Wellness Wednesday: Legal Acts of Kindness

Last night, I posted about a lawyer who engaged in disturbing conduct.  I hope that today’s post serves as an anti-dote of sorts.

2Civility is an arm of the Illinois Supreme Court Commission on Professionalism.  Its focus is to advance “the highest standards of conduct among lawyers to better serve clients and society.”

Last month, 2Civility’s deputy director, Stephanie Vilinski, posted Let’s Talk about Legal Acts of Kindness.  Stephanie’s post ran in conjunction with World Kindness Day.  I’m a bit late in calling attention to Stephanie’s message.

And it’s an important message.

Early on, Stephanie writes:

  • “Attorneys don’t typically talk about legal acts of kindness. So, let’s begin to change that.”

From there, Stephanie shares 5 ideas for change. I’ll list them, but the post itself is worth reading for the additional info that Stephanie provides with each idea.  The ideas:

  • “Be fair and empathetic.”
  • “Agree that it’s okay to disagree, but not to be mean.”
  • “Thank another attorney.”
  • “Take care of yourself.”
  • “Work for improved access to justice.”

Great ideas!

Implicit in the post – and, I think, in all 2Civility’s work – is that wellness and civility aren’t one-offs. Runners don’t increase their speed & distance by running once on a Wednesday.  They get faster & gain endurance by make running part of their routines.

Wellness and civility are no different.  Sure, it’d be nice if, on occasion, you mix-in to your day 1 of  Stephanie’s ideas.  It’d be nicer if you work to make them part of your routine.

Let’s begin.

Image result for kindness

Don’t Be This Guy.

Two topics I’ve covered before are civility & puffery.  As to the former, my thoughts are best summed up by my post Don’t Be A Jerk.  As to the latter, well, puffery in negotiations isn’t necessarily unethical.  Assuming, of course, that the conduct at issue can legitimately be described as “puffery in negotiations.”  More on that in a moment.

Over the past 21 years, I’ve seen some incredibly bad behavior by lawyers.  I’ve never seen anything like the story I’m about to recount, a story covered by Above The Law and Professor Bernabe’s Professional Responsibility Blog.  I’m not the only one. Indeed, the story is one of  behavior so bad as to cause opposing counsel to file a request for relief that ended with:

  • “In a collective 75 years of legal practice, [defense] counsel have never seen
    behavior that even comes close to that of [plaintiffs’ counsel] here. It is unlikely that the Court has either.”

I can hear you now: “Mike, tell us more! What was this behavior?”

Here’s what I’m willing to share.

Water damaged a house.  A contractor hired by the homeowners’ insurance company estimated the damage at $150,000, which is the amount that the insurance company paid on the claim.  The homeowners sued, contending that they incurred $350,000 in covered damages.

Negotiations (and discovery) weren’t pleasant. So unpleasant that, last month, the insurance company’s lawyers asked a federal court to dismiss the complaint or, in the alternative, to disqualify plaintiffs’ attorney.  They also requested a restraining order against plaintiffs’ attorney and a protective order preventing plaintiffs’ attorney from deposing defense witnesses. A memorandum in support of the request opened with:

  • “Plaintiffs’ attorney . . . has embarked on a campaign of abusive and intolerable conduct that began with profanity-laced emails, escalated to discriminatory slurs, and culminated in repeated threats of physical violence against Allstate’s witnesses, Allstate’s attorneys, and their families.”

This is where my job as tour guide ends.  To continue the journey, the insurance lawyers’ memorandum in support of the request is here and a declaration from one of the lawyers is here.  I suspect the odds that you’ve seen conduct as egregious are greater than the odds that I will win next year’s Boston Marathon.

The Above The Law post includes an excerpt of plaintiffs’ attorney’s response:


Umm, that’s not the kind of puffery I blogged about.  Also, the attorney’s apology and promise not to do it again make me think of Costanza: was that wrong?  Perhaps the lawyer will soon join those who learned the hard way that the answer is “yes.”

For now, and per an update on Above The Law, the court ordered the plaintiffs’ attorney to appear and show cause why the insurance company’s requests for relief should not be granted.  The hearing is set for December 16.

Stay tuned.






Incivility Results in Public Sanctions

I’ve blogged often on civility.

