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Zealous Civility: Keeping Calm and Carrying On in Times of Crisis

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Zealous Civility: Keeping Calm and Carrying On in Times of Crisis

Zealous Civility: Keeping Calm and Carrying On in Times of Crisis

This course explores the concept of civility and what that looks like in daily legal practice and times of crisis. We will use recent events to define and set the context for upholding civility in the legal profession. We will also review the ABA Model Rules of Professional Conduct relating to civility and sanctions for failure to uphold it, as well as relevant caselaw.

Presenters

Joseph Russell
Shareholder
von Briesen & Roper s.c.

Transcript

Welcome to today's program, "Zealous Civility, Keeping Calm and Carrying On in Times of Crisis." My name is Joseph Russell, I am a lawyer in the law firm of von Briesen and Roper based in Wisconsin. I am a litigator, I also serve as the firm's ethics counsel. And, in years past, have served in various roles for the State Bar Ethics Committee and on the Board of Administrative Oversight, which oversees the lawyer regulatory system here in Wisconsin. I'd first like to focus on the title of today's program, zealous civility, that, of course, is a oxymoron, but I think it reflects the countervailing forces at play when discussing civility in the legal profession. Of course, we've been trained to be zealous advocates doing whatever we can to prevail on behalf of our clients. But at the same time, we are officers of the court and we have a duty of respecting, honoring, and dealing civilly with those within the court system in the various jurisdictions in which we practice. Now the second half of the title, keeping calm and carrying on in times of crisis, that is a obvious nod to those World War II era posters that were plastered in the tube during the London Blitz in England. Reflecting sort of the stiff, upper lip, Englishness during times of crisis that no matter how tumultuous the times are, trying to behave in a orderly fashion and getting the job done is very critical. And that's the way I kind of think about law sometimes, especially in the last two or three years where we have seen various crises. Defining civility, I have offered two definitions here, one from the Oxford Dictionary and one from Miriam Webster. Quote, "Formal politeness and courtesy in behavior or speech, civilized conduct." Obviously that's pretty clear, but I wanna dig a little bit deeper and go to the etymology of the word, which is from the Latin word civilis, relating to citizens. An early use of the term denoted the state of being a citizen and good citizenship or orderly behavior. And that's kind of the way I like to think about being a lawyer in today's society, that we are not only expected to be good lawyers, we're supposed to be good citizens because we are the exemplars of the legal system. Now it's one thing to define civility, but practicing civility is a little bit more challenging. And that challenge has been addressed by various individuals throughout history. I'm gonna focus on a few dating back to the 18th century. Of course, I wanna refer to George Washington because he, as our first president, was often considered the supreme model of civility in this country. If you don't know, he had 100 plus rules of civility that he abided by. Some of them are outdated, some of them are a little cringe-worthy, but rule of civility number one I think still applies and has value. Quote, "Every action done in company ought to be with some sign of respect to those that are present." I fully believe that still. And if that is how you approach things in your career, And if that is how you approach things in your career, I think that there will be some reciprocity that you yourself will be treated with respect, and it'll be a lot easier to resolve disputes. Now if you don't treat somebody with respect or they don't treat you with respect, things can unravel pretty quickly. And that's why I use this quotation from Samuel Johnson, not only because he's a lexicographer, which I do like lexicographers, but I think that there's truth in his statement that "When once the forms of civility are violated, there remains little hope to return to kindness or decency." To put it a little bit more colloquially, once the toothpaste is out of the tube, it's hard to put it back in. And I think that's the case, when someone starts to be uncivil, it's hard to maintain civility and also to resolve things on a reasonable basis. Moving forward in time, I've jumped to the mid 20th century, John F. Kennedy, his observation on civility was this. Quote, "So let us begin anew remembering on both sides that civility is not a sign of weakness and sincerity is always subject to proof." "Let us never negotiate out of fear, but let us never fear to negotiate." "Let both sides explore what problems unite us, instead of belaboring those problems which divide us." Along those lines, George W. Bush, and I'm trying to balance those presidents that were Republican and Democrat, George Bush wrote this. "Civility is not a tactic or a sentiment, it is the determined choice of trust over cynicism, of community over chaos." Barack Obama further commented, quote, "I am the eternal optimist, I think that over time people respond to civility and rational argument." And I fully believe that too. In the course of my career, I believe that the more respectful, civil you are to your opposing counsel, your opposing parties, to the court, rational argument tends to prevail, and emotional anarchy cannot undermine a reasonable resolution. But still, you may ask, "Well, what is civility?" Sandra Day O'Connor had this to say, "Unfortunately, civility is hard to codify or legislate, but you know it when you see it." "It's possible to disagree without being disagreeable." The ABA at the start of 2020 defined stability as this, quote, "Civility can be defined simply as acting with formal politeness