CHIEF JUDGE, STATE BAR PITCH CIVILITY TO NEW YORK LAWYERS (5-21-19)
One can disagree without being disagreeable. This oft-heard observation is certainly worth underscoring in today’s contentious times. Nowhere, however, has its adherence been more consistently challenging than in the legal profession. The reason is obvious. Where disputes abound, so, too, do opportunities to be not only disagreeable, but downright obnoxious. And for lawyers and judges, disputes pretty much abound every hour of every workday.
In 1997, the New York court system responded to heightened concerns about unseemly behavior within the legal profession by adopting the Standards of Civility. An appendix to what is today known as the Rules of Professional Conduct, its preamble describes them as “a set of guidelines intended to encourage lawyers, judges and court personnel to observe principles of civility and decorum, and to confirm the legal profession’s rightful status as an honorable and respected profession where courtesy and civility are observed as a matter of course”.
The Standards of Civility are back in the news today following approval last month of an updated, modernized version of them by the New York State Bar Association. The initiative was prompted in part by the technological advances of the digital age which, in addition to significantly affecting the nuts and bolts of law practice, have also increased the avenues for rancor, discord and mischief. As just one example, several lawyers across the country, and a few judges, too, have found themselves in hot water for inappropriate social media postings regarding people and matters with which they were involved professionally.
Janet DiFiore, Chief Judge of the New York Court of Appeals, hailed the state’s updated guidelines, asserting that “Civility and professionalism increase the effectiveness of the justice system and enhance the public’s trust in the legal profession”. While that’s certainly true, some clients and potential clients are attracted to lawyers who display the overly aggressive, boorish behavior that the Standards are designed to mitigate. Various lawyer advertising has been geared to exploit that precise mentality, with some attorneys even going so far as to characterize themselves as “mean” or “pit bulls”.
While lawyers have a professional responsibility to advocate zealously and faithfully on behalf of their clients, those who are inappropriately antagonistic, obnoxious or “mean” may actually be undermining their clients’ interests and costing them unnecessary expense as well. To illustrate this point, consider a contested divorce action with significant issues involving child custody and visitation, spousal and child support, and the equitable distribution of marital property. After service of the summons and complaint, the defendant’s attorney calls the plaintiff’s attorney seeking an extension of time to submit an answer. Such requests are common in all kinds of litigation and, absent extraordinary circumstances, should be freely accomodated.
If the plaintiff’s attorney unreasonably refuses to grant the request, he or she will have set the stage for bitterness and acrimony throughout the course of the proceeding. As a consequence, matters such as the scheduling of a deposition or the exchange of discoverable documents will likely wind up being decided by the court on motion papers – with substantial expense to the litigants – instead of by a simple phone call.
Warring attorneys can even turn something as simple as making the children available for an interview with their law guardian into a big deal with a big price tag for their clients. In one case over which I presided in the Family Court, the hostility between the attorneys for the respective parties was such that they wound up having a fist fight in the waiting room. And with the children watching!
Lawyers with lousy attitudes and perennial chips on their shoulders hardly endear themselves to judges, law assistants, or court personnel. Their reputations as pains in the butt – or worse – spread quickly, particularly in smaller venues like Staten Island. None of this furthers their clients’ interests.
Despite the adoption of the Standards of Civility 22 years ago, there is a sense among veteran judges and lawyers with whom I’ve spoken that things have actually gotten worse within the profession. Newer lawyers tend to be unduly combative and antagonistic, they say, making the practice of law more onerous and less personally satisfying. Several of these long-time judges and lawyers have said emphatically that they wouldn’t want their children or grandchildren to pursue a career in law.
Whether the publicity surrounding release of the updated guidelines will change anything remains to be seen. Perhaps, when all is said and done, the best hope for greater civility among lawyers rests on clients understanding that their interests are furthered by it.
(A new column appears here every Tuesday. Comments relating to the column are welcome and should be sent to firstname.lastname@example.org)
Daniel Leddy's law column has been published by the Staten Island Advance for over 25 years, appearing every Tuesday on the editorial page. His most recent column appears below. An archive of his columns can be found here
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