I consider civility one of the 7 Cs of Professional Responsibility & Legal Ethics. In my opinion, conducting one’s practice in a civil manner is not inconsistent with the obligations imposed by the Rules of Professional Conduct.
A seminar at the VBA’s 2019 Midyear Meeting made me realize the connection between civility & wellness. In this blog posted the morning after the seminar, I wrote:
Indeed, nothing in the rules is incompatible with civility. As a comment to Rule 1.3 says:
“[t]he lawyer’s duty to act with reasonable diligence does not require the use of offensive tactics or preclude the treating of all persons involved with courtesy and respect.”
Courtesy and respect. We need more of each in the air.
For the duration of public health crisis, we need even more of each in the air.
My first post related to COVID-19 was on March 13. In it, I urged “all lawyers to be accommodating when considering requests from opposing counsel that are related to COVID-19.” I’m by far from the only one, with bar associations and courts making the same request. The good news? I’ve not heard any Vermont stories like the two I’m about to share. Let’s hope it remains that way.
Each story comes from the same federal court in South Florida. The ABA Journal covered both.
In the first, also reported by Law360 , a federal magistrate had to intervene in a discovery dispute. Here’s part of the magistrate’s order.
- “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. It is painfully obvious that counsel for both sides failed to keep their comparatively unimportant dispute in perspective. Would the world end if the corporate deposition did not occur next week? Obviously not.”
The rest of the order doesn’t reflect any better on the lawyer’s involved.
A few days later, the same magistrate issued an order in a different case. I’m not a fan of block quotes, but this order is better read than described. As reproduced by the SDFLA Blog:
“Given the global COVID-19 pandemic, it is hardly surprising that Plaintiff filed a motion to extend the mediation and discovery deadlines and all related deadlines and to reschedule the special set trial date.
Plaintiff’s motion represents that Defendant objected to the request. That’s right. Defendant objected to what appears to be a realistic and common sense motion to reschedule the trial and other deadlines. I had to read the certification twice in order to make sure that I was reading it correctly.
If the motion is correct, then Defendant wants to push forward with the existing trial date and all trial-related deadlines even though no one has any idea when the Court will be able to safely resume jury trials (or when it will be safe to travel by air, to return to work or to get closer than ten feet to anyone).
Rather than guess at defense counsel’s motivation, the Undersigned requires defense counsel to by March 26, 2020 file a double-spaced memorandum explaining (1) whether he did, in fact, oppose the motion to reschedule the trial and enlarge trial-related deadlines and the mediation deadline, and (2) all the reasons justifying his opposition (assuming that he did actually advise Plaintiff’s counsel that he opposes the motion).
If defense counsel opposed the motion, then he is best advised to provide a comprehensive and rational explanation. Before filing this response, though, defense counsel may want to brush up on the concepts of karma, goodwill, grace, compassion, equity, charity, flexibility, respect, spirituality, selflessness, kindness, public spirit, social conscience, and empathy.
No reply absent further Court Order. Signed by Magistrate Judge Jonathan Goodman on 3/25/2020.”
Again, I’ve not heard any Vermont stories on par with these. Still, I blog as a reminder that there’s a line between acting reasonably to provide clients with competent & diligent representation and using the public health crisis to gain an advantage.
Where is that line?
I don’t know.
But, in searching for it, we could fare worse than to be guided by Judge Goodman’s words. Whatever we do, let’s not forget “the concepts of karma, goodwill, grace, compassion, equity, charity, flexibility, respect, spirituality, selflessness, kindness, public spirit, social conscience, and empathy.”
That’s civility. And civility is part of wellness.
- Professional Responsibility & COVID-19
- Wellness resources for coping with COVID-19
- Ripeness. And what not to file during the pandemic
4 thoughts on “Civility Matters. Especially now.”
[…] Civility Matters. Especially Now. […]
[…] What I had originally envisioned for a post for today was going to be something that sort of collected a variety of instances of attorneys being jerks and emphasizing how incongruous such behavior is with our current reality, but Michael Kennedy, the chief disciplinary counsel for Vermont, has already done that better than I might have, so here’s a link to his post on that subject. […]
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To paraphrase Oscar Hammerstein there is a type of lawyer “who can’t say no” – to their client. For this individual, if the client wants to oppose something, the lawyer’s job is to oppose it, even if there is no good faith argument to oppose it.
[…] blogged about civility & the pandemic here. It includes two examples of how NOT to act during the […]
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