I’m back. I hope it sticks this time.
Incivility is on the rise. I’m not referring to the political arena. Nor am I referring to some of the more heated rivalries that playoff baseball and basketball have brought of late. Sadly, I’m referring to within the practice of law.
Yes folks, right here in Vermont.
We’ve been talking about incivility as a contributor to lawyer stress for a few years. However, lately, I’ve noticed a marked increase in the number of calls I receive from lawyers asking for guidance on how to deal with another lawyer’s rude and obnoxious behavior. In addition, I’ve noted a similar increase while screening disciplinary complaints. I’ve reviewed emails and letters that no lawyer would be proud to have made public.
I understand that times are hard. The pandemic, social unrest, and the election cycle have combined to increase stress throughout society. I’m well-aware that legal profession isn’t immune from what’s happening to everyone else. But the times aren’t license to be jerks.
In this article on election stress disorder, a therapist notes “[a]nxiety makes you feel powerless, and resentment and anger make you feel temporarily more empowered.” As lawyers dealing with other lawyers, we must fight the urge. The fleeting reprieve that follows the obnoxious email isn’t worth it.
A few years ago, Chris Ekman, Bill Gagnon, and I presented a CLE for the VBA. Chris and Bill do a lot of legal malpractice defense. I can’t recall our specific topic, but it was something like “malpractice & ethics: traps for the unwary.” Chris and Bill shared a tip that stuck with me: treat every email that you send as if it will be Exhibit A in the trial of the malpractice claim that is brought against you.
Here’s how I’ve appropriated it as my own: treat every email as one that will be attached to the disciplinary complaint that is filed against you.
On both this blog and at CLEs, I’ve been clear that I don’t know when incivility reaches the point that intervention by the Professional Responsibility Program is warranted. At some point, it does. When it reaches that point, what then?
When lawyers call me in exasperation over another lawyer’s behavior, I am more than willing to call the attorney and ask them to tone it down. More recently, I’ve decided that when multiple lawyers contact me about the same attorney, I’ll consider whether to refer that attorney to one of our assistance panels for a level of intervention that’s more formal than a phone call from me asking the lawyer to “cut it out.”
An assistance panel is like “diversion.” The panel provides a forum for the non-disciplinary resolution of complaints. That is, no sanction issues against the lawyer’s license.
Still, it’s serious. It’s an appearance in front of peers/colleagues who will have in front of them the email – or emails – that, by then, the temporary empowerment you felt upon hitting “send” will no longer be worth it.
Believe it or not, you might thank me for asking an assistance panel to meet with you to discuss your incivility. Why? Because it’s better than the formal sanction that might result if your conduct goes unchecked.
Today, the ABA Journal reported the story of an attorney whose pattern of rude and uncivil behavior caused the Ohio Supreme Court to suspend the lawyer’s license for 2 years. The court’s opinion is here.
Is it an extreme example? Yes. But, as with every pattern of misconduct, it started with a single instance.
Don’t be that attorney. If you begin to resemble that attorney, I’m more than willing to help you keep from becoming that attorney.
In closing, you cannot control how others treat you. But you can always control your reaction to how others treat you.