and courtesy when communicating or working with opposing parties, opposing counsel, clients, and outside parties." So all of that sounds just fine, but I want to cast our minds back to what happened in 2020, which upsets these normal definitions of civility. Now that year began with a presidential impeachment and there was highly contested election. Everybody knew, motions, standards of advocate would be strained and the ABA president at that time, did make an effort, aspirational though it may be, to make 2020 the year of civility. She wrote, quote, "As we begin the year with a presidential impeachment and will end the year with an election that is likely to be as divisive and contentious, we must each strive to set an example of civility, both in our practices and as citizen lawyers." And again, I like that concept that we are all citizen lawyers. Unfortunately, our aspirational goals of civility hit a speed bump in early 2020 with the presidential impeachment proceedings. You might recall Chief Justice John Roberts scolded the House Manager and the President's counsel during the impeachment proceedings. He said as follows, quote, "I think it is appropriate at this point for me to admonish both the house manager and the President's counsel in equal terms to remember that they are addressing the world's greatest deliberative body." And then just an aside here, they were debating whether they could subpoena John Bolton and there was sort of a snippy name calling, et cetera. So that's why Chief Justice John Roberts weighed in, and further stated, "One reason it has earned that title is because its members avoid speaking in a manner and using language that is not conducive to civil discourse." "I do think those addressing the Senate should remember where they are." Yet fast forward another year, in February of 2021, Senator Patrick Leahy, who was the presiding officer over President Trump's impeachment trial, had to call for civility again within the Senate Chamber after everybody started laughing when one of Trump's defense attorneys insisted that depositions for witnesses should be done in his law office in Philadelphia. And that included Vice President Kamala Harris and House Speaker Nancy Pelosi. He didn't wanna do it by Zoom and, as you know, almost everything was being conducted by Zoom at the time. So everybody laughed at this idea that these deponents would have to show up in Philadelphia in person. The President's counsel said, "That's the way it works folks, I don't know why you are laughing." Now the election and the aftermath of the election continues to send ripples through the legal community, insofar as many lawyers have been arrested or criminally charged or have been disciplined for unethical behavior related to the election and what they did or didn't do with regard to it. Here, I just pulled something from earlier this fall. September 1st, Law 360 was reporting that the top attorney for the Oath Keepers was arrested on allegations she planned and attended the January 6th, 2021 siege on the US Capitol and withheld and destroyed evidence relevant to the ongoing criminal investigation into the riot. Legal periodicals have also been reporting on the efforts to reprimand, scold, disbar attorneys that had some role in contesting the election or filing lawsuits regarding the 2020 presidential election. Here's another one from Law 360 that, as of September 1st, 15 attorneys hit with complaints over Big Lie suits. This is in addition to other attorneys, many high profile attorneys, being sanctioned or having grievances filed against them for their behavior during the election and it's aftermath. Now I bring these two examples up from Law 360, just as cautionary tales for those lawyers involving themselves in politics and representing lightning rod issues or peoples, that there's gonna be higher scrutiny going forward, I believe, regarding your conduct. And people are just gonna be more likely to file grievances based on your association with certain groups and/or causes. So in addition to angst the caused by the last presidential election and the aftermath of that, we also had to deal with COVID over the last two, three years. And there were various instances at the beginning of the epidemic where the judiciary had the ability to weigh in on the bad behavior of lawyers during the pandemic. The first case I wanna talk about is one arising within the US District Court for the Northern District of Illinois, involved a plaintiff who was alleging trademark infringement regarding his trademarks on unicorn-themed materials. regarding his trademarks on unicorn-themed materials. And there was a lot of back and forth between the opposing counsel, but it landed before the judge and the judge was not amused. This was mid-March, right when the pandemic started closing things down. The court said, "The world is facing a real emergency, the plaintiff is not." "The motion to reconsider the scheduling order is denied." And then the judge went on "If there's ever a time when emergency motions should be limited to genuine emergencies, now is the time." About half of the practice of a decent lawyer is telling would be clients that they are damn fools and should stop. So I'm sort of paraphrasing what a judge said, but the orders that he issued sort of reprimanding the plaintiff, in this case, reflects the judiciary's concern early in the pandemic that the lawyers appearing before them were not reasonably resolving differences regarding depositions, scheduling of hearings, that sort of thing. And that they had to reprioritize what they were doing and should be so called better citizen lawyers. Another case from early in the pandemic, March of 2020, there was a Florida federal judge who chastised attorneys who were squabbling over the scheduling of a 30 corporate representative deposition. The court said that, "We are living in an unprecedented situation." "Nevertheless, the lawyers in this case have been exchanging snippy emails over the past two weeks over the