On demand 1h 1m 46s Intermediate

Civility in Practice

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Civility in Practice

Want to learn about civility and attorney professionalism? Then, this course is right for you! This course will discuss and define attorney civility and discuss discrimination/bias in the context of the Rules of Professional Conduct. We will focus on Rules of Professional Conduct 8.4(d) and 8.4(g), citing real-life case examples of how attorneys have been disciplined for their conduct. Additionally, this course will discuss potential discrimination/bias that can occur in just running a law firm and how to avoid those pitfalls.

Transcript

Welcome, everyone, to today's CLE Civility in Practice. My name is Cari Sheehan and I will be your presenter here today. Just a little bit about myself. I'm an assistant clinical professor of business law and ethics at Indiana University, the Kelley School of Business in Indianapolis, Indiana. I'm also a conflicts attorney with Scopelitis Garvin Light Hanson and Feary in Indianapolis, Indiana. In that role, I deal with internal ethics, compliance and conflicts on a daily basis, and that also includes civility, which we are here to talk about today. In addition to that, I am a frequent seminar lecturer and speaker on numerous continuing legal education courses, and I do write for the Hamilton County Business Journal here in Indiana, which is a local journal for anything business ethics or anything related to that area. So you can say what I do is ethics every day, all day, no matter what the circumstance, whether it be in the business realm, in the legal realm, I am doing something in that area. But let's get started here today on civility and civility in the practice of law. Now, with the practice of law, you may think, okay, everyone's civil. We're a breed of our own. We have a certain attitude or a certain demeanor we have to give forth. But we have to be one of a professional type of basis and we have to look at different things that could affect our professionalism and our civility as well. And one of those things that could creep in and affect professionalism and civility is unconscious bias, which we'll talk about here today, as well as just being rude or being saying things in an insolent manner. I don't know how many of you your parents, when you were growing up, ever told you it's not what you said, it's how you say it. And that's a lot of times with civility and professionalism in the legal world, sometimes it's not what we say as lawyers. It's the tone we're giving across or the context or how our demeanor when we say it, if we're in person. And a lot of times, too, civility needs to be both online and in person. A lot of times you can put something in an email and you think it's completely fine that no one's going to take it the wrong way. But we have to remember here that it's the reader and the reader's perception, just like it's the receiver. When you're talking to someone in person, it's their perception that really counts when it comes to are you being professional and are you being civil? And a lot of times what we think is a joke is not going to be a joke. And a lot of those they do tend to come from an unconscious bias and things that we really don't realize in ourselves that are affecting how we come across to others. An unconscious bias is not a bad thing. I know it seems like a dirty word or has a very negative social connotation, especially in society, but it's not because we'll see here today that we all hold unconscious bias and we've got to know that to know how to be civil and how to move forward and how to relate to all different types of people in the practice, because that's what we do. It's not just one type. It's not just one race, just one ethnicity. It's everyone. And so we have to really think about how we conduct ourselves, how we act and what we say and do on a normal basis. Now, professionalism and civility is more than just unconscious bias or how we say stuff, but there are some things that's not to a lot of people think just if you're mean, you're uncivil, that's not really the case. You can be have a disagreement, but it's the way you handle yourself. And if you handle it in a professional manner. So civility and professionalism is not the absence of criticism or not wanting to come to an agreement. It's not even liking a person. You're not going to like everyone you meet in this profession or all of your clients, for that matter. And it's not just about having good manners. It's knowing how to behave in a civilized society and uphold a code of decency or a code of conduct. There's just certain things we don't do as human beings and certain things we don't say and certain things we just don't act like when it comes to the legal world and the profession. And so we really have to hone in on those and really think about those things when we are practicing law. Now, one of the other things to think about, too, with this is this is not just a standard for yourself, but everyone in your law firm, even your non attorneys who you work with. It is something to teach them and train them of how to act civil and how to be professional in their demeanor. Because if you think about it, the first person that talks to your clients is not always going to be you, the attorney, or the first person that even talks to opposing counsel. It could be your legal administrative assistant, your paralegal or someone like that. So we have to be very careful to train everyone to that we come in contact with. That helps us in our profession. So let's look at some civility initiatives, though, because civility is a really big thing, not only just for you personally, but bar associations, including the ABA and local jurisdictions have really tried to set standards for lawyers, and they've gone as far as putting it in their oath of attorneys. If you're in Indiana, where I'm from, and you actually read the oath that we took when we became lawyers, when we raised our right hand to uphold the laws, to zealously defend our client, to uphold the Constitution. And the very middle of that oath, there's a phrase that says that we will abstain from offensive personality. That phrase is very controversial when you point it out to people. But abstaining from offensive personality is kind of my jurisdiction. Indiana's jurisdictions way of putting a little civility in our oath. And the catch to that is if you read the preamble and you know the oath itself and you know everything around it, when we uphold or say we're going to uphold those laws, it's not just when we're in our 9 to 5 office or 8 to 6. Or whatever hours you work. We have to uphold that oath 24 hours a day, seven days a week, which means we need to be civil. 