In Don’t Be a JerkI argued that effective advocacy and civility aren’t mutually exclusive.

Later, in Advoacy, Decorum, and Grover, I noted (for the first of what would be many times) my opinion that there’s a correlation between civility and wellness.

Most recently, in So Your Client Thinks She’s Funny, I wrote about the opinion in which the Delaware Supreme Court took the opportunity “to remind counsel that they have a responsibility to intercede and not sit idly by as their client engages in abusive deposition misconduct.”

Which brings me to today’s lesson.

Two days ago, Mike Frisch of the Legal Profession Blog posted No Alibis. It’s the story of a disciplinary opinion that the Louisiana Attorney Discipline Board issued on November 4.

The LADB’s opinion is here.  The money paragraph:

  • “Common sense dictates that an attorney must know that his actions will disrupt the court if he, during the course of a hearing or trial, threatens to ‘punch the shit’ out of opposing counsel, even if arguably he was provoked by opposing counsel. To hold otherwise would provide an excuse to any attorney engaging in such behavior by simply saying, in effect, ‘I did it, I know it was wrong, but I didn’t intend to do it'”.

The lawyer received a public reprimand.  Earlier this year, the other lawyer involved did as well.  Per the LADB’s most recent opinion:

“With one exception, discussed below, the facts are not in dispute. On August 20, 2018 Respondent appeared in Orleans Parish Criminal District Court, Section “F”, Judge Robin Pittman, representing a Mr. Ron Edwards on the State’s motion for a bail increase. Mr. Iain Dover, Assistant District Attorney, appeared for the State.

During argument on the State’s motion, Respondent stated to the Judge that the victim, Mr. Edwards’ girlfriend, had on a prior occasion brought false charges against Mr. Edwards and ultimately pled guilty to filing a false police report.

In response to Respondent’s statement about the victim, Mr. Dover stated:

Excuse me, sir. You’re a liar.

Mr. Spears responded: And I will punch the shit out of you if you call me a liar, again.

Mr. Dover doubled down, after being challenged by Respondent to call me a liar again,
stating: Liar.

At this point in the transcript of the August 20, 2018 hearing, the court reporter wrote:

Mr. Spears: (Raises fist up to Mr. Dover)
Mr. Dover: (Raises arm up in a blocking motion)

Finally, Respondent stated: …but perhaps we can settle this outside the courtroom.”

One might argue that, with each lawyer receiving a public reprimand, this one ended in a draw.  I’d disagree.  To me, when incivility is met with incivility, nobody wins.  Not the lawyers, their clients, or the profession.

Don't Be a Jerk

Be Kind to a Lawyer Today

Today is International Be Kind to Lawyers Day.

I’ve done some research on the day’s origins.  Meaning, I read this and this.  While  each suggests we might debate the motivation behind the creation, #bekindtolawyersday is legit trending on social media.  So, it must be a real day.

Who is most likely to deal with a lawyer today?  Other lawyers.  Thus, to borrow a quote from JFK, here’s my request of my lawyer-readers:

  • Ask not who will be kind to you today.  Ask to whom you will be kind.

I’ve often mentioned that the Rules of Professional Conduct don’t require lawyers to be nice.

Still, why not try?

Indeed, as I mentioned here, I recently did a CLE on attorney wellness that segued into a discussion on whether a lack of civility within the profession contributes to the profession’s lack of wellness.

The VBA has adopted Guidelines for Professional Courtesy.  The last is my favorite:

  • “Effective advocacy does not require antagonistic or obnoxious behavior. Lawyers should adhere to the higher standard of conduct which judges, fellow attorneys, clients, and the public may rightfully expect.”

Today you will have many chances to be kind to another lawyer.

Take advantage of them all.

(thank you @StateBarofGA for the image)

Related posts:

Don’t tell the opposing party to commit suicide.

Not too long ago, I’d often use the Was That Wrong? trope to highlight outrageous attorney misconduct.

This story gets its own post.

Yesterday, the New York Supreme Court, Appellate Division, First Judicial Department suspended a lawyer’s license for 4 months.  The lawyer’s violations included telling an unrepresented opposing litigant “you’re one of those people in the world that really should just kill themselves because you’re worthless.” Above The Law, the New York Law Journal, and the New York Post reported the decision, which is here.

