Civility

Naked lawyer rushes stage at Phish concert, kicks off series of events that result in another lawyer being sanctioned.

Michael Leave a comment

Have you ever gone to a concert and ended up naked on the stage?

Have you ever been sanctioned for writing a demand letter for a client who claimed to have been injured by a naked lawyer who rushed the stage during a concert?

Well then do I have the blog post for you!

But first . . . .

As regular readers know, “civility” is one of my 7 Cs of Legal Ethics. I’ve long used this blog to raise concerns about incivility within the legal profession. During his tenure as President of the Vermont Bar Association, Andrew Manitsky joined me, making civility the theme of his presidency.  Our presentations on the topic often included asking “who should respond to extreme incivility and what tool do they have to do so?” In addition, we regularly alerted the Vermont bar that, around the country, more and more courts and disciplinary bodies are responding to incivility by invoking the disciplinary rule that prohibits lawyers from using means that have no substantial purpose other than to embarrass or burden a third person.

As of last week, we can add another invocation to the list.  It involves a Colorado lawyer who was sanctioned as a result of a demand letter she sent on behalf of a client to another lawyer who, while naked, rushed the stage at a Phish concert, allegedly injuring the client along the way.

If you hadn’t already learned of the story, yes, you read the last sentence correctly.

As reported by the ABA Journal, the lawyer who wrote the letter entered into this Stipulation  for Discipline with Colorado’s Regulation Counsel.  According to the stipulation, the sanctioned lawyer sent a demand letter on behalf of a client who claimed to have been injured at a Phish concert.  Per the stipulation,

  • “The person alleged to have caused injury to J.R. was V.D., who is an attorney. J.R. alleged that V.D. got naked during the concert and attempted to rush the stage, physically shoving crowd members (including J.R.) as he did so.”

In the demand letter, the sanctioned lawyer:

  • “used language that was demeaning towards [the naked lawyer] and unprofessional in nature. For example. [the sanctioned lawyer] referred to [the naked lawyer] as a ‘violent psychopath’; ‘obnoxious’; ‘a violent asshole’; ‘stupid’ (multiple times); ‘a shameless, ridiculous boasting shit’; ‘a terrible fucking attorney’; a “disgrace to the Colorado Bar, the Phish community, and [his] family; and ‘an g – 2 idiot.’”

The letter demanded $50,000.  It stated that if the naked lawyer paid, J.R. would not sue the naked lawyer, seek to have the naked lawyer banned from Phish concerts, notify the media, or, notify the naked lawyer’s employer. The letter added that if the naked lawyer did not pay, J.R. would sue, report the naked lawyer to law enforcement, and release a video of the stage-rushing incident to the media.

The parties stipulated that the letter violated Rules 4.4(a) and 4.5(a) of the Colorado Rules of Professional Conduct. The former prohibits lawyers from “using means that have no substantial purpose other than to embarrass, delay , or burden a third person.”  The latter prohibits, among other things, threatening to present criminal charges to gain an advantage in a civil matter.[1]  An announcement that the Presiding Disciplinary Judge accepted the stipulation and publicly censured the lawyer is here. 

I don’t have much to add.

But when has that ever stopped me?

Besides involving Phish, the story has another Vermont connection: according to the bio on her firm’s website, the lawyer who wrote the letter graduated from Middlebury College.  Moreover, the story is but the latest to involve the lawyer. 

Last March, she was named USA Today’s Women of the Year Honoree for Colorado.  The honor resulted, in part, from the lawyer’s representation of a client in a civil rights case against the Loveland (CO) Police Department. Then, in December, a Colorado television station reported that the lawyer’s work in the Loveland case and other civil rights cases “appears to be paying off.”  The report featured this plaque that adorns the office building that the lawyer owns:

Finally, the coverage of the disciplinary sanction has focused almost exclusively on the sanctioned lawyer. I understand why.

However, perhaps influenced by vague recollections of my my friends’ younger days, I found myself thinking about the lawyer who took off his clothes and rushed the stage during the Phish concert.

Well folks, the interwebs are a marvelous thing.

From this Reddit thread, I learned that, on the day after the concert, someone posting as Vinsanity46 claimed to be the naked lawyer. The person used Phish Net to attempt to explain & to apologize for their conduct.  Here’s the post:

  • “So I was the naked guy that tried to get on stage last night. My sincerest apologies to anyone I may have bumped, knocked, or generally rustled in my attempt to rage against the dying of the light.

    For me, that was the type of show you can’t exactly imagine until it happens, and then it breaks you down to the point of needing to be naked and get on stage, but I digress.