24 hours a day, seven days a week, and our personal and professional capacity. So it's not just in a professional capacity where we're going to have civility. Other jurisdictions to have really tried to bring this and incorporate it in as well. We are you see it in all of our ethical rules, a self governing profession. We have a fitness and character examinations. We have certain requirements we have to meet. I've already told you about the oath, the different pledges. And so it is just something that in general jurisdictions are taking notice of and have been there for a while. And it was actually in 2002 the Sedona conference happened, which is actually a think tank conference of judges, the judiciary from all different jurisdictions. And they try to focus on challenges of the legal system at the Sedona conference. And one of those challenges they found is civility between the counsel that is litigating in front of them. So between opposing counsels, particularly in the area of discovery. Now, how many of you enjoy discovery? Probably not very many. It can be very contentious. Yes, it can be very just aggressive in nature. And so judges pick up on this because that's where the most fights come out. That's where the most motions come from. That's where the most incivility occurs. You know, withholding documents, not giving over, accused of lying, all the different things that can come from discovery. And so judges kind of made an initiative that requires some, in some instances, attorneys to take oaths and in some jurisdictions, especially in the federal jurisdiction, that before you resort to the judiciary to resolve your dispute over discovery, you need to first have a face to face consultation with opposing counsel to resolve it yourself and face to face does not mean email. It does not mean, you know, lack of simultaneous, simultaneous communication. It has to be something simultaneous. It could mean a phone conversation because, you know, you say something, you get an immediate response face to face or a zoom call would be appropriate. But it does not mean you send an email, they email you back, you leave a voicemail, they leave them back. That's not a face to face simultaneous, which was envisioned from this because judges really wanted this. Because if you think about it, when you talk to someone, are you more likely to be more agreeable in some circumstances? You can read people's tone. You can probably come to a resolution a lot faster than you can sending letters or emails or just having that back and forth. So that is why the judiciary put that in there that they encourage and some even require face to face communications to help curb some incivility, some other initiatives. Illinois has a great one, too. Just another example I wanted to pull out for you. In 2005, the Illinois Supreme Court established the Commission on Professionalism under Supreme Court Rule 799C known as to civility in this rule, they really do promote a very open culture of civility and inclusion, and they promote and foster it. They also start to teach civility within the law schools before the new baby lawyers even graduate and get licensed to make sure that they understand civility is really important. And other jurisdictions have kind of followed suit from this one as well. And you can actually find different ones. I've posted a website here. The American Bar Association has different initiatives and based on jurisdiction and civility codes that are out there, which is really something to take a look at and consider. Can incivility lead to professional discipline? I hope all your answers to this question. Yes, unanimously. I hope there is no one out there that thinks that they can be rude. They can do, you know, uncivil things or act in an uncivil manner and not have any consequences. Now, does it mean that you're always going to have consequences? No. Someone's going to have to turn you into the disciplinary commission. But if you act a certain way, you will get a reputation and there will be a judge or a lawyer that will eventually turn you in. Remember, we are a self regulating self disciplinary type of organization. 8.3 We have to report our colleagues that we know violate the rules of professional conduct. It's a very high standard that no one standard but being uncivil and having incivility can violate the rules of professional conduct. Particularly rule 8.4 D, which says it is professional misconduct for a lawyer to engage in conduct that is prejudicial to the administration of justice. This is huge. Prejudicial to the administration of justice is so, so broad. It is way broader than you could ever anticipate anything being. And it's done that way on purpose because they want to be able to get you in circumstances where otherwise there may not be a rule in which they can, you know, come out and discipline you on. But prejudicial to the administration of justice is the number one rule where we see uncivil lawyers and incivility being disciplined on a regular basis. There are also other rules that can come into play. One in particular is 8.4 G. This rule says that a lawyer shall not engage in conduct that the lawyer knows to be harassment or discrimination on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status. This is related to the practice of law. This is the only rule where you have to be engaged in the practice of law for it to apply any other rule. It can be personal or professional capacity. So this rule is the one where when I was talking about a little earlier, that unconscious bias, this is the rule where they're going to get you for unconscious bias right here and they're going to get you if you discriminate in any of these areas. And it's not just with your opposing counsel or your client, but it's with two. Anyone you engage with. So like your legal administrative assistant. Anyone like that or anyone you hire in the practice of law. This is really where they come in and discipline you for it so you can be disciplined for incivility. Now, this rule was is not in every jurisdiction. So I do highly encourage you to check your local jurisdiction to see if you have rule 8.4 G. If you do, it could be broader than this. It could be less than this, but it is kind of the title seven is what I call it of the rules of professional conduct. So as you can see, Title seven is a little less Civil Rights Act of 1964, including race, color, religion, sex, national origin, and then 8.4 G. It has those same hallmarks, but it also expands it to a wider array or a wider grouping. Of different classes that we cannot discriminate on or hold unconscious bias against in our practice of law and the practice of law. And what that means is very broad. And so are the words discriminate and harassment. And so just for some educational purposes, discrimination can be anything verbal or physical. While harassment can be anything from pressuring, intimidating, derogatory, slander and different things, you may think, who would engage in this? Who in their right mind or who would even think of doing these things? And the thing is, when it comes to discrimination, sometimes it's very unconscious, meaning that you don't realize you're doing it because you're like, Well, that's how I was taught. That's how I learned. That's what, you know, I knew it as. And that is not how it should be. It needs to be. You have to think about your own biases. And actually realize you have them first and not follow what someone taught you sometimes and really step outside of that. Because we don't know, especially in today's day and age, what has changed and different things. And we will go through some examples so you can kind of test where your biases come from. And if you're at risk for, you know, drawing incivility or unprofessionalism under rule 8.4 G. Like I said, it applies to the practice of law, which is defined as anything engaging in law. Could be representing clients, interacting with witnesses, co-workers, court personnel, other lawyers, managing your law practice, attending