scheduling of a corporate representative deposition." "If all the issues we are currently facing were to be organized on a ladder of importance, this deposition scheduling dispute would not even reach the bottom rung of a 10 rung ladder." These two courts are reflective of the judiciary's insistence that lawyers conduct themselves in a reasonable manner and try to resolve differences during the pandemic. There were certain bars across the country that issued COVID-related standards of civility to help guide lawyers in sort of the unprecedented Zoom way of conducting their practices. But it did strain civility, as I'm sure you can all agree. Now on top of the presidential election and the pandemic, we also had a lot of civil unrest. And in 2020, in particular with the death of George Floyd. There were instances where lawyers were found to be behaving badly and were sanctioned by their respective jurisdictions. I take one example here from South Carolina where the South Carolina Supreme Court unanimously suspended the law license of an attorney who, on social media, was making unflattering comments about civil demonstrators and George Floyd himself. about civil demonstrators and George Floyd himself. The justices on the the Supreme Court of South Carolina invoked a rule that generally addresses other misconduct. You might see it in your own rules, it's often in rule 8.4, which reflects behavior that can harm which reflects behavior that can harm or is a threat to the administration of justice. Well, in this case, the South Carolina Supreme Court suspended this attorney for his behavior on social media based on his commentary on the social unrest. So I bring this up because you need to keep in mind that as a lawyer, a citizen lawyer so to speak, you're expected to be civil throughout the course of the day, 24/7. And just because you don't think you're wearing your so-called lawyer hat, doesn't mean that the jurisdiction in which you practice doesn't have the ability to reprimand you or otherwise discipline you for what could be considered the undermining of the administration of justice in your jurisdiction. And it's not just your ability to practice law, it's your ability to maintain your freedom with regard to commenting or acting on behalf of causes in which you believe. I cited here another case, this one involved some of the protests in New York. There were two very promising attorneys, great backgrounds, credentials, who were arrested for allegedly throwing Molotov cocktails during the New York protests. Again, I bring this up because lawyers often think, well as long as I don't do anything wrong while on duty in the courtroom, dealing with opposing counsel, opposing lawyers, parties, then it's not gonna affect my ability to practice law or my life. But just be aware that that's not true and your behavior outside of what you believe is your practice is certainly going to be under scrutiny and can be grounds for discipline. Now I'm gonna turn to something that's more local to me. There was a case here in the Milwaukee area where a lawyer in early June, 2020 was arrested for spitting on a young African American protestor. She ended up being charged with a hate crime and a felony, it was in the papers, obviously was terrible for her reputation, not just the criminal risks she exposed herself to, but practicing going forward is going to be difficult with that mark on her record. So just, again, be aware of what you're doing because even though you are not practicing as a lawyer when you do these things, it's going to affect your ability to practice as a lawyer. Now let's step back and look at the civility expectations of the US court system, and I'll start with the US Supreme Court. There's a case I cite here from 1985, In Re Schneider. Quote, "All persons involved in the judicial process, judges, litigants, witnesses, and court officers, owe a duty of courtesy to all other participants." You'll find similar statements in court decisions from around the country, but I want to go back to 1971. US Supreme Court Chief Justice Warren Burger provided a lecture that was titled "The Necessity for Civility." And bear with me because he made several salient points which I believe are still of value today. Quote, "With passing time, I am developing a deep conviction as to the necessity for civility." "If we are to keep the jungle from closing in on us and taking over all that the hand and brain of man has created in thousands of years, by way of rational discourse and in deliberative processes, including the trial of cases in the courts." "Whether in private negotiation or public discourse, in the legislative process or exchanges among leaders, in the debate of parties or the relatively simple matter of a trial in the courts, the necessity for civility is imperative." "Without civility, no private discussion, no public debate, no legislative process, no political campaign, no trial of any case can serve its purpose or achieve its objective." "When men shout and shriek or call names, we witness the end of rational thought process, if not the beginning of blows and combat." "Today, more and more new and vexing problems reach the courts and they call for the highest order of thoughtful exploration and careful study." "Yet all too often, overzealous advocates seem to think the zeal and effectiveness of a lawyer depends on how thoroughly he can disrupt the proceedings or how loud he can shout or how close he can come to insulting all those he encounters, including the judges." "With all deference, I submit that lawyers who know how to think but have not learned how to behave are a menace and a liability, not an asset to the administration of justice." Now I tend to agree with all of that, but the question that a lot of lawyer regulatory systems have is how to promote that kind of stability and to dissuade lawyers from behaving badly. And that brings us to the rules of professional conduct. I cite here a case from the US Supreme Court 2018, Azar V. Garza, where the Supreme