so but then you could have a better record, not just the transcript. Because a transcript doesn't show you what people are doing physically, the tone of voice, et cetera. Some courthouses will let you reserve rooms within the courthouse for depositions. So that you feel you can get to the judge more readily if you need that. I've even seen courts appoint discovery masters when one party is so out of line, or both are out of line that the discovery can't get done without a babysitter. So another situation that I've had is that I was involved in a case where party noticed a deposition, changed the deposition date without telling every counsel, only some counsel and therefore counsel that did not receive notice did not attend. Because counsel wasn't aware of it. In that instance, the party sought a protective order from the court so that limiting the use of the deposition required the party that had failed to give notice to pay costs and to pay for all the expenses of reconvening the deposition and the inconvenience on counsel and the witness as well. So these are all strategies that you can have in your arsenal if you're dealing with a bully in the context of litigation. Incivility also occurs, perhaps less frequently, I'm not sure if that's accurate or not but some people think so, in transactional practice. Some of the types of incivility and bullying that occur in transactional practice, that the New York Civility Code specifically tries to deal with and I think it's really helpful is that sometimes counsel will know that someone's represented but still try to contact the party without going through counsel. I also want to point out that in some jurisdictions you cannot even tell your client to contact the other side's client without going through counsel. Another type of bullying that occurs is when counsel makes artificial emergencies, escalates deadlines so that they try to pressure a party to agree to a deal term. Similarly, some lawyers will say they have authority to certain terms and you will negotiate based on that. And later learn that the party on the other side is backing off. Claiming that the counsel didn't have authority. In addition, one that I've had happen many times in settlement agreements, particularly, and I find very offensive is that you agree to terms and then the other side sends you a draft that excludes important terms that you want or adds terms that you didn't agree to or you send someone a draft and they change it. So another thing that you can do, if you are finding that you're dealing with a bully on the other side in a transaction is refer to rule 3.4 which is dealing with fairness to opposing party and counsel and makes clear that a lawyer is not supposed to disobey an obligation under the rules, to make frivolous requests or to otherwise make it harder for an opposing party to conduct business and get the legal matter done and rule 4.2, again, is communicating with someone who's represented by counsel and if you want more specific tactics, on dealing with this, I again refer you to the excellent example that I know New York has. There may be other jurisdictions as well. It just happens that I have encountered that particularly. So thinking about bullying in the profession, another thing that occurs frequently that I am surprised how often people use and I do not condone at all is lawyers will threaten other lawyers in person, at depositions, in emails and in letters that the lawyer's going to seek disciplinary action and sanctions against the other lawyer and report them for disciplinary action because of something they've done that is not even remotely actionable or appropriate for discipline. And will abuse the threat of discipline in order to try to extort concessions. I have a case that we're working on in which there's a lawyer who had sent us multiple threats of sanctions to our team and condemning us for bringing our case, for asserting the claims we asserted, saying we don't have any basis, how they're gonna go after all of us, for a client and us for fees and costs and in fact I've had it happen in more than one case and file motions to dismiss that don't have merit and the like. And what actually has happened in the cases where I have been on the receiving end of these letters is that the other side has not won their motion to dismiss and in fact the very thing that they criticized us for or said we shouldn't have done or didn't have a good basis for are things that the court said we were 100% right on and ruled in our favor entirely. I have found that lawyers who tend to do this frequently are more often than not lawyers who are the ones themselves who are abusing the litigation process, asserting frivolous claims and defenses. I don't approve of weaponizing the rules of professional conduct or codes of civility or court rules. I, in my view, they're appropriate to be used to counter bullies but in a matter of fact way. Instead of, for me, instead of saying that I'm going to report someone when I may not even believe for example that their conduct rises to a duty to report it, I'm much more likely to say that I am concerned that such and such an action violates a particular rule or principle of the Code of Civility and that I expect it to stop. The other thing I do in these letters is again, if I am aware that the party on the other side, the lawyer on the other side has a reputation and has in the past, engaged in the same kind of inappropriate conduct that I'm experiencing, I will absolutely call it to their attention before I file a motion with the court and I don't threaten them that I'm going to tell the court. I just say I am aware that this is a pattern and it needs to stop. So not everybody might want to use it that way but it's something that I believe is helpful. You may be thinking, "Well, my client wants me to be really aggressive. "They want me to be super zealous "and they want me to be a hired gun, "I don't know why it's bad for me to do it. "Nothing has happened to me so far." Well the reality is that frequently, when a lawyer engages in bad faith tactics and bullying, it ends up hurting your client's reputation. For example, if a lawyer comes across as a bully in the courtroom, it may cause a jury or the judge to perceive that the client is also a bully or that the client is more likely to be someone who would engage in the negative conduct accused of or that's at issue because why would they have this kind of lawyer if this wasn't the way they acted as well. That may or may not seem fair but it is something that happens. Also, bullying in a case always causes the cost to go up and sometimes when that happens, clients don't like to have the higher bills either. Including the client that wants an aggressive lawyer. There also is concern that if you are representing a well-known client, like a big company, that the client's reputation in the business world