social events for the Bar Association. It can be anything. And so we've always got to remember that. Now, not like I said a little earlier, not all jurisdictions have rule 8.4g, but the ones that do really do try to enforce it. But it wasn't. The ABA does have it in their rules and it was John Gleason, then chair of the ABA Center of Professional Responsibility, that said that they thought 8.4g was dead in the water, that no jurisdiction was going to accept it, no one was going to follow it, that it was not going to have any weight or do anything. And so there was a lack of optimism. But I will say Indiana has had on its books, even before the ABA adopted it into the model rules. I think we've had it on since about 2000, maybe nine, ten, 11, somewhere in there. And the ABA didn't adopt it until 2018. And it's got some teeth and there's been discipline under it here in Indiana and other jurisdictions. But some states like Texas and some of your other ones really did not want to adopt it in 2018 when the ABA did. And some of them still have not. So really look for 8.4 G if it's in your jurisdiction. If not, they always have that fallback 8.4 D the prejudicial to administration of justice, which is the kitchen sink catch all rule that we really have to look for. But like I said, I did want to because, you know, we all sit here and say, you don't have bias. I don't have unconscious bias. I don't know what you're talking about. And we do if you have a brain, you have a bias. And I hope to maybe prove that theory to you here today. And this is not something to make you feel uncomfortable as you're listening to this seminar or to make you feel like you're a bad person. Just know if you have a brain, you have a bias. And that has been taught in universities all across the country to college students, to business students everywhere. They teach this because it is true. If you have a brain, you have a bias, whether you know it and like it or not. But it's learning that you have those learning what yours are, and then being able to consciously overcome them and not play into them or not to give in to them and make decisions based on those biases if you know or think you have them. So let's do a little example here. This is Ellen. Ellen is an accomplished chef. You can look at her picture there. Beautiful love sports animals hanging out with friends, volunteers at homeless shelters. Her best friend is her sister, Kate. She loves playing bingo, being with her family. Ellen is just overall a great person and someone to really just enjoy talking to and hanging out with. So everyone just take a few minutes look at Ellen, kind of just, you know, what Ellen looks like. I'm trying to help you out here and, you know, just think about what you like to hang out with Ellen. Now. Can you pick out Ellen? I'll give you a few minutes just to look. Do you think it's the top row? Someone in the bottom row. Who do you think is Ellen? Few more seconds just to look. Everyone have their picks. Everyone think they got who Elon is. All right, Let's see if you're right. Who picked the bottom center? Well, unfortunately, if you did, you're wrong. This is not Ellen. So you can see we're on a recorded seminar here. You don't even have to raise your hand. And no one knows if you got it wrong. And it's okay if you did, it's normal. The actual Ellen was the one in the white t shirt. She was actually if you go back and look at the bottom right corner, that is Ellen. How many of you got Ellen, right? Just think to yourself, if you got Ellen right, if you didn't, you're in the majority. Most people cannot pick out Ellen or they have real great trouble trying to find Ellen. And if you are one of those people, that is okay. It is okay. To be honest. It is okay to not be able to find Ellen in that picture. And it's because of an unconscious bias or a certain form of it, but it's also because it's part of our brain chemistry. And we'll get to that in just a second. If it was easy for you to find Ellen and pick out Ellen, there is a great chance you may be of the Japanese descent or, you know, close to that ethnicity. If you did not pick her out, you may be more of another race. And it's called the other race effect. It's difficulty distinguishing faces or characteristics or things that are not like our own. And this is one of the things that we always have to consider, because if you think about it. Think about who you would tell your diary secrets to or who is in your inter fold. Do they look a lot and act alike like, excuse me? Do they look a lot and act like you more than others? Now go out a little more. Maybe now your social friends, you don't invite them into your house all the time. If you do is maybe just to pick you up, but you're not going to show your deepest, darkest secrets. Is that a little more diverse? And then keep going out? It's because we tend to when our brain tells us that we should feel safer around things and people and characteristics that are like us, and that is a form of an unconscious bias, because then we gravitate toward things that are most like us when we should really open that idea box or open the mind a little more. And like I said, but our brains are wired this way. So unless we know that and unless we really work against it, then it's really hard to overcome it. And the area of our brain that's wired this way is called the fusiform face area of the FFA. It's in the back of the brain. It's those little red things. And what happens with those little red things is when they see something similar to you or see something that, you know, portrays your characteristics or traits, it starts to light up and you get kind of that endorphin, vigorous, you know, excited energy type feeling. And then when it sees something that's different from your own familiar, it tends to say, stay away, stay away. And this isn't a bad thing necessarily because it's what tells us to stay away from a tiger approaching us. You know, the danger, danger, danger. But it's when it portrays over to other people or other humans, that is when. We really have the issues with it. So experiences are tuning our neurons and our unconscious bias, just making sure that we know it's there and making sure that we are working against it. We don't want to have that us versus them, you know. Well, they're different. They're this, they're that. They're a defense attorney. They're this or whatever it is. We don't want to have that. We want to, you know, not group people in that. And so that is when it comes into civility and professionalism, because if we have that thought process where if we tend to shy away from things that are dissimilar to us. Then that's when we can have some problems, especially in the legal profession. Now, in the legal profession, this could happen. With how many clients do you say, Oh, I don't trust that client or I don't believe them? Are they all ones of a certain race or are they all ones of a certain, you know, gender? Is it something like that going on or do you just dislike opposing counsel because, you know, they may have different belief system than you like on a different level? What is it and is it your brain or a bias working over time? And do you act differently towards those different people than you normally would to someone who is more like you and more similar? These are things to kind of think about and put in check. And