Civility is one of my 7 Cs of Legal Ethics. I regularly address it in blog posts and CLE seminars, making clear my opinion that incivility contributes to the stress and anxiety endemic in the legal profession. The topic was central to our discussion on emotional intelligence during Well-Being Week in Law. For more on the discussion, here are the preview and recap videos.
I’ve often noted that several judges have indicated that lawyers who think they’re scoring points by filing motions replete with name-calling and accusations against opposing counsel are misguided. Related, during our discussion on emotional intelligence, a consensus emerged that practicing lawyers believe that judges should be more proactive in calling out (and squelching) incivility. The consensus echoes a refrain that has emerged from nearly every seminar I’ve done on civility: we need to do something about it.
I post today to share two updates. This part 1 and should serve to remind lawyers to think twice before accusing opposing counsel of being “unhinged.”
Earlier this month, a federal judge admonished a lawyer and law firm for making baseless allegations of incivility against opposing counsel. The opinion is here. As reported by the ABA Journal, the opinion issued in a lawsuit that “alleged that military personnel providing security for Exxon facilities in Indonesia sexually assaulted, kidnapped and tortured nearby residents.”
Following the deposition of an ExxonMobil general counsel, defense counsel moved for sanctions against plaintiffs’ counsel. Upon reviewing the motion, the court ordered defense counsel to show cause why they shouldn’t be sanctioned.
Because the court determined that several of defense counsel’s allegations against plaintiffs’ counsel had no support in the record. Specifically, the allegations that plaintiffs’ counsel:
- had become “agitated and combative;”
- “was indignant and adversarial;”
- “became unhinged . . . and repeatedly attacked and baselessly threatened to
seek sanctions against the witness and counsel;” and,
- “demonstrated a general lack of respect towards a professional adversary.”
Responding to the show cause order, defense counsel apologized and acknowledged contributing to a “breakdown of civility that occurred during and after [the] unfortunate deposition.” Nevertheless, after examining the record, the court concluded that plaintiffs’ counsel hadn’t acted as described by defense counsel and, in fact, hadn’t acted inappropriately at all. Disturbed by defense counsel’s failure to watch the video of the deposition before filing the motion, the court concluded
- “Both should have known better than to impugn another attorney’s character without reviewing the entire record. And neither should have made those accusations without evidentiary support. The court cannot allow such misconduct to occur without at least rebuking counsel.”
Now, maybe this has less to do with civility than it does with filing baseless motions. Still, name-calling for name-calling’s sake can – and should – result in a sanction.
I’ll post part II later this afternoon.