Court simply states, quote, "Ethical rules are necessary to the maintenance of a culture of civility and mutual trust within the legal profession." So that said, let's take a closer look at those ethical rules and how they promote ethical and civil behavior. Let's start with the preamble, oftentimes something that people don't look at anymore, they go straight to the rules. But sometimes it's useful to look at the preamble of the ABA model rules to see what is their underlying purpose, and to see how today is sometimes ill-reflected in the sentiments expressed in that preamble. So let's start with the first comment within the preamble. "A lawyer as a member of the legal profession is a representative of clients and an officer of the legal system and a public citizen having special responsibility for the quality of justice." "As negotiator, a lawyer seeks a result advantageous to the client, but consistent with requirements of honest dealings with others." "A lawyer's conduct should conform to the requirements of the law, both in professional service to clients and in the lawyer's business and personal affairs." "A lawyer should use the law's procedures only for legitimate purposes, and not to harass or intimidate others." "A lawyer should demonstrate respect for the legal system and for those who serve it, including judges, other lawyers, and public officials." "These principles include the lawyer's obligation zealously to protect and pursue a client's legitimate interests within the bounds of the law, while maintaining a professional, courteous, and civil attitude toward all persons involved in the legal system." Now this goes back to the program title, zealous civility, it does seem like an oxymoron and this seems to imply, this portion of the preamble, seems to imply something that's virtually impossible to do. How are you gonna be a zealous advocate but, at the same time, be professional, courteous and civil? Seems like there's a conflict there, and I think most people would agree, there is sort of an inherent conflict in this zealous advocacy and the civility that must be adhered to at all times. Now let's move to some of the specific rules that I think address issues of civility. Model rule 1.2, and then let me just step back for a second. Almost all the jurisdictions in this country have adopted model rules, largely in total. There are some exceptions. I'm setting the model rules here, but always refer to your own rules of professional conduct that are in operation in your own jurisdiction because there are fairly critical differences in some cases. But for purposes of this lecture, I'm going to just refer to model rules and 1.2 is the first one I wanna talk about, scope of representation and allocation of authority between client and lawyer. Comment five to this rule suggests that representing a client does not constitute approval of the client's views or activities. Now I think this is important to keep in mind when you see someone, maybe a friend, colleague, who's representing a party that you think is disreputable. Some people might say that about a lot of those lawyers who are representing Donald Trump, well, how can you do that without endorsing his views, let's say, regarding the election results? But under the rules, just because you're representing a client doesn't mean that defacto you're approving those client's views or activities. Comment six to this rule goes on further to say, "If the terms upon which representation is undertaken may exclude specific means that might otherwise be used to accomplish the client's objectives, such limitations may exclude actions that the client thinks are too costly or that the lawyer regards as repugnant or imprudent." So let's imagine that someone calls you, or an organization calls you, you don't think you agree with them on various positions they've taken publicly. But just because you're going to represent them doesn't mean that you're endorsing those views. But if you feel as though you're going to be pushed to do something that your conscience abhors, I would address that up front in the engagement letter and identify those means that might be used to accomplish the client's objectives, but which you are not willing to undertake. Model rule 1.3, diligence, another rule I think applies to civility in the practice of law. The comment to this rule states, "A lawyer is not bound, however, to press for every advantage that might be realized for a client. " For example, a lawyer may have authority to exercise professional discretion in determining the means by which a matter should be pursued. "The Lawyer's duty act with reasonable diligence does not require the use of offensive tactics or preclude the treating of all persons involved in the legal process with courtesy and respect." So stepping back diligence, of course, we all wanna be diligent lawyers, but don't use diligence as a sword and make unreasonable requests or resort to unreasonable delays as a tactic to get what you or your client wants. Moving on rule 3.1, and this is relevant in those cases where jurisdictions are investigating the behavior of those lawyers that had filed suits contesting the validity of the last presidential election. So under rule 3.1, meritorious claims and contentions, as the comment states, "The advocate has a duty to use legal procedure for the fullest benefit of the client's cause, but also a duty not to abuse legal procedure." Now that's gonna lead to a lot of philosophical debate as to what is the proper and improper use of the legal system to advance a client's goals. Common two to rule 3.1 goes on to say, "What is required of lawyers, however, is that they inform themselves about the facts of their client's cases and the applicable law and determine that they can make good faith arguments in support of their client's positions." Now I think that's wise advice, that you shouldn't have to rely exclusively on a client's representations before, let's say, filing a lawsuit. I think there are rules within the federal