again, you're not on camera right now. No one knows what's going through your head or, you know, thinking through it. But it's just something to really think about. But if we have a brain, we have a bias. And so it is something to think about and it's not always intentional. Normally it's unintentional and some of it is spanning from our childhood. It's just, you know, we were constantly, especially the older generations exposed to women, our primary school teachers, women are nurses, men are plumbers, men do construction. So our brains are wired a certain way when it comes to certain classifications and people. And those are things we really have to really break out of, because not only is it wrong to do that, but it's also now unethical under 8.4 G if your jurisdiction has it or 8.4 D prejudicial to the administration of justice to really do those types of classifications and things. So we really have to look at those things. Now there's other ways we can violate. Particularly 8.4 G in the practice of law as well as 8.4 D two if your jurisdiction does not have 8.4 G specifically, and a lot of those ways that we can have unprofessional or incivility is through not necessarily the representation of clients directly, but everything that goes around maintaining and practicing in a law firm such as recruitment, screening, hiring process, work allocation, promotion, discharge, interactions with coworkers, attendance at events, anything and everything policies, decisions, anything can affect 8.4 G or 8.4 D. So let's take a look at a few of these categories and where we can start to see it in the practice of law. The first is with job postings. How many of you are responsible for posting new advertisements for, you know, legal personnel, non lawyers, as well as new lawyers for your firm? And going through that process, some of you may be some of you may not be. But if you are and even if you task it to someone else, you need to make sure that there is no unconscious bias or, you know, any type of discrimination to violate 8.4 G or 8.4 D coming through in your job postings. Now we're going to go through some different example job postings. Not all of them are for lawyer jobs, but they're for business jobs or secretarial jobs because in a law firm we just don't post to hire new lawyers. We also post to hire support staff. So we really have to look at those things. And these are some things to really be cautious of. And it could just be. Hair's just not thinking when the job postings are written. Or it could be other things as well. This is the first one. This is a web design company. They're asking to hire a new person to be a content writer, SEO specialist. And if you look okay, they're doing good. You know, they list the qualifications. But at the bottom there, they put this is the responsibilities of a receptionist. So female candidates are preferred. That is bias. That's maybe an unconscious bias that this person, this job poster holds, thinking that only females can be receptionist. Now, a lot of people try to argue that they do like receptionist to be female for a few reasons. One of those reasons that I've heard, which is not a good reason and not one to discriminate, is that when someone calls the company, female voices are more pleasant to hear on the phone that they're more inviting warmer than a male tone voice. But that's not a reason to discriminate or not a reason to, you know, have that unconscious bias there. Another reason I've heard is that they're better at organization or just the multitasking of things. But again, that just again, a bias that that is more preferred by females. So we really need to watch these kind of things that we're not stereotyping and putting people in classifications and keeping that out of the job posting market. This is another couple of them. This was for a documentation. Invoice processor, female, 29 years old and single. None of those have anything to do with documentation processing. Again, we're having that could be a discrimination in violations of our ethical rules. Accounting Assistant have a saying single and certain age and female again. Again what? Why do we need that there? And then the other side, that was a driver, executive driver, and it says male 30 to 35. So we have more clerical stuff on the one side where we have females. I don't know why they have to be single and then we have a male because it's a driver. So again, these are stereotyping. These are putting people in classifications and boxes. And if you take these into the law context, if these were for lawyer jobs and stuff, then you're going to run into some problems there as well. And it's just to note, just for kind of humor, since here if you look at the one on the left hand side of your screen for the accounting assistant, it says or for the documentation and accounting assistant, the very bottom line says for both positions, email your resume with a recent photo. You can tell there's something a little more going on there than just accounting or documentation. This is another type of job posting that we need to watch out for. The phrase fun young team. I'm sure this is a dynamic, very entrepreneurial culture, and maybe they do want a fun young team. But then we get into more of like the age type discrimination or age unconscious bias. Why can't someone older be fun? What does young mean? I think I'm young at my middle age. You know where I'm at. I'm sure some of you that are even older than me would consider yourself young. So we've got to watch out for those different adjectives. Sometimes adjectives are not our friends when it comes to job postings. This is for a desktop administrator, which is a position that could be held in a law firm, too. You know, you hire your IT, your desktop support, and if you read it, it's going good, going good. But then it says in the very middle, it's nice to be one of the good guys. Innocent as it may seem, it is considered kind of. An unconscious bias or discrimination at that point, especially in today's day and age and in society where we just need to use neutral language. And so taking out the word guys, maybe putting in people or just one being part of the team, you know, really looking at that wording is very important so that we don't run into any ethical violations or anything like that. And and you don't want your job posting to excuse me, your job posting to be the next trending thing on social media or TikTok either. This is for a director of operations. We are particularly interested in receiving applications from candidates who identify as female. I get what they're going for here. They want to diversify. Um, potentially is kind of how I'm reading in between the lines, but the way they're going about it is not correct and could has that classification, that stereotyping in there and discrimination, even if it would be in the reverse or, or it is discrimination and that and stereotyping. So we really need to watch our wording, good intentions, our good intentions, but we all know good intentions can still land you in court and still land you with a problem on your hands. This is another one where we have another job posting it says requires no Indians or Asians. Please must speak English. That is blatant, very, very blatant discrimination at that point based on your race and or your race ethnicity. And so we really have to watch out for those as well. This