The lawyer’s misconduct involved two different matters.  In the first, and per the decision, the lawyer entered an arbitration, took pictures of a witness who was testifying, and said to the witness:

  • “This will be in the newspaper when I put this in there after we kick your asses. You should be ashamed of yourselves for kicking people out of a building and you have to live with yourself.”

The second matter?  Well, I’m not sure you’d believe me.  So, I’ll quote from the decision:

“In the second matter, respondent’s firm represented the owner of several residential buildings. A resident of one of these buildings, James Dawson, allegedly made postings to a website accusing the owner of overcharging tenants. Respondent sent a letter to Dawson dated September 7, 2016, accusing him of creating a false and defamatory website and demanding that he take it down or face a lawsuit. Respondent received no response to this letter.

On September 13, 2016, respondent sent Dawson a text message which read, in relevant part:

‘We are filing a lawsuit against you for millions of dollars of damages you have caused as a result of your defamatory website. . . . We are also in contact with the location [sic] police station and we have a copy of the complaint your ex-girlfriend filed against you and we will be using all means necessary to protect our clients.’

Later on the same day, respondent telephoned Dawson, who recorded the conversation. Respondent told Dawson, inter alia, that Dawson was ‘not that bright,’ and that, if he did not take the website down, he would ‘be bankrupt soon.’ Respondent told Dawson that he ‘should commit suicide. . . . [y]ou’re one of those people in the world that really should just kill themselves because you’re worthless.’ While still on the phone with Dawson, respondent said to a person in his office about Dawson ‘start the lawsuit. . . . I need him arrested. . . . I gotta get this guy. He’s gotta be arrested.’ Respondent told Dawson that respondent’s employee who would be ‘running the investigation’ of Dawson ‘used to run the district attorney’s office,’ and claimed that respondent’s office was ‘in contact’ with the District Attorney’s office. He told Dawson, ‘[y]ou have no idea what you stepped into. . . . Welcome to my world. Now you’re my bitch. . . . you’re gonna be paying for this heavily for the rest of your life.'”

In case you still don’t believe it, the recording of the conversation is here.

This story reminds me of a conversation that broke out during a CLE I did at the VBA Mid-Year Meeting; a conversation that prompted me to suggest: be nice to someone today.  This is but another reminder.

Because the conduct?  Yes, that was wrong.

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#1: W.I.N. Your 3 Feet of Influence

This week, I’m counting down the blog posts that were the most-read in 2017.  So far,

Which leaves only 1 more.


I posted the year’s most-read blog in July.  Ever since, it has remained popular, and about the only post that people mention to me in person. Without further adieu, the post that readers read more than any other in 2017 was a post on civility: W.I.N. Your 3 Feet of Influence.  

Remember: you have a chance to “WIN” every interaction you have.  At work, at home, everywhere you go.  The more interactions you “WIN,” the better we’ll all be.

Thank you for reading this year.   I wish you a peaceful 2018!

And don’t forget that tomorrow is Friday.   Which means there’s one final #fiveforfriday quiz in 2017.  Get in the game!



W.I.N. Your 3 Feet of Influence

When I was coaching, I used the term “W.I.N.” with my teams.  It stands for “what’s important now?”  Here’s what it means.

In sports, as in life, we can only control what we can control.

Basketball players can’t control a ref’s calls.  But they can control how they react to bad calls.  A player can’t control (or change) the fact that he just made a bad play.  But he can control how he approaches the next play.  A player can’t control whether a teammate works hard in drills.  But she can control her own effort.

What’s Important Now is controlling whatever you can control . . . right now.  In basketball, that means, playing the next play without worrying about the last or looking forward to one later in the game.

Bad call goes against you?  Yelling at the ref is not what’s important now.  What’s important now?  The next play.  Make a bad turnover?  Hanging your head is not what’s important now.  What’s important now? Sprinting back on defense to stop the opponent who stole your pass.

You get the picture.

Last weekend, my dad’s wife shared Sharon Salzburg’s Your Three Feet of Influence with me.  I loved it.  Here’s my favorite quote from the blog post:

It reminded me of W.I.N?  None of us can control how others act or treat us.  But every single one of us can control our response to how others act and treat us.  And isn’t that almost always what’s important now?