    As my friend Jeff said at set break, the first set felt like one, long, big explosion. The jams were those moments of improv where you think the band might be losing their touch, slipping into total dissonance but then WHAM. Pure cohesion, masterful sound control, and peaks that you really haven’t heard before.

    The second set is when things really went off the rails for me, but from what I do remember: Disease was astoundingly good and deep. Then to land on Numberline felt like a well earned reprieve from the nonstop onslaught that had taken place this far. “Take my hand” really met me where I was, and began to put me back together…

    Until Carini exploded my mind into one million sparkling bits of love dust through which I had to fight against the dying of the light and find my way to the stage. Unfortunately, I chose to do it by sprinting naked with my eyes closed through the crowd without a care for others. I caught the encore from the medical tent, very grateful I was slowing descending back to planet earth.

    All in all, my deepest apologies to anyone who had to deal with my nonsense last night, but this show is why we do what we do. And I’ll be taking it easy this evening . . .hoping for a Sanity opener…

    I love this band, I love you all, and I’m grateful for what we have.”

As always, and whether at a concert or writing letters on behalf of clients, let’s be careful out there.

[1] Vermont’s Rule 4.4(a) is identical to Colorado’s Our version of Rule 4.5 differs from the Rocky Mountain state’s but still prohibits threatening to present criminal charges to gain an advantage in civil case.

Are you sure that opposing counsel is being deceitful?

Michael 2 Comments

Rod Smolla is the President of Vermont Law & Graduate School.  Last week, Rod was the guest speaker at the Professional Responsibility Program’s (PRP) annual meeting.  In my opinion, Rod’s presentation served as a model of the duty of competence that all lawyers would do well to emulate.  I also believe that it provides insight into civility, professionalism, and a lawyer’s perception of an adversary’s conduct.

With dozens of PRP members serving as “justices” and peppering him with questions, Rod argued two cases that are pending before the United States Supreme Court: Students for Fair Admissions v. Harvard and Students for Fair Admissions v. University of North Carolina.  Each case involves the use of race as a factor in college admissions. The Court heard argument last fall and decisions should be released soon.

To be clear, Rod argued both sides. That’s right: without notes, Rod spent 10-15 minutes making arguments in support of the positions taken by Students for Fair Admissions, then another 10-15 as if representing Harvard and UNC.

You would not have thought that Rod short-changed either client.  Nor would you have been able to discern his personal views on the issues before the Court.  Rod knew the facts, knew the law, and made effective arguments for each side. 

To me, knowing both sides of a matter is an aspect of competence.[1]  I also consider it critical to complying with the duty to provide a client with candid advice.[2]  A duty that, as I blogged here, includes delivering advice that the client might find unpalatable.

That Rod’s presentation exemplified competence is easy to grasp.  What you’re probably wondering is “Mike, what does it have to do with civility & professionalism?”  Great question!

In April, I asked whether Vermont’s legal profession has a civility problem and, if so, what should be done about it.  The post was spurred by Andrew Manitsky’s efforts as President of the Vermont Bar Association.  Andrew has made civility a focus of his presidency.  As such, the VBA conducted a civility survey earlier this year.  I referenced the results in my post.  Andrew wrote more about them in his most recent President’s Column for the Vermont Bar Journal.[3]

The survey asked respondents to identify the types of unprofessional behavior they’d experienced over the previous six months. 49% reported having dealt with lawyers who misrepresented or stretched the facts.  34% indicated that they’d experienced lawyers who either misrepresented the law or made baseless legal arguments.[4]

I do not doubt that there are lawyers who stretch or misrepresent the facts and the law. Having screened complaints for 9 of the past 11 years, I’ve seen it.  Not often, but I have.  However, on this issue, there’s something else that I’ve noticed over the past year.

It’s not uncommon for lawyers to contact me to ask about what they perceive to be another lawyer’s lack of candor. Basically, they’re looking for a “gut check.”  It’s difficult for me to respond because I don’t know the entire case or, more importantly, each side of the story. So, it’s not uncommon for me to ask, “why do you think that was deceitful?” 

Lately, I’ve been struck by how frequently the explanation of “why it’s deceitful” doesn’t demonstrate deceit as much as it demonstrates a fair disagreement as to what happened and what the law requires in response. In other words, my anecdotal experience has been a perceived uptick in what boils down to “I don’t agree. So, they must be lying.”

Maybe. 

But maybe not.  Not every disagreement means that one side is lying. Which gets me back to President Smolla’s example.