one actually. This one too. Race can never be a reason not to hire someone. Now, if this would have been a Catholic church or something, you can read there the post and it says Caucasian. But if it for instance, let's change it around a little bit. If it could have been like a Catholic church hiring a new Catholic school teacher, they could put in there must be Catholic. They can put in, there must be Catholic, because their mission is to give a Catholic education. That's their foundation. It's called a bona fide occupational qualification. They cannot say a Caucasian Catholic. You can't have a designation of a race, religion, anything else. As long as you have a bona fide occupational qualification like I was just talking about, you know, because it goes to the foundation of their business, the core of their curriculum, what they're teaching in that. That is okay if. But it can never be race. Race can never be a reason not to hire someone or to hire someone. So we really have to watch out for those. So that is where this one went wrong there. This one I just put in here because it's funny and I'm sure some of you may want to use this in your own law practice. As for any potential discrimination, 8.4 G violations. If it was a law firm or 8.4 D, I don't know if there's any in there or not, but it's just kind of amusing. This one's for McCook Glass and Mirror Company. They want a new employee and with a clean driving record and highly motivated, they did put this disclaimer in there and it tells me they've probably been burned before. So I'm going to read it to you because I just think it's funny. Do not apply if you oversleep, have no alarm clock, have no car, have caught, often have no babysitter every day, have to give girls have to give friends rides to work later than we start work experience flat tires every week have to hold on to a cell phone all day or become an expert at your job with no need to learn or take advice after the first day. Must be able to talk and work at the same time. Must be able to remember to come back to work after lunch. Should not expect to receive blue purple ribbons or gold stars for showing up to work on time. You can see they've probably been burned in the past. This is something they're overcoming to hopefully get the right person in the job. But again, we need to watch what we do. You could see this being viral on a TikTok in no time. The next big area where we do see a lot of 8.4g and 8.4 D violations, and particularly just in the hiring process we just looked at job postings is also when you're collecting resumes for jobs or when you're collecting resumes to fill new attorney positions, to fill new assistant positions, You have to be careful in those, too, because if you think about it, when you get in a resume, what's the first thing you read their name? Now, once you read their name, do you or do you already form a picture of what this person looked like? If it says John Smith, do you envision a Caucasian male? If it says Lakeisha Williams, do you picture an African-American female? The name itself. And reading the resume can cause those biases to come through. And those pictures, because we're human, we're human. And that's kind of why a lot of employers have gone to blind resumes, meaning they use a resume company and they remove the names on the resumes and they're just numbers. And so that takes away that, you know, seeing that name for the first time and already forming that picture or forming that image. Now, obviously, you can still form it based on where you see that go to school or different things on their resume. It could send off certain tones or vibes, but it helps kind of take away and alleviate that. And so they remove the names and then when they pick the people they want to interview, they give them to the person. They person coordinates the number with the name and then they call them for the interview. So then they meet them for the first time on the interview, and that's their first impression of their name. And so we have to really watch out for it because sometimes names can burn us and there is an exercise. We're not going to do it here today. But if you wanted to take this back to your law firm just to kind of do a training so that everyone knows, you know, to watch out for their own unconscious bias or just what it is. And like the trainings that I've done with you here today, this is one that you could also do. And this one, what I've done and you can change it around to whatever meets what you're needing. We have jobs to fill. On the one side. So say you could change those to whatever jobs you're filling in your firm, and then you have names on the other side. And what I have normally my students or people in a seminar do, if I'm more in person, is match them up. Match them up. This is all you get. This is like the blind resume. If I said I need you to fill these positions, all you gets their names. The rest of their qualifications are exactly the same. Stellar. They're good for any job on this list. Put them in certain positions just by their names. And a lot of people start to look at me like, I can't do that. Some say, okay, and then some say, well, you know, I'm going to go against what my natural instinct is because I know what she's doing. So then you have people kind of fighting their natural feeling for it. And so it is just kind of a good exercise. But if you just do it, your first thought, just looking at it blindly, who would you put where? And your answers may surprise you. And all these people on here, some of them are real, some of them are fake. And but they all, you know, are people. So why are we just classifying people by name? And when I pull classes after I do the exercise, I say, why did you put, say, Linda Allen into the receptionist? And they're like, because Linda sounded like an older name. Or I knew a receptionist named Linda once. That's what people do based on our own past experiences, what we've been taught, what we've been brought up thinking. We now use that to classify people into certain categories. That's that FSA, FSA, part of our brain back there working and we've really got to fight against it. It all goes back to that. If you have a brain, you have a bias. And a lot of times, too, when I do this, the males usually go more into the police officer. About 90% of the time. You know, they start doing the gender roles, too, on that. And that's because we're ingrained to think that way. If you look at these images, you see here, a male white male is a lawyer doctor. You see a mom, a female homemaker, a female receptionist, a female teacher. These are images that have been just randomly drawn from the Internet, but have probably been ingrained in me and probably a lot of you since we were kids. Maybe not these exact images, but just the roles people play. And it's not since more recently that a lot of people are more stepping out of those breaking the mold, as they say. And so that's what we've got to think of, too. We've got to stop classifying people and putting them in roles when it comes into the legal profession, especially when it comes to maintaining a law practice, but also to all this can be translated over into how you interact with your clients too, because you may treat your wealthier clients or of a certain race better than your other ones, and that shouldn't be the case. And so we need to stop