Last week, a reader sent me this Report and Recommendation in which a hearing board of the Illinois Attorney Registration Disciplinary Commission recommended that a lawyer be suspended from practicing for 3 years. The lawyer had been charged with directing “numerous insulting and threatening communications towards other attorneys.”
I’m blogging about the report for two reasons.
- To reiterate my message that there is a line that, once crossed, incivility morphs to a violation of the Rules of Professional Conduct.
- To set up a future blog in which I will comment on aspects of the board’s legal analysis that interest me and that lend the Report and Recommendation far more than just shock value.
Yes, to me, the facts of the Illinois case are shocking. I won’t do them justice and urge you to read them for yourselves. Among other things, the lawyer sent emails in which the lawyer:
- threatened other lawyers with baseless civil, criminal, and disciplinary charges, including, with one, a threat to “flay you on a public pillory for all to see so as to discourage scum like yourself” if the other lawyer did not “resign and plea to the FBI.”
- referred to other lawyers as “scum”, members of “scum bag firms,” “scammers”, “crooks,” “active criminal,” “counsel/perp,” and “co-perp.”
- addressed other lawyers by altered versions of their names. For instance, referring to an Attorney Schmeltz as “Schmaltz” and “Schmuchz” and referring to an Attorney Sanfelippo as “Sanscamfelippo” and “Sanliarippo.”
Believe it or not, I could go on and on.
Most readers know my feelings on what I perceive to be a rise in incivility among lawyers. I don’t like it and I believe that it negatively affects attorney well-being. But I’ve struggled to define whether and when it’s appropriate for the Professional Responsibility Program to get involved. More specifically, while I hope that lawyers will take heed of the resolution Don’t be a Jerk, what rule does extreme incivility violate?
The Illinois case has the answer: Rule 4.4(a).
Vermont’s version of the rule is entitled “RESPECT FOR RIGHTS OF THIRD PERSONS.” Paragraph (a) states:
- “In representing a client, a lawyer shall not use means that have no substantial purpose other than to embarrass, delay, or burden a third person, or use methods of obtaining evidence that violate the legal rights of such a person.”
The Illinois hearing board concluded that the lawyer violated the rule by using numerous opportunities to communicate professionally with others “as an excuse to bombard [other lawyers] with insults and threats.” The board also concluded that the mere fact that the emails were sent in connection with a pending matter “does not mean that they had a valid purpose.” In short, the Report and Recommendation is clear: there is a line where, once crossed, incivility becomes unethical.
In Vermont, it’s the conduct that falls just short of the line that flummoxes me. I’ve wondered whether the Bar Assistance Program’s non-disciplinary dispute process is an appropriate forum to address a lawyer who repeatedly approaches the line – perhaps keeping the lawyer from continuing down the path that the Illinois lawyer followed.
I know that some of you think that I’m espousing a sort of speech code. I’m not. I’ve not once argued that the Rules of Professional Conduct should be applied to prohibit legitimate advocacy. Nor have I ever argued that the practice of law is nothing but rainbows and unicorns with nary a moment in which even a raised voice is appropriate.
What I’ve argued is this.
- The Rules of Professional Conduct are the floor. There’s no reason that we can’t aspire for better. That’s the point I tried to make in Don’t be a Jerk.
- Rule 4.4(a) has been on the books since 1999 and it has always prohibited conduct that has no substantial purpose other than to embarrass, delay or burden a third person. Vitriolic threats, harassing conduct, and abusive name-calling violate the rule.
Vermont lawyers continue to share that abusive conduct from opposing counsel affects their health to the extent that they are considering whether to leave the profession.
As such, I will continue to share posts like this one.