Rod made persuasive arguments for each side.  He was able to do so because he thoroughly understood the facts that helped and hurt each side, the law that helped and hurt each side, and the strengths & weaknesses of each side’s arguments. To me, that’s competence.[5]

Again, my recent experience is anecdotal and the uptick I perceive likely lacks statistical relevance.  However, I’ve started to wonder whether some of the reports that “other lawyers lie about the facts and law” might not reflect a lack of civility & professionalism. Rather, I wonder whether a percentage, however small, might reflect a failure to understand both sides of the matter.[6]  

In sum, don’t hesitate to call for a “gut check.”  But, if you do, don’t be surprised if I ask whether opposing counsel’s “false statement” is exactly the statement you’d be making if in their shoes.[7]

Be like Rod.

And, as always, let’s be careful out there.

[1] See, V.R.Pr.C. 1.1.

[2] V.R.Pr.C. 2.1 requires a lawyer to “exercise independent professional judgement and render candid advice.”

[3] Andrew’s President’s Column begins on page 5.

[4] There were several other choices for respondents to select.  However, these two examples of unprofessional behavior are relevant to this post.

[5] Obviously, it wouldn’t work in a real-life setting for numerous reasons, but I think it’d be a fantastic experiment to have two lawyers arrive for a contested trial or argument not knowing which side they’d be assigned to represent. It reminds me of a saying in coaching that’s reserved for the coaches who most impress other coaches: that coach can beat yours with theirs and theirs with yours.

[6] I’m not suggesting that the failure is intentional or borne of an ill motive. It simply could be a lawyer who is so invested in their client’s position as to lose track of the axiom about which, as kids, the First Brother and I often stressed to our parents: there are two sides to every story & argument.  

[7] Don’t worry if your answer is “yes.”  First, our conversation is confidential.  Second, and more importantly, it will give you the chance to sing the first line of the chorus to Taylor Swift’s Anti-Hero to me.  “It’s me, hi, I’m the problem it’s me.”  That’d be a fantastic memory for us to have. Yes, this footnote was but a lame excuse to add to the list of Taylor Swift songs I’ve referenced on this blog. Also, congratulations on making it to footnote 7 of this post!

VBA distributes a survey on civility & professionalism

Michael

I first started blogging about civility in 2017.  Ever since, it’s been a frequent topic.  Still, I find those early posts interesting, if only from the perspective of how my thoughts on civility evolved. 

In February 2017, I posted President’s Day & Civility.  My first post that includes “civility” in the headline, it includes no original thought.  Rather, I used the occasion to share then-ABA President Linda Klein’s message on the role that lawyers can play in promoting civil discourse. 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.”

Later that year, W.I.N. Your 3-Feet of Influence marked the first post in which I urged lawyers to practice civility.[1] The post doesn’t include a single reference or citation to the Rules of Professional Conduct.  Rather, echoing President Klein and using a prop from my coaching days, I wrote:

  • “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 react.”

Finally, 2017’s civility posts concluded with Don’t Be a Jerk.  The post was the first in my series on the 50 Original Rules and the first in which I attempted to argue that, in fact, civility has long been one of our professional obligations. 

As the years have gone by, I’ve continued to address civility & professionalism both in this space and at seminars.  I’m not the only one. As I wrote here, at the 2021 swearing-in ceremony, Justice Eaton’s remarks to Vermont’s newest lawyers focused on civility and included this statement:

  • “I would ask you to remember that incivility is not advocacy, nor is it effective lawyering.”

Similarly, at the same ceremony in 2022, Chief Justice Reiber celebrated new lawyers’ taking of the oath with a speech “about ethics and civility as both are wrapped in professional judgment and character.” Early in his address, the Chief noted:

  • “Let there be no doubt the notion of zealous advocacy is alive and well in the courts.  But does it excuse us as practicing lawyers from exercising common sense and moral judgment, obligations to non-clients?”

As you might guess, the remainder of the Chief’s remarks answered the question in the negative.  In the process, and referring to the late Joan Wing, the Chief stated:

  • “It is well known that lawyers serve the public by serving clients and administering justice.  But good lawyers also serve the public by modeling civility and respect for human dignity, including to those who have fallen.  Civility as in not mere politeness but a trait of character evidenced in speech and conduct, grace.”

And yet despite years of promoting civility, the feedback from practicing lawyers is that incivility remains a problem.  I noticed an increase in incivility that coincided with the onset of the pandemic. I’m not so naïve to believe that a waning public health crisis will counteract the rise, and I’ve received reports that stress and anxiety associated with both the backlog and the reopening have contributed to a further increase in incivility.

What to do? I don’t know.  But maybe there’s a place to start.