stereotyping. We need to start unconsciously doing that and really think about how we're acting and interacting with people in the legal profession, whether it be in the office or whether it be with clients in the courtroom or with opposing counsel or even social events. We need to think about it. We can also see this coming through in our screening and hiring if you're requiring certain tests. We've all probably learned in school for certain roles that have nothing to do with the role, then you're really it's a discrimination. So say, for instance, you want someone to deliver, just mail around your office, but then you ask them to do a research memo. What does that have to do with delivering mail? So there's different things like that that we really have to watch out for as well. When it comes to that, if you're doing do any testing for positions, but the biggest one comes in for your screeners and the people that are actually interviewing your candidates. And an exercise I do here is it's kind of one I've already mentioned. I make everyone think of, you know, who would be on your top five list of people you trust, your diary, innermost secrets in your bedroom when you were a little kid late at night, slumber, partying. You know, this is the the 5 to 10 people and not family friends only or excuse me, not family members, only friends, classmates, coworkers. You got to take family members out of it. And a lot of people can't get to five. I can get to about five, but not much more than that. And then I have them go through and write down those people's gender, race, age, sexual orientation, education, disability or other. Just something about them, just a little bit about them to see, you know, just about their makeup. And it's amazing that usually about 85 to 90% of the time when I pull the class after that, that normally those inner 5 to 10 people are most like the person sitting there in front of me with the same race, the same gender, the same age about sexual orientation. So we tend to gravitate and trust, like really trust people that are most like us. And then I say, okay, now let's expand this. Let's go to the ones you say hello, pleasantries, acquaintance or, you know, comfy in the front yard. You know, you go up the different levels and as you go up, the different levels, that diversity gets a little bigger and bigger and bigger. But the thing with this is, when you think about it, when you're interviewing someone for a job or the person you have who's interviewing them, they want that person to be in that inner circle, that trust zone, because otherwise they're going is going to be skeptical of them and not trust them. But if their inner circle trust zone is solely based on people that are like them, then that's going to be what's going to happen. And that can be a form of discrimination and violation of 8.4 G or 8.4 D, if that's what your jurisdiction uses. You can also see it through different law practices. And if you have upper senior partners assigning tasks to younger lawyers or law clerks, they usually assign key projects to team members who they have the most connection with. If they have the most connection with people like them, a Caucasian male with a Caucasian male or a Caucasian female with a Caucasian female or whatever the case may be, then that can be a form of it too, in that. So these are areas where lawyers really don't think that they can have these problems or they just think, well, it's the law practice, but it's still a form of incivility of unprofessionalism under those rules. 8.4 G and 8.4 D and having these areas. So really taking a look at that and really what the inner workings are is really important too, because then it all the way goes up to the partner track or promotion track who's getting promoted fastest. Why is it based on other attorneys recommendations? Again, then you have that affinity. Who's most like them? That's who they're going to promote the most. You can also see it through different discharge to people who are let go in the context of the law firm. So you have to look at those different things as well. But we really need to look at all those areas. So it's not just talking with clients, which we'll get to here in just a second. It's not just dealing with opposing counsel whose mean professionalism is not just those areas. It's everywhere. It's in building the law practice, maintaining the law practice, working with your employees and your staff and your non attorneys. It is in all of those concepts that we really have to be aware of and make sure other people are aware of it as well. That moves us into more now away from kind of the daily operations, but also civility comes in with dealing with our clients. Now, we've already kind of briefly touched on that you can treat different clients differently based on, you know, biases you have or different things, which is not right. It's a violation of the rules. But you've also got to remember, it's not just the way you treat them, but also our civility and communications. And so how many of you and again, I can't see your hands have had clients where you just cannot stand them or they just annoy you or they're just calling all the time. They're pressing your buttons. They're so impatient. They're not respectful of you and you are just over it. Has anyone ever had those clients? I'm sure you have. I know we probably all have. And so but even in those most difficult client trying times, we have to remain civil. And the in front of you by Samuel Johnson was when once the forms of civility are violated, there remains little hope of return to kindness and decency. And so we have to, no matter how frustrated we get, be civil. If you cannot maybe step away, maybe have your paralegal or legal administrative assistant call the client back, maybe do something a little differently so that you do not go off the rails. Sometimes they say or off the fly off the handle or do something that's going to get you in violation of the rules of professional conduct. Now, when clients make unreasonable demands, you have to have a plan of action in place, whether it be having that legal administrative assistant handle it, whether it be you stepping away for a little bit, whether it be something you need to have a plan. You can explain the benefits, obviously, of civility. You know, saying, you know, I know you're making this, but this is why. So, you know, this is what we're trying to do. You can tell them, you know, this is how we're going to work this out, like a mediation thing. You can have whatever plan of action you need to have in place, but you just need to remain civil in doing it. You also need to know that as lawyers, we can fire clients. Isn't that a novelty? We can actually fire clients. And so you need to know when to say enough is enough. And this means, for instance, if you have a client who's just not listening to you acting in civil, doing stuff in a way that is testing your buttons and eventually is going to probably lead to you blowing up or blowing off the handle or, you know, you're just lack that communication. Then you just need to say enough is enough and you need to just say it in that way. Say, you know, we have a breakdown in communication under X rule. You know, I'm withdrawing from your case. Happy to work with any new lawyer you have. If there's an outstanding bill, send it. Do not hold the client's file