or amongst stakeholders can be impacted by lawyer behavior. It has happened where a transactional lawyer has been so objectionable and offensive, the lawyer has caused the deal to blow up and that the parties to the deal on the other side decide they don't want to do business with this particular company or the company's lawyer. I participated in a matter in which a client was considering selling their business to another company and because the lawyer on the other side repeatedly engaged in bullying by, among other things, backing out on principles and terms that had been agreed to, constantly trying to renegotiate the deal, raising their voice, making negative comments about our client, their clients walked out of the deal. They said, "We're not going forward. "We don't want to do business with a company "that acts this way "or that uses a lawyer that acts this way." So it can happen. Also with bullying is bad enough, the lawyer and the client may find that there are consequences. That there may be consequences for the lawyer in terms of ethics complaints. There could be ultimately later malpractice claims because the bullying could have impacted the result and certainly it affects the reputation of the organization with which the lawyer is affiliated. Whether it's a law firm, a legal department, a company or the like and when that happens, it's harder to retain people, recruit people, et cetera. So lawyer bullying in the workplace occurs in the form of discrimination. It affects how we deal with our clients. It affects who gets credit for work at a firm. It occurs when lawyers make comments on the appearance of other people in their organization. It also occurs when people are excluded from meetings or when they get negative feedback on the work that's inconsistent with other people would do or it's not handled in a professional, respectful way. Or when staff is yelled at or belittled as well. One thing that jumps out at me from this that others may have experienced is that I have observed and I have also heard from clients who work at other organizations where there'll be a group of people who routinely go to lunch together or routinely go out for a drink after work, often led by a senior person at the organization. Frequently, it's a partner who has a lot of work, a lot of clients and that partner will go to lunch with a select group of people. Or go out for cocktails with a select group of people. Not including others in the department. One instance of which I'm particularly familiar is that there was a senior litigation partner, who almost every day, went to lunch with a group of more junior litigation partners and litigation associates and as the group went to lunch, they would gather at the elevator on the litigation floor and in the elevator with several other people from that floor who were not invited to the lunch, go down in the elevator, walk down the street and all go into a restaurant but not invite or include certain other people who are also in the litigation department. What was really notable about that is everyone who went to lunch was a man and everyone who was excluded was a woman. These are examples of bullying and bias that occur. So to avoid this, you want to make sure that you have a good policy, that it's updated regularly. That you train your team on it and that you enforce it and that you do so without retaliation. In addition, you want to make sure, if you're considering hiring new people to join your firm, even if someone is a really big rainmaker, you may ask that person for a mandatory disclosure about whether or not the person has ever been disciplined or the subject of any malpractice claims. But do you ask them whether or not they've ever been the subject of any discrimination claims or any harassment claims? To me, that's something that you want to ask people before you hire them. Again, as I said, rule 8.4G has not been successful everywhere but for jurisdictions that have it, it generally urges that lawyers should not engage in discrimination or harassment based on various protected groups and that's professional misconduct to do so. I think that is still misconduct because I think it impacts the administration of justice. But unfortunately, not every jurisdiction has upheld this type of rule. So going forward, what do you want to do? You want to have policies on civility, have a no tolerance policy on bullying and harassment, et cetera. You want to make sure that people feel safe to report problems without consequences, retaliation. You want to make sure that people feel they have a responsibility to report misconduct. If you experience misconduct from other lawyers and other organizations, you want to memorialize it in writing in a way that is courteous and concise and not also offensive. You need to make sure that you make a record and that you timely move to compel if someone is holding up your case. Not giving you discovery or otherwise making it hard for you to effectively represent your client. If inappropriate conduct occurs at a deposition, if it's not being videotaped, you can put on the record by describing again, in matter of fact terms, that someone is banging the table or standing over the witness or throwing something and if that doesn't work, you should consider videotaping depositions or taking them in the courthouse so that you have easy access to the court and where judges permit it, you should also consider calling the judge even during the course of a deposition. Make sure that you don't respond with personal attacks or misrepresentations or foul language when that's being done to you and where appropriate, I urge you to seek sanctions from the court to protect your interests and your clients. There isn't any question that unfortunately, there are too many people in our profession who do engage in bullying. Who violate the ethical rules and civility rules and misuse their powerful positions to justify somehow how they're acting or to describe it as being a zealous advocate for clients. That is not correct. Engaging unethically and engaging in bullying is not appropriate or real zealous advocacy. The best way to deal with lawyers who do this is to report what they do and to seek consequences against them and to make the appropriate record in a courteous and professional way. If we as lawyers don't try to do this and don't try to maintain a profession that respects diversity and inclusion, we're going to find that people don't feel they belong, they're not going to be able to do their best work and that's not good for anyone. The profession, the clients, the court or the system of justice. Thank you all so much for joining me today. You are of course always welcome to contact me, email is best. If you have followup questions or comments about my program. I will try to respond to you as quickly as I can. Thank you so much for listening and have a good day.