As I thought about it, I thought back to my post President’s Day & Civility.  It’s a post in which I referred to Linda Klein’s President’s Message in the February edition of the ABA Journal:  One Word: Civility.  Please read it.

President Klein wrote:

  • “As leaders in society, lawyers must ensure that civility once again becomes a quality that defines us. We need to set the tone for constructive communication and rational decision-making. It starts with us and every individual committing to a more civil manner, insisting that civility be a part of meetings and interactions. Indeed, we need to hold ourselves and our leaders to a higher standard.”

What’s Important Now?  That in the next interaction I have with someone, I’m going to commit to a civil, honest, respectful communication – – regardless of how that person treats me.  I can’t control how that person acts, but I can control how I act.

Opposing counsel acts like a jerk on the phone, sends a rude e-mail, or says bad things about you in court?  You can’t control that.  But you can absolutely control how you respond.

Finally, I’m especially struck by the fact that I’m writing this as I proctor the bar exam. Civility is as important a skill as is a basic knowledge of evidence, contracts, or civil procedure.  As much as I hope that each examinee passes the exam, I’m as hopeful that, upon admission, each practices law by continually striving to W.I.N. his or her 3 feet of influence.  It would make the profession better and serve as an example to all.

Whatever you do next, try to W.I.N. your 3-feet of influence.  It’ll add up.


Think Before You Strike

This post is about a federal court order in response to a Motion to Strike a summary judgment motion.  The motion to strike argued that the SJ motion was filed 4 minutes too late.

The order issued in June 2003, but I only learned about this weekend on Twitter.

The order speaks for itself, and is here.

Think before you (move to) strike.

Thank you Keith Lee (@associatesmind) for the tip.  I’m especially grateful in that the tip helped me find Keith’s fantastic website.

Wait What

Presidents’ Day & Civility



On Presidents’ Day, I thought I’d share a message from Linda Klein.  Attorney Klein is the current President of the American Bar Association.  Her words are far better than any summary I could deliver.  So, please read Attorney Klein’s President’s Message from the February edition of the ABA Journal.

President Klein’s message reminds me of  Comment 4 to Rule 3.5 of the Rules of Professional Conduct:

  • “The advocate’s function is to present evidence and argument so that the cause may be decided according to law. Refraining from abusive or obstreperous conduct is a corollary of the advocate’s right to speak on behalf of litigants.  A lawyer may stand firm against abuse by a judge but should avoid reciprocation; the judge’s default is no justification for similar dereliction by an advocate. An advocate can present the cause, protect the record for subsequent review and preserve professional integrity by patient firmness no less effectively than by belligerence or theatrics.”

Finally, as a reminder, the Vermont Bar Association adopted Guidelines of Professional Courtesy in 1989.  Here they are:

Guidelines of Professional Courtesy
  • In fulfilling his or her primary duty to the client, a lawyer must be ever conscious of the broader duty to the legal system.


  •  A lawyer should act with candor, diligence and utmost respect.
  • A lawyer should act with courtesy and cooperation, which are necessary for the efficient administration of our system of laws.
  • A lawyer should act with personal dignity and professional integrity.
  • Lawyers should treat each other, their clients, the opposing parties, the courts, and members of the public with courtesy and civility and conduct themselves in a professional manner at all times.
  • A client has no right to demand that counsel abuse the opposite party or indulge in offensive conduct. A lawyer shall always treat adverse witnesses and parties with fairness and due consideration.
  • In adversary proceedings, clients are litigants and though ill feelings may exist between clients, such ill feelings should not influence a lawyer’s conduct, attitude, or demeanortowards opposing lawyers.
  • A lawyer should not harass opposing counsel or counsel’s clients.
  • Lawyers should be punctual in communications with others and in honoring scheduled appearances. Neglect and tardiness are demeaning to fellow lawyers and to the legal system.
  • If a fellow attorney makes a just request for cooperation, or seeks scheduling accommodation, a lawyer shall not arbitrarily or unreasonably withhold consent.
  • Effective advocacy does not require antagonistic or obnoxious behavior. Lawyers should adhere to the higher standard of conduct which judges, fellow attorneys, clients, and the public may rightfully expect.