hostage, though, until they pay the bill. That is that is in violation of the rules in most jurisdictions. But you can say enough is enough. And coming to that point and realizing it is very liberating for lawyers and it's very good thing to know your own boundaries and to know that, you know your worth is more than just being yelled at by clients and having that frustration of communications at that point. So know to say enough is enough. Now, when dealing with uncivil counsel, sometimes you can't get rid of them all the time. And this is what the lawyers and the different initiatives have really tried to push forward and really tried to work on. Is the communications between opposing counsel. Now, most of these do come up in discovery context, unfortunately, which is not always a fun place to have it. And there are several, several discovery stories that come about. There's ones of and you can even Google these if you just Google talking lawyer, you will find one where a lawyer from pretty high powered law firm. Was frustrated during a deposition and bent over and started twerking in front of opposing counsel. And then started making comments about how opposing counsel liked it based on gender identity or, you know, perceived gender identity. Those types of things. So Google talking and you'll find that one, there's another case out there with uncivil opposing counsel. This was another deposition. So another discovery where the lawyer was just so frustrated saying that the opposing counsel, who was different gender than her, had just belittling her. Finally, she grabbed the tables, ducked her head underneath it, and just and opposing counsel kind of looked at her and goes, what are you doing? She goes, I'm seeing if you have anything between your legs. That's incivility. We need to stop there on the most types of actions during during discovery. And there was actually a recent one cited. In law 360 about some lawyers in a big firm. Think out of Atlanta. Don't quote me on that, but think out of Atlanta. They had been sending emails back and forth with racial slurs, different comments, belittling remarks about gender, about different employees or opposing counsels, different things like that. And those eventually came out and they were turned in and they got fired from their firm. So you can see it's internally like we just talked about as well as externally when it comes to, you know, different incivility that can happen as well. That was the case, the one that was just a recent case. I can't remember the lawyer's name, but it did hit the news, especially if you have Law 360. It was in there in the past month or so on that last one. But dealing with opposing counsel can be challenging, but knowing what to do. You obviously have to keep your dignity, your respect, your professionalism. Don't let them get to you. Smile. Try to ignore them. Don't engage. Always fight up. Never fight down. Have compassion. You don't know what's going on in their life. They could have a million things going on personally, and they're just taking it out on you. And does that make it right? No, but have some compassion because obviously something is not happy with them if they're being that uncivil. Be professional. Just know that karma can come back around and hurt them as well as it can hurt you. So you need to take that into consideration as well. People who don't believe in karma out there, good for you. I personally do. And I know that's going to come right back around to bite me at some point. Keep always communications open when you're dealing with counsel, making sure you're doing the right thing, outsmart them. Stay ahead. Prepare, prepare, prepare. You don't want to be the one up for sanctions in front of the judge. You want to be the one filing for those sanctions, not the one up for those sanctions. So play the long game. The waiting game. Always check your own attitude. Don't ever say the phrase, well, he did it, so why can't I? Because that is not playing up. That's not, you know, doing the right thing At that point. We really need to watch our professionalism. Some little key trips. Excuse me. Key tips here to. Um, if they don't provide certain documents in discovery, you can obviously memorialize it. I've tried to call you five times. You have not had the courtesy return. I still have not received the documents. And then, you know, just be professional. Don't say where are those effing documents or where is that like use professional language. Use a professional tone. In that circumstance, you can also memorialize everything like these little key tips here say is good because if you do have to file a motion for sanctions or a motion to compel with the court, then obviously this is going to be the best diary of what's going on. You can say, you know, I've reached out to them all these times, had nothing back whatsoever. And so this can kind of help the judge see what's really going on on a time scale, too. And just, you know, seeing that in real time and real person there. So we are going to go through some examples here of lawyers who have been suspended or have been disciplined for their actions of being uncivil. All this actions with coworkers, opposing counsels, different third parties. So the first one here, this is Mr. Glenn Robinson. He engaged in sexual behavior with a current and former client. One of the clients included a paperclip instrument incident. He created a hostile work environment, too. It was kind of a quid pro quo sexual harassment situation with his client. This was considered in violation of 8.4 D 8.4 G two. He was suspended for two years for the practice. So remember 8.4 g. That discrimination includes sexual harassment as well as regular just harassment and bias and stereotyping. So it's a very broad rule. If your jurisdiction does not have it, then they can get you under 8.4 d prejudicial to administration of justice. Or if they have another rule that they have maneuvered in there or reformed based off of the ABA model rule. So you need to watch out for those things. Another example, Robert E Abrams represented a married couple to file a construction contract lawsuit against a former builder. Abrams had a really negative opinion about the judge, and instead of keeping that negative opinion to himself, he wrote emails to his clients about how he thought the judge was a sissy, had been beaten up as a child. Really derogatory in the sense of, you know, sexual orientation, calling him gay and different things. When Abrams really had no idea anything about the judge, he just didn't like him. He wrote all this stuff to his clients. He didn't keep it to himself. He didn't even just write it internally, which is still bad and wrong. And you can get disciplined for that as well. But he wrote it to his clients. So these clients who have their case in front of this judge are hearing their lawyer really badmouth this judge to them in written correspondence. Do you think that's set well with those clients? It didn't. The clients reported this lawyer to the disciplinary board and he was suspended for three months. So we really have to watch out for checking our attitude and making sure that we do things on the up and up and our clients can turn us in just as well as our colleagues. This is one out of Indiana. This is actually one that it's a cautionary tale to a lot of us because none of us like robo