Presenter(s)

FGJ
Francine Griesing, JD
Founder & Managing Member
Griesing Law, LLC

Credit information

Jurisdiction
Credits
Available until
Status
Alabama
  • 1.0 ethics
Unavailable
Alaska
  • 1.0 ethics
September 21, 2024 at 11:59PM HST Available
Arizona
  • 1.0 professional responsibility
September 21, 2024 at 11:59PM HST Available
Arkansas
  • 1.0 ethics
September 21, 2024 at 11:59PM HST Approved
California
  • 1.0 elimination of bias
September 21, 2024 at 11:59PM HST Approved
Colorado
  • 1.0 general
Unavailable
Connecticut
  • 1.0 ethics
September 21, 2024 at 11:59PM HST Available
Delaware
  • 1.0 ethics
Unavailable
Florida
  • 1.0 ethics
Pending
Georgia
  • 1.0 ethics
Unavailable
Guam
  • 1.0 ethics
September 21, 2024 at 11:59PM HST Available
Hawaii
  • 1.0 ethics
December 31, 2024 at 11:59PM HST Approved
Idaho
    Not Offered
    Illinois
    • 1.0 professional responsibility
    September 25, 2024 at 11:59PM HST Approved
    Indiana
    • 1.0 ethics
    Unavailable
    Iowa
      Not Offered
      Kansas
      • 1.0 ethics
      Unavailable
      Kentucky
      • 1.0 general
      Pending
      Louisiana
      • 1.0 professionalism
      Pending
      Maine
      • 1.0 general
      December 31, 2026 at 11:59PM HST Pending
      Minnesota
        Not Offered
        Mississippi
        • 1.0 ethics
        Pending
        Missouri
        • 1.0 general
        September 21, 2024 at 11:59PM HST Available
        Montana
          Not Offered
          Nebraska
          • 1.0 ethics
          September 21, 2024 at 11:59PM HST Approved
          Nevada
          • 1.0 ethics
          December 31, 2025 at 11:59PM HST Approved
          New Hampshire
          • 1.0 ethics
          September 21, 2024 at 11:59PM HST Available
          New Jersey
          • 1.2 ethics
          January 16, 2025 at 11:59PM HST Approved
          New Mexico
          • 1.0 general
          September 21, 2027 at 11:59PM HST Approved
          New York
          • 1.0 diversity, inclusion, and elimination of bias
          September 21, 2024 at 11:59PM HST Available
          North Carolina
          • 1.0 ethics
          February 28, 2025 at 11:59PM HST Approved
          North Dakota
          • 1.0 ethics
          September 21, 2024 at 11:59PM HST Available
          Ohio
          • 1.0 professional conduct
          Unavailable
          Oklahoma
          • 1.0 ethics
          Pending
          Oregon
          • 1.0 access to justice
          September 21, 2025 at 11:59PM HST Approved
          Pennsylvania
          • 1.0 ethics
          Pending
          Puerto Rico
          • 1.0 ethics
          Unavailable
          Rhode Island
            Not Offered
            South Carolina
              Not Offered
              Tennessee
              • 1.0 ethics
              Pending
              Texas
              • 1.0 ethics
              Pending
              Utah
                Not Offered
                Vermont
                • 1.0 diversity and inclusion
                September 21, 2024 at 11:59PM HST Approved
                Virginia
                  Not Offered
                  Virgin Islands
                  • 1.0 ethics
                  September 21, 2024 at 11:59PM HST Available
                  Washington
                  • 1.0 ethics
                  September 21, 2027 at 11:59PM HST Approved
                  West Virginia
                    Not Offered
                    Wisconsin
                      Not Offered
                      Wyoming
                        Not Offered
                        Credits
                        • 1.0 ethics
                        Available until
                        Status
                        Unavailable
                        Credits
                        • 1.0 ethics
                        Available until

                        September 21, 2024 at 11:59PM HST

                        Status
                        Available
                        Credits
                        • 1.0 professional responsibility
                        Available until

                        September 21, 2024 at 11:59PM HST

                        Status
                        Available
                        Credits
                        • 1.0 ethics
                        Available until

                        September 21, 2024 at 11:59PM HST

                        Status
                        Approved
                        Credits
                        • 1.0 elimination of bias
                        Available until

                        September 21, 2024 at 11:59PM HST

                        Status
                        Approved
                        Credits
                        • 1.0 general
                        Available until
                        Status
                        Unavailable
                        Credits
                        • 1.0 ethics
                        Available until

