Of the 7 Cs of Legal Ethics, civility can be the most vexing. After all, while there are rules that specifically govern the other six, nothing in the Vermont Rules of Professional Conduct mandates civility.
Still, beginning with 2017’s Don’t Be a Jerk, I argued that civility has been a professional obligation of lawyers since our professional obligations were first reduced to writing. Over the years, and as I’ve spoken around the state to various groups, I’ve learned that most agree. I’ve also learned – especially since the onset of the pandemic – that many Vermont lawyers perceive a lack of civility to be contributing to the stress and anxiety that, left unaddressed, morph into the burnout that threatens to drive people from the profession.
I’ve been candid that I’m not certain of the Professional Responsibility Program’s role in responding to incivility. For instance, how many lawyers must make confidential inquiries of bar counsel about the same rude & offensive lawyer before I contact the lawyer to discuss the behavior and potential enrollment in the Bar Assistance Program?
Even upon reaching the magic number, is diversion appropriate? Some would argue “no,” that nothing short of a formal complaint should invoke the diversion process. Others would argue that diversion is inappropriate for the opposite reason – that it’s time to prosecute the chronically offensive and rude, if for no other reason than to put the bar on notice that donkeys will be dealt with.
My sense is that other states are having similar debates. That said, over the past year, I’ve noticed a slight uptick in the number of jurisdictions that are prosecuting incivility. Rarely do such cases involve isolated instances of inappropriate behavior. Rather, most are in response to a pattern of extreme, persistent, and pernicious conduct that almost everyone would agree merits a disciplinary response.
That might be changing.
Last week, the Legal Profession Blog and the ABA Journal reported that a district subcommittee of the Virginia State Bar Disciplinary Board publicly reprimanded a lawyer for a rude and offensive email. According to the decision, the lawyer represented a client charged with a probation violation. The probation officer miscalculated the client’s sentence. Two days before a hearing, the probation officer sent the lawyer an email acknowledging the mistake and apologizing. The lawyer replied, thanking the probation officer, and suggesting that lawyer did not have a problem with the probation officer.
The lawyer’s conduct at the hearing suggested otherwise. While cross-examining the probation officer, the lawyer became “angry and aggressive.” Then, the day after the hearing, the lawyer sent this email to the probation officer:
- “Don’t f— around with me or one of my clients again. I will always be the best f—ing attorney in the court room. Try and pull that kind of s— again and you will be begging to get off the witness stand.”
The probation officer filed a complaint with the Virginia State Bar. Eventually, the lawyer stipulated to discipline. The subcommittee accepted the stipulation, concluding that the lawyer’s conduct violated three of Virginia’s disciplinary rules. The rules that:
- “a lawyer shall not file a suit, initiate criminal charges, assert a position, conduct a defense, delay a trial, or take other action on behalf of the client when the lawyer knows or when it is obvious that such action would serve merely to harass or maliciously injure another;”
- “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;” and,
- “it is professional misconduct for a lawyer to commit a criminal or deliberately wrongful act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness to practice law.”
Only the second is on the books in Vermont. It’s Rule 4.4 – Respect for Rights of Third Persons.
In addition to the email itself, here’s what caught my attention.
- Nothing in the reprimand suggests that there was any more to the incident than the cross-examination and the email.
- Nothing in the reprimand suggests that the lawyer had previously been disciplined.
Moreover, the lawyer provided the ABA Journal with the following statement:
- “I respect the decision of the bar, and I ultimately agreed to a public reprimand because I did not wish to put my wife and children through anything further. Around the time the email was sent, I was working long hours at my previous firm, coming home to a sick child, running off of little to no sleep, and my wife had recently went through her third miscarriage, on top of other factors that led to my overreaction. Although that is no excuse for the harsh language that was used towards Ms. Woods, I acted completely out of character, and for that, I apologize. That email is not a reflection of me as an attorney or as a person.”
I wonder if perhaps a line has been drawn. Even a single “out of character” incident by a lawyer without a disciplinary history will result in public discipline. If so, lawyers who make conduct like this their standard operating procedure should be on alert.
I’ll conclude with a message for those who interpret my posts on civility as me stating that the rules prohibit advocacy and require lawyers to play nicey-nicey 24/7. I’ve never argued such things.
Rather, and to borrow from the Virginia lawyer’s email, I’ve argued that it’s possible to provide effective, competent, and diligent representation without being “the biggest f—ing donkey in the room.”
As always, let’s be careful out there.
- Judge Peter Hall
- Lawyer’s incivility results in substantially reduced fee award
- Illinois board recommends 3-year suspension for lawyer who sent harassing & abusive emails
- A civility oath for lawyers
- Lawyer admonished for making baseless allegations of incivility against another