Andrew Manitsky is the current President of the Vermont Bar Association.  Andrew has made civility and professionalism a major focus of his tenure.  He addresses the topic in his forthcoming “President’s Column” in the Vermont Bar Journal.  Also, on March 31, Andrew, Judge Teachout, and I will present a seminar on civility/professionalism at the Mid-Year Meeting in Manchester.

 Yesterday, the VBA sent a survey on civility/professionalism. By the end of the day, more than 300 lawyers had responded.  I understand that the data is already quite illuminating.  We will share the results at the Mid-Year Meeting.

Please check your email and take the survey.  Your voice matters as we redouble our efforts to promote civility and civil discourse within the Vermont legal profession.

[1] It’s the third most-read post in this blog’s history, trailing only my posts on Joan Wing and Peter Hall. Therefore, in a way, each of my 3 most-read posts is about civility.

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High School Basketball and an Order Imposing Sanctions for Incivility

Michael 2 Comments

My high school basketball coach expressed displeasure in various ways.  There was one method that we feared the most. He didn’t use it often, but when he did, it was often the last time he had to use it with the offending player.  Here’s how it worked.

Imagine that I did something egregious at practice.  “Egregious” in the behavioral sense, not because I missed yet another shot or made a typically errant pass.  Coach would make me sit on the stage while my teammates ran sprints because of my egregious behavior.  As they ran, Coach would bring me water and go overboard to make sure I was comfortable. 

Most players in my predicament desperately pled to be allowed to run in their teammates’ stead.  Or, at the very least, begged to join them in serving the punishment.  Nope.  Coach insisted on me resting while my teammates paid the price of my conduct.

Being made an example of worked. I don’t remember a single player having it happen more than once.

Yesterday I read an order issued by a New York trial court in response to a motion for sanctions.  It reminded me of Coach’s tactic. The order is here.[i] Here’s my summary.

Following a deposition in a civil suit, counsel for the defense moved for sanctions against plaintiff’s counsel and an attorney who represented the witness.  According to the court,

  • “The deposition transcript of 175 pages speaks for itself and need not be repeated. Suffice it to say that [Attorney 1], counsel to the witness, interjected 187 times with improper speaking objections and/or colloquy, while [Attorney 2], counsel for plaintiff, interjected 114 times with improper speaking objections and/or colloquy. Counsel instructed the witness not to answer 30 questions without any lawful basis.” (internal citation omitted).

The court noted:

  • “Improper deposition behavior not only thwarts the deposition but tarnishes the profession. Offensive and abusive language by attorneys in the guise of zealous advocacy is plainly improper, unprofessional, and unacceptable.”

In the end, the court sanctioned the lawyers. It ordered them to conduct themselves in a civil manner going forward, pay attorney’s fees associated with the deposition and the motion for sanctions, and make monetary payments to New York’s Client Security Fund. 

In addition, and most pertinent to this post, the court ordered the attorneys to attend a CLE on civility within 30 days and to attest to the court that they’d attended and read the “standards of civility.”  The court included this footnote:

  • “Counsel are referred to the NYS Bar Association which sponsors a regular CLE on civility taught by Vince Syracuse, Esq. The transcript in this matter, with appropriate redactions, will be shared with Mr. Syracuse for use in his seminar as an example of uncivil sanctionable behavior.”

Given the court’s language, it’s possible that the CLE at which the transcript of their deposition will be used “as an example of uncivil sanctionable behavior” is not the same CLE that they are required to attend. Still, on the chance that it might be the same CLE, it reminded me of Coach. 

In basketball, nobody wanted to be that player that Coach sent to the stage while the others ran.

Similarly, in law, nobody wants to be that lawyer who I’m using as an example at my next CLE. But who am I to disregard a court order?

As always, let’s be careful out there.

Related Posts

[i] I can’t remember how or where I came across it. 

Virginia Lawyer Reprimanded for Vulgar E-Mail to Witness.

Michael 1 Comment

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.

legal ethics

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.

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Lawyers admonished for making baseless allegations of incivility against opposing counsel.

Michael 1 Comment

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.

Why?

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.

Oops

Lawyer’s incivility factors in substantially reduced fee award.

Michael

It’s rare that I post twice in the same day.

Earlier today, I posted a blog with “quick tips” to reduce stress. In it, I mentioned what I’ve mentioned often over the past few months: in my opinion, incivility by lawyers contributes to stress and negatively impacts lawyer well-being.

If not being a jerk for its own sake isn’t enough, here, perhaps, is motivation to be more civil: a California appellate court recently affirmed a trial court’s decision to use a lawyer’s incivility as part of the basis to award a lower