rules of civil procedure that are are somewhat similar to these ethical rules. You have these Rule 11 sanctions that can be applied if lawyers are filing pleadings that really have no basis in fact or law. But keep that in mind that you need to do a little bit of investigation, you can't rely exclusively on what your client is saying. Otherwise you could be sanctioned for violating Rule 3.1 for filing, let's say, on meritorious claim. Further on litigations, diligence, and in particular, expediting litigation, that is the subject of rule 3.2. As the comment to rule 3.2 states, "Dilatory practices bring the administration of justice into disrepute." "Although there will be occasions when a lawyer may properly seek a postponement for personal reasons, it is not proper for a lawyer to routinely fail to expedite litigation solely for the convenience of the advocate." "Nor will a failure to expedite be reasonable if done for the purpose of frustrating an opposing party's attempt to obtain rightful redress or repose." "It's not a justification that similar conduct is often tolerated by the bench and bar." "The question is whether a competent lawyer acting in good faith would regard the course of action as having some substantial purpose other than delay." "Realizing financial or other benefit from otherwise improper delay in litigation is not a legitimate interest of the client." This rule I think you should keep in mind as we're sort of heading out of the pandemic. There are various means by which litigation can proceed. It doesn't have to be in person, accommodations can be made by Zoom. There could be a lot of virtual communication, that would expedite litigation. This is something you need to keep in mind because courts do not like to rule over simple discovery disputes that parties should be resolving on their own. Now another rule about civility is candor. Rule 3.3, candor toward the tribunal. The second comment to the rule states, "This rule sets forth the special duties of lawyers as officers of the court, to avoid conduct that undermines the integrity of the adjudicative process." "A lawyer acting as an advocate in an adjudicative proceeding has an obligation to present the client's case with persuasive force." Performance of that duty while maintaining confidences of the client, however, is qualified by the advocate's duty of candor to the tribunal." "Consequently, although a lawyer in an adversary proceeding is not required to present an impartial exposition of the law or to vouch for the evidence submitted in a cause, the lawyer must not allow the tribunal to be misled by false statements of law or fact or evidence that the lawyer knows to be false." Now I don't think I need to remind everyone that your credibility, your reputation to the court is paramount if you're gonna be a successful representative of your client. A surefire way of destroying that credibility is if the court thinks that you're gaming the court system somehow, providing half truths. It's always great advice to be upfront with the court. If there is negative case law, cite to it in the brief, distinguish it, but don't try to hide the ball because the court is not going to be amused. And if you are considered providing dishonest and untruthful advice or arguments to the court, you could be found to be in violation of this particular rule and could be disciplined accordingly. Another rule regarding civility, this one regards your treatment of opposing parties and opposing counsel, 3.4. The comment to the rule states, "The procedure of the adversary system contemplates that the evidence in the case is to be marshaled competitively by the contending parties." "Fair competition and the adversary system is secured by prohibitions against destruction or concealment of evidence, improperly influencing witnesses, obstructive tactics in discovery procedure, and the like." Now this strikes close to home for me because I'm a litigator, and I think many litigators and a lot of courts would also agree that discovery is where you see the most uncivil behavior. Most of it's conducted outside the eyes of the judge, and there could be lots of opportunities for abuse in what you're trying to provide or trying not to provide to the opposing party. Obviously the rules suggest reasonable resolution of discovery disputes. But if you do destroy or conceal evidence, that's going beyond pale and not only could be found to be violating the ethical standards in your jurisdiction, but could lead to sanctions within the court in which you're appearing. In particular, spoliation, adverse inferences to the jury. In other words, if you're found to have destroyed relevant evidence, the inference is that that evidence was undermining your client's case. Moving on to rule 4.1, truthfulness in statements to others. Of course, everybody knows we should be truthful. This one specifies in its comments that "A lawyer is required to be truthful when dealing with others on a client's behalf, but generally has no affirmative duty to inform an imposing party of relevant facts." A misrepresentation can occur if the lawyer incorporates or affirms the statement of another person that the lawyer knows is false." "Misrepresentations can also occur by partially true, by misleading statements or admissions that are the equivalent of affirmative false statements." Now there's a lot to unpack here, but I think the most important thing is to be careful about misrepresentation because that is always going to implicate rule 8.4, which is the rule that defines professional misconduct. Dishonesty, misrepresentations is something that the jurisdiction in which you practice is not going to tolerate. There is a fine balance here that you have no affirmative duty to inform an imposing party of relevant facts, but at the same time, as in the case with candor to the tribunal, you can't hide the ball in a way that is misrepresenting the underlying facts. Rule 4.2, dealing with unrepresented persons. I think you're aware that if you're dealing