Professionalism and the Need for Civil Behavior

Professionalism and the Need for Civil Behavior

"The legal profession is in crisis.  Public perception of the profession has plummeted from once being considered a highly respected vocation to one often characterized by an increasing lack of credibility, declining ethics, and outright greed." Krista Riddick Rogers, PROMOTING A PARADIGM OF COLLABORATION IN AN ADVERSARIAL LEGAL SYSTEM: AN INTEGRATED PROBLEM SOLVING PERSPECTIVE FOR SHIFTING PREVAILING ATTITUDES FROM COMPETITION TO COOPERATION WITHIN THE LEGAL PROFESSION, 6 Barry L. Rev. 137 (2006).

Last June, Jack Camp, the Chief United States District Court Judge for the Northern District of Georgia, spoke before the 21st BIENNIAL ADMIRALTY LAW INSTITUTE, and stated:
 
The academic and legal communities have . . . been prolific in publishing articles addressing legal professionalism. Although professionalism is difficult to define, the perceived loss of professionalism is generating much sound and fury. The consensus is that, whatever the cause, the result has been a significant and harmful change in the practice of law.
 
Jack T. Camp, SYMPOSIUM: 21st BIENNIAL ADMIRALTY LAW INSTITUTE: Article: Thoughts on Professionalism in the Twenty-First Century, 81 Tul. L. Rev. 1377 (June 2007).
 
After at least 15 years of lament over the presence of Rambo lawyer tactics, Rambo and his progency--discovery abuse, zealous advocacy, zeal, zealotry ("the 'z' words"), incivility, frivolous lawsuits and other forms of unprofessional or unethical conduct--are very much in our midst; n5 and, by example, continue to harm the legal profession and denigrate its once positive image to the public. In the apt words of Walt Kelly's Pogo, "We have met the enemy and it is us." Symptomatic of the public's attitude of the '90s toward lawyers, a legal scholar has written, "The legal profession is dead or dying. It is rotting away into an occupation.”
 
Allen K. Harris, THE PROFESSIONALISM CRISIS - THE 'Z' WORDS AND OTHER RAMBO TACTICS: THE CONFERENCE OF CHIEF JUSTICES' SOLUTION, 12 ABA Prof. Law. 1 (Winter 2001).

Many reasons are given for the decline in civility by attorneys. However, whatever the cause, it is clear that judges do not appreciate attorneys who are less than civil to litigants, witnesses, and others involved in the legal process.  The zealous representation of a client that devolves into "Rambo" lawyering represents the worst of the industry, harms our reputation, and does not work.
 
Being the best attorney for your client does not require harassing opposing counsel or the opposing client. It is not necessary to fill a deposition with questions on extraneous and irrelevant matter for the sole purpose of embarrassing the deponent. It is wrong to ask questions that challenge a witness's credibility, without a foundation, using innuendo or inference to mislead a jury. A trial is a search for justice and fairness, not a war. "Litigation is a means of dispute resolution that has been carefully crafted to be non-warlike. Whatever its resemblance to war -- to the limited extent that it produces winners and losers -- it is nonsense to assume it requires the use of martial arts." Robert N. Sayler, Rambo Litigation: Why Hardball Tactics Don't Work, 74 A.B.A.J. 78, Mar.1, 1988.
 
The purpose of a case before a court is to resolve differences, usually in monetary terms. A court is not the proper place to exact revenge. Whatever emotional differences exist between the parties, these emotions should not be exacerbated by acts and attitudes of the attorneys. Ratcheting up the temperature between the parties makes it much more difficult for the parties to reach an agreement. It may be better for the attorney's pocket to continue a case through a trial and an appeal, but it degrades the industry and inflames judges. 
 
Moreover, lawyer dissatisfaction is steadily rising, contributing to several severe mental health dysfunctions including depression, anxiety, hostility, and paranoia, thus resulting in higher than average incidences of alcoholism, drug abuse, divorce, and even suicide within the lawyer population.
 
PROMOTING A PARADIGM OF COLLABORATION IN AN ADVERSARIAL LEGAL SYSTEM: AN INTEGRATED PROBLEM SOLVING PERSPECTIVE FOR SHIFTING PREVAILING ATTITUDES FROM COMPETITION TO COOPERATION WITHIN THE LEGAL PROFESSION, id., supra.
 
Sanctions
 
Trial courts that perceive that one or both attorneys are engaging in tactics more designed to inflame than to bring justice are not averse to imposing sanctions. Appellate courts appear a bit more reluctant, looking for either bad faith or objective unreasonableness. Whether or not the sanctions imposed by a trial court are affirmed by an appellate court, the improper behavior is made obvious to the public and serves to stop the perceived abuse. Judges involved in the litigation may publicly rebuke attorneys in published opinions. One example is a statement in a case by United States Magistrate Judge Jeffrey Cole:
 
What Chief Judge Easterbrook recently said in another case seems to apply here: "This is a grudge match." Redwood v. Dobson, 476 F.3d 462 (7th Cir. 2007). The parties are apparently not strangers to litigation among themselves and it appears there is other litigation involving them or between them in the Circuit Court of Cook County. The parties are free to entertain whatever animus they possess towards each other. Judges have no business in trying to regulate thought and emotion. But they do have an obligation to regulate how parties deal with each other and with ensuring that they comply with the discovery provisions of the Federal Rules of Civil Procedure. The parties are requested to conduct themselves in all further discovery efforts in the cooperative and forthright manner required by those rules.

Flentye v. Kathrein, 2007 U.S. Dist. LEXIS 74260, 8-9 (N.D. Ill. Oct. 2, 2007). In the Redwood v. Dobson case, the attorneys were censured for conduct unbecoming a member of the bar, based on actions during a deposition. In that case, Judge Easterbrook stated that mutual enmity did not excuse the lack of civility and professionalism.  
 
State and federal rules of professional conduct condemn the use of frivolous filings and behavior unbecoming to the profession. Federal Rule of Civil Procedure 11 requires that attorneys sign all pleadings and motions, prohibit the filing of pleadings and motions that are frivolous or filed for an improper purpose, and allows courts, on their own motion, to bring sanctions against attorneys who violate the rule. Rule 37 permits a court to impose sanctions for failing to disclose or cooperate in discovery. 
 
It is not unusual for a court to impose sanctions in the way of costs and attorney fees for the filing of frivolous cases. However, more serious sanctions may be imposed. Attorneys risk the loss of their license to practice law by engaging in activities that violate the rules and canons of behavior. Attorneys have been suspended from practicing law for up to three years based on discovery abuse and frivolous filings.
 
Success through Collaboration
 
One of the most successful attorneys and sports' agents, Ronald S. Shapiro, wrote THE POWER OF NICE: How to Negotiate So Everyone Wins – Especially You!(Revised Edition, 2001), published by John Wiley & Sons, Inc. Mr. Shapiro argued that an adversarial attitude was not necessary to be successful in representing clients in negotiations. The same is true in litigation.
 
Using a more collaborative approach enables the parties to see both sides of any dispute and fosters a desire to end the enmity between them to reach a fair conclusion. Both the judges and the public will appreciate the attempt to resolve differences without starting a war, and the legal community will benefit by the change in perception.