                        September 21, 2024 at 11:59PM HST

                        Status
                        Available
                        Credits
                        • 1.0 ethics
                        Available until
                        Status
                        Unavailable
                        Credits
                        • 1.0 ethics
                        Available until
                        Status
                        Pending
                        Credits
                        • 1.0 ethics
                        Available until
                        Status
                        Unavailable
                        Credits
                        • 1.0 ethics
                        Available until

                        September 21, 2024 at 11:59PM HST

                        Status
                        Available
                        Credits
                        • 1.0 ethics
                        Available until

                        December 31, 2024 at 11:59PM HST

                        Status
                        Approved
                        Credits
                          Available until
                          Status
                          Not Offered
                          Credits
                          • 1.0 professional responsibility
                          Available until

                          September 25, 2024 at 11:59PM HST

                          Status
                          Approved
                          Credits
                          • 1.0 ethics
                          Available until
                          Status
                          Unavailable
                          Credits
                            Available until
                            Status
                            Not Offered
                            Credits
                            • 1.0 ethics
                            Available until
                            Status
                            Unavailable
                            Credits
                            • 1.0 general
                            Available until
                            Status
                            Pending
                            Credits
                            • 1.0 professionalism
                            Available until
                            Status
                            Pending
                            Credits
                            • 1.0 general
                            Available until

                            December 31, 2026 at 11:59PM HST

                            Status
                            Pending
                            Credits
                              Available until
                              Status
                              Not Offered
                              Credits
                              • 1.0 ethics
                              Available until
                              Status
                              Pending
                              Credits
                              • 1.0 general
                              Available until

                              September 21, 2024 at 11:59PM HST

                              Status
                              Available
                              Credits
                                Available until
                                Status
                                Not Offered
                                Credits
                                • 1.0 ethics
                                Available until

                                September 21, 2024 at 11:59PM HST

                                Status
                                Approved
                                Credits
                                • 1.0 ethics
                                Available until

                                December 31, 2025 at 11:59PM HST

                                Status
                                Approved
                                Credits
                                • 1.0 ethics
                                Available until

                                September 21, 2024 at 11:59PM HST

                                Status
                                Available
                                Credits
                                • 1.2 ethics
                                Available until

                                January 16, 2025 at 11:59PM HST

                                Status
                                Approved
                                Credits
                                • 1.0 general
                                Available until

                                September 21, 2027 at 11:59PM HST

                                Status
                                Approved
                                Credits
                                • 1.0 diversity, inclusion, and elimination of bias
                                Available until

                                September 21, 2024 at 11:59PM HST

                                Status
                                Available
                                Credits
                                • 1.0 ethics
                                Available until

                                February 28, 2025 at 11:59PM HST

                                Status
                                Approved
                                Credits
                                • 1.0 ethics
                                Available until

                                September 21, 2024 at 11:59PM HST

                                Status
                                Available
                                Credits
                                • 1.0 professional conduct
                                Available until
                                Status
                                Unavailable
                                Credits
                                • 1.0 ethics
                                Available until
                                Status
                                Pending
                                Credits
                                • 1.0 access to justice
                                Available until

                                September 21, 2025 at 11:59PM HST

                                Status
                                Approved
                                Credits
                                • 1.0 ethics
                                Available until
                                Status
                                Pending
                                Credits
                                • 1.0 ethics
                                Available until
                                Status
                                Unavailable
                                Credits
                                  Available until
                                  Status
                                  Not Offered
                                  Credits
                                    Available until
                                    Status
                                    Not Offered
                                    Credits
                                    • 1.0 ethics
                                    Available until
                                    Status
                                    Pending
                                    Credits
                                    • 1.0 ethics
                                    Available until
                                    Status
                                    Pending
                                    Credits
                                      Available until
                                      Status
                                      Not Offered
                                      Credits
                                      • 1.0 diversity and inclusion
                                      Available until

                                      September 21, 2024 at 11:59PM HST

                                      Status
                                      Approved
                                      Credits
                                        Available until
                                        Status
                                        Not Offered
                                        Credits
                                        • 1.0 ethics
                                        Available until

                                        September 21, 2024 at 11:59PM HST

                                        Status
                                        Available
                                        Credits
                                        • 1.0 ethics
                                        Available until

                                        September 21, 2027 at 11:59PM HST

                                        Status
                                        Approved
                                        Credits
                                          Available until
                                          Status
                                          Not Offered
                                          Credits
                                            Available until
                                            Status
                                            Not Offered
                                            Credits
                                              Available until
                                              Status
                                              Not Offered

                                              Become a Quimbee CLE presenter

                                              Quimbee partners with top attorneys nationwide. We offer course stipends, an in-house production team, and an unparalleled presenter experience. Apply to teach and show us what you've got.

                                              Become a Quimbee CLE presenter image