with represented persons, you need to go through their lawyer, but oftentimes you need to deal with persons that have not retained counsel and don't have counsel. And in those in instances, always keep this in mind. Quote, "In dealing on behalf of a client with a person who is not represented by counsel, a lawyer shall not state or imply that the lawyer is disinterested." "When the lawyer knows or reasonably should know that the unrepresented person misunderstands the lawyer's role in the matter, the lawyer shall make reasonable efforts to correct the misunderstanding." In short, I think this means you shouldn't mislead others who aren't represented by counsel. Because if you are discovered to have misled, let's say a particular fact witness, that may undermine your case and will further erode your credibility with the court. Rule 4.4, respect for rights of third persons. That provides that, quote, "In representing a client, a lawyer shall not use means that have no substantial purpose other than than to embarrass, delay, or burden a third person, or use methods of obtaining evidence that violate the legal rights of such a person." Now this comes up a fair amount in discovery, where there are third parties that might have information and they might not be represented by counsel, as we were just discussing. Refrain from using tactics to exploit those situations for the benefit of your client. I don't think it's necessary to embarrass, delay, or burden a third person. Information can be obtained through civil means. I always think that it's easier to catch flies with honey than gall. And if you treat a third person with respect, generally you're going to obtain the information or evidence that you need to advocate for your particular client. Moving on to rule 4.4 , "A lawyer who receives a document or electronically stored information relating to the representation of the lawyer's client knows or reasonably should know that the document or electronically stored information was inadvertently sent, shall promptly notify the sender." Notice that word shall, this is the model rule. Not all jurisdictions that have adopted the model rule have adopted that mandatory standard shall. Some are more permissive and use a may standard. So look at your local rules. This comes up all the time, questions about whether you can make use of valuable information that obviously was inadvertently sent or not. So check your local rules, check your local opinions, and check the court systems in which you operate as to what the expectations are in receipt of inadvertently produced information. Now here we move to rule 8.4. This is the vehicle by which lawyers are disciplined for violations of all of the other rules. It's the rule that controls all other rules, so to speak. Misconduct, it is professional misconduct for a lawyer to, A, violate or attempt to violate the rules of professional conduct, knowingly assist or induce another to do so or do so through the acts of another. I bring up A because sometimes lawyers can employ others, such as investigators, to try to obtain evidence. Make sure that what they're doing does not violate the rules because that's gonna boomerang and hurt you. In other words, you can't expect others to be uncivil and do your dirty work without affecting your reputation, and also impairing you in front of the regulatory authority. Model Rule 8.4 , "It is professional misconduct for a lawyer to engage in conduct involving dishonesty, fraud, deceit, or misrepresentation." Now we talked a lot about candor to the tribunal, being honest, straightforward with third parties, those that aren't represented by counsel, et cetera. That is really the cornerstone of our practice, that we cannot be dishonest, fraudulent, deceitful, or engage in misrepresentation. Model rule 8.4 goes on further to define professional misconduct as "For a lawyer to engage in conduct that is prejudicial to the administration of justice." And this is a a very vague phrase, but it's that sort of definition of professional misconduct but it's that sort of definition of professional misconduct that has been used in the last two or three years regarding the behavior of lawyers outside of the courtroom, outside of the practice of law. It was that kind of standard that was used by the South Carolina Supreme Court in that suspension of the lawyer who was saying very negative things about George Floyd and those that were protesting his death. That rule 8.4 can also be applied to things that you normally wouldn't expect. Lawyers to be unparalleled by, such as drunk driving offenses. This comes up a fair amount. Obviously if you're drinking and driving, chances are, you're not practicing law at the time. It's not something that is affecting your client, per se, but if you are arrested, charged, and convicted of a OWI offense, a lot of disciplinary bodies would say that conduct is prejudicial to the administration of justice. Now turning to rule 8.4 , this has been a very controversial amendment to 8.4. It is professional misconduct for a lawyer to, quote, "Engage in conduct that the lawyer knows or reasonably should know is harassment or discrimination on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status, or socioeconomic status in conduct related to the practice of law." Now since this 8.4 was amended Now since this 8.4 was amended and added to the rules about six, seven years ago, a lot of jurisdictions have rejected it, have not adopted it, some have adopted it, and revised portions of it in doing so. But the phrase that has caused the most heartburn is, what is conduct related to the practice of law? There are a lot of first amendment lawyers that would say that this g, this 8.4 would be unfair restriction on a lawyer's free speech and it is unconstitutionally vague as to what someone can say about any of these issues related to race, sex, religion, national origin, ethnicity, et cetera. Because the phrase, related to the practice of law, is so broad. Does that mean what you say