telemarketer calls. If you do, you're in probably a class or world of your own. But Stacy Kelly claimed to be her husband's lawyer, so it was a telemarketer calling and she said, Hi, I'm my husband's lawyer. So she's putting herself in the practice of law with an 8.4 G here in Indiana because she says she's acting in as a lawyer. She got the call from the telemarketer. And on that call, she called the telemarketer gay. Sweet said he thought the male representative was feminine sounding voice, really going after the sexual orientation there, which is forbidden under 8.4 G. She was publicly reprimanded in 2010. As I said earlier, Indiana has had 8.4 G on the books for a while. So it is something that you can get disciplined under. This is another one out of Indiana. Lawyer McCarthy represented a title company which was involved in a dispute regarding a cloud of title on a property. The agent representing the seller of the property had a secretary send an email. She just wanted to set up a meeting between her, her attorney and opposing counsel. She sent out the email to opposing counsel. This is the email that opposing counsel sent back. I know you must do your boss's bidding at his direction, but I am here to tell you that I'm neither you nor his. Use the N-word. You do not tell me what to do. You ask if you ever act like that again. It will be the last time I give any thought to your existence. And your boss will have to talk to me. Do we understand each other? This person was 30 day suspension without automatic reinstatement, meaning he had to reapply to the bar, get accepted again, and that they could deny him or turn him down at any time. It is not worth being uncivil and unprofessional to behave that way. This is the talking lawyer story that already kind of briefly mentioned to you where the attorney bent over and used different sexual orientation. Things you can see there in the first paragraph with those were two opposing counsel in the middle of a deposition. This one was not sanctioned under the rules. Texas actually does not have rule 8.4 G. It's one of the jurisdictions that said they didn't want it, but they do have 8.4 for prejudicial to the administration of justice. The judge found no sanctions here, though, because this went viral. He was taken off the case, fired by the client, and the judge said he'd suffered enough. This is the other one I already told you about where we had a different deposition, different lawyers, where she looked on their table to see if there was anything between his legs. Connecticut, again, this could be an 8.4 G violation as well, because it goes to unprofessionalism at that point. We also need to watch out for racial comments, calling people like the black man, the black guy. This was a lawyer, Dorothy Thompson, who was representing the husband and divorce in 2003, started making these racial references. She was publicly reprimanded for those. Those have nothing to do with the case. She was pulling race in for no reason. And so we've got to watch how we litigate and how aggressive we are because it can get us in trouble, too. Same thing with this. Talking about someone's citizenship, which is irrelevant to the issues, was a public reprimand to this attorney here in Indiana as well. We really have to watch out for that other various conduct here. You can see using phrases like stupid idiot, go back to Puerto Rico, be quiet, little girl. And the next one, anything like that, anything dealing with that can be violations. If it's not 8.4 G, the anti-discrimination rule, it's 8.4 D prejudicial to the administration of justice or your jurisdiction's equivalent. They will get you on these. We need to be civil in our conduct. We need to be civil and professional in managing our law practice like we talked about and in litigating for our clients. And how do we start? We make sure we have company policies and initiatives in place that eliminate the different areas that we've talked about that eliminate discrimination in recruitment, that eliminate it and screening and eliminate the bias of different interviewers and stereotypes you try to eliminate by training workshops, celebrating diversity, really looking at pay equality, too. If that's a problem within your firm, looking at these things, because even managing a law practice can get you in trouble with ethical rules. The ethical rules are not just for representing clients, they're for anything and everything we do. So we have to be very aware of that. Combating it. Just stay aware. Except that if you have a brain, you have a bias. You do. And we all need to be accepting of that. It's how we overcome that and how we remove those biases from our decision making process and how we speak up and hold ourselves accountable when we do see it. Slow down. Don't make those snap decisions. Don't say snap things. Just slow down in your practice and what you're doing as well, because we can only combat it if we are honest about it and know that we have it. And with social unrest, the way it is has been for the last few years and the way the economy is going now and how the new Supreme Court decisions that are coming down, it's going to be affecting practices. It's going to be affecting how different jurisdictions view these rules and how lawyers say and conduct themselves and how we hold ourselves up to high standards of professionalism. Social unrest can cause an effect on that as well. That brings us to almost exactly on an hour, maybe a little bit over. But if you have any questions or anything, you can always reach out and talk to me or reach out to the platform as well. They know how to get in contact. Thank you. And I hope everyone has a great day.

Presenter(s)

CS
Cari Sheehan
Assistant Clinical Professor
Indiana University Kelley School of Business – Indianapolis

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                                        Status
                                        Not Offered
                                        Credits
                                        • 1.0 ethics
                                        Available until

                                        July 11, 2024 at 11:59PM HST

                                        Status
                                        Approved
                                        Credits
                                        • 1.0 ethics
                                        Available until

                                        June 30, 2024 at 11:59PM HST

                                        Status
                                        Approved
                                        Credits
                                        • 1.0 professionalism
                                        Available until

                                        December 31, 2024 at 11:59PM HST

                                        Status
                                        Approved
                                        Credits
                                        • 1.0 ethics
                                        Available until

                                        July 11, 2025 at 11:59PM HST

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

                                          July 11, 2025 at 11:59PM HST

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

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