regarding these hot button issues at a board event, a happy hour event, even on a CLE like we're doing today, if I say something that's off-putting to someone, is that something I said in conduct related to the practice of law? Arguably yes, but those are the sort of vagueness and first amendment issues or concerns that have been raised regarding 8.4 . Now in our last 15 minutes or so, I wanna turn back to this concept of zealous civility. So the preamble to the rules, it does use this phrase zealous in various ways. "As advocate, a lawyer zealously asserts the client's position, et cetera. Common eight, the preamble. "A lawyer can be a zealous advocate on behalf of a client and at the same time assume that justice is being done." But there's still that underlying tension as to, well, if you're a zealous advocate, how civil need you be? Comment nine to the preamble is that "A lawyer has obligation to zealously protect and pursue a client's legitimate interest within the bounds of the law while maintaining a professional, courteous, and civil attitude toward all persons involved in the legal system." That is a really tough standard to force lawyers to abide by. Now ethics aside, ethical rules that is, courts are certainly expecting the lawyers to be civil, those lawyers that appear before them. And they will not hesitate in sanctioning uncivil behavior, as some of the cases I'm gonna discuss reflect. Now the first case I cite, it's more for the proposition that the court expresses here that's important. Not so much the sanction, it's a District of Nevada court opinion from 2013 in which the court noted that, quote, "Counsel should not engage into any conduct during a deposition that would not be allowed in the presence of a judicial officer." "And that the cause of the difficulty is often blamed on the fact that attorneys are bound to zealously represent their clients." Depositions in particular can be become very contentious. Depositions in particular can be become very contentious. I'm a litigator, so I know that first hand. And you also may know that with a decreasing number of cases that actually go to trial, most are gonna be decided on summary judgment, which means that the depositions are really the key piece of evidence on which your case may fall or rise. And for that reason, lawyers are very cagey about what happens in those depositions. And the fact that the court's not there to oversee it, means that some people think they can get away with murder. I always make sure that the court is available during a deposition that I know is gonna be contentious, in the event that there is obstructionist tactics being employed. But again, it reflects this difficulty between being civil and zealous at the same time. There have been efforts, I should say that, by which zeal or zealous or that whole concept of zealous advocacy is purged. There, I cite an article even from 12 years ago where there has been a trend to remove those words from the model rules. Obviously, they still appear in the preamble. But there are jurisdictions like New York's, those in New York where ethical rules, governing lawyers have made a conscious effort to take zeal out of the equation altogether. A case by which we can learn by negative example is this case I cite from the Central District of California. This is based on improper email communications. First of all, I'm surprised that the lawyer was bold enough to put a lot of this stuff, profanities in emails, because emails really never disappear and they can always be used as exhibits when you're moving for sanctions against disruptive behavior by opposing counsel. Or to show the court that's opposing counsel's not conducting themselves in a good faith manner. In this particular case, and if you go on the court website, you can pull the exhibit with all these truly obnoxious emails, where opposing counsel is referring to their counterpart in the most obnoxious, offensive ways possible. The court was not amused by this, ended up sanctioning that lawyer, about $17,000 in penalties. What I understand as well, the client who was being represented by this very mean-spirited lawyer was appalled by this behavior, didn't realize it was taking place and distanced itself as much as possible. But that incident was incredibly unfortunate for that client because that client's reputational interests were also damaged. I cite here a case from 2018 in Illinois, the lawyer was fine $50,000 and was ordered to undergo anger management training and to participate in an ethics course based on findings of repeated unprofessional, contemptuous, and antagonistic behavior. As the court wrote, quote, "These sanctions are appropriate where a party or their counsel has practiced fraud upon the court, acts in bad faith by delaying or disrupting the litigation, hampers enforcement of a court order, or when a party is responsible for defiling the very temple of justice." The next case I cite is Redwood V. Dobson, and it's a Seventh Circuit case from 2007 in which the court noted that "Mutuality enmity does not excuse a breakdown in decorum." I thought this was an interesting case because the Seventh Circuit actually reprimanded the district court for not maintaining standards of civility and professionalism of the lawyers appearing before it. Next case I cite, this is an old one from 1991, I cite it because it's fairly quaint, the behavior isn't. Where a lawyer refused the questioning lawyer during a deposition to use his phone to call the judge. This was pre-cell phones, and basically threatened bodily violence if he tried to use the phone. Obviously unacceptable behavior, normally this isn't gonna be a problem with the many vehicles we have to the court when disputes are taking place. The next case I cite is from 2008, it's from the Eastern District of Pennsylvania. It was a case in which the witness, again, another deposition case, a case where the witness used the F word, and many variants of the F word about 73 times. But by contrast the word contract, the basis for the claims at issue, was only used 14 times. I cite this case because the lawyer who was defending the deposition was allowing his client to use these F bombs throughout the deposition, and to berate and humiliate the questioning lawyer. and to berate and humiliate the questioning lawyer. And that lawyer didn't do anything, basically allowed his client to go rogue and do whatever he wanted. So just keep that in mind that just because it's not you that's answering the questions, it's your client during a deposition, you need to ensure that your client is being civil in the process. Now I'm gonna turn to a couple of cases where lawyers are rude to the opposite sex. And unfortunately, this is still occurring. I cite a case from the Northern District of California from 2017, where an attorney was sanctioned because during the course of the deposition that lawyer repeatedly insulted the female attorney, objected to numerous questions. And at one point, through his hands in the air, paced and stood in the corner with us back to the deposition and commented on the record that the female energy in the room was conspiring against him. So that kind of misogynistic behavior is not tolerated by the courts. And along those lines, I cite another case from 2016, this Claypole case where council was sanctioned for saying during a deposition, "Don't raise your voice at me, it's not becoming of a woman." And that was being said to opposing counsel. Now a little bit more of a contemporary case, this is 2021 from the California State court, quote, "In awarding attorney fees, the court may consider whether a lawyer's incivility in litigation has affected the litigation costs." "Civility is an ethical component of professionalism, desirable in litigation not only because it is ethically required for its own sake, but also because it is socially advantageous, it lowers the cost of dispute resolution." Now turning back to 8.4 , this is the rule that's been described in various ways as an anti-harassment rule. But as I mentioned, it's been controversial because incivility is also reflective of potential because incivility is also reflective of potential discriminatory or harassing behavior by lawyers. And your jurisdiction is trying it's best to crack down on that kind of discriminatory or harassing behavior. How best to do it is being highly debated. Turning to the comments to the anti-harassment rule itself, I wanted to point out two of the comments. Comment three, "Discrimination and harassment by lawyers in violation of paragraph G undermine confidence in the legal profession and the legal system." "Such discrimination includes harmful verbal or physical conduct that manifests bias or prejudice towards others." "Harassment includes sexual harassment and derogatory or demeaning verbal or physical conduct." Comment four states, "Conduct related to the practice of law," that's ambiguous or arguably vague term of the rule, "Includes representing clients, interacting with witnesses, coworkers, court personnel, lawyers, and others while engaged in the practice of law, operating or managing a law firm or law practice and participating in bar association business or social activities in connection with the practice of the law," and so on. So that's very broad, it's hard to exclude anything really from the life of a lawyer that could be considered somehow related to the practice of law. And it's for that reason that there's been a lot of criticism. Here's a social blogger from 2016 that writes, a court would likely conclude that the ABA model rule 8.4 would unconstitutionally restrict freedom of speech, free exercise of religion, and freedom of association for members of the state bar." "In addition, a court would likely conclude that it was over broad and void for vagueness." Now whether a court would actually determine that is yet to then be fully played out. The Third Circuit is evaluating such a case right now, and eventually it'll probably end up in the US Supreme Court. But the jury's still out at this point as to whether these rules, as adopted by state jurisdiction, are gonna pass constitutional mustering. I've included a couple other slides describing or hypothesizing what would fall within the 8.4 anti-harassment rule. So just keep that in mind because the reach of that rule, that particular rule, is pretty extensive. And uncivil conduct can easily be equated with harassing or discriminatory behavior. with harassing or discriminatory behavior. And in case you want to look at some recent Supreme Court cases regarding free speech and restrictions on speech that might be considered bigoted, et cetera, there's a case that I cite from 2017. Matal or Matal V. Tam, where the Supreme Court writes, "Speech that demeans on the basis of race, ethnicity, gender, religion, age, disability, or any other similar ground is hateful." "But the proudest boast of our free speech jurisprudence is that we protect the freedom to express the thought that we hate." Similarly, in 2018, the US Supreme Court in National Institute of Family and Life Advocates held that government restrictions on lawyers' professional speech are subject to strict scrutiny because they are content based restrictions and, quote, "Such laws are presumptively unconstitutional and may be justified only if the government proves that they are narrowly tailored to serve compelling state interests," period. So undoubtedly, very interesting constitutional questions regarding the restriction of speech by lawyers if that speech is deemed to be discriminatory or harassing in nature. Whether you can restrict speech based on it being uncivil, something of an analogous question, but beyond the scope of this CLE. That concludes today's presentation, Zealous Civility. I do hope you do keep calm and carry on in times of crisis, times that we are facing now and in the future. And I wish you god speed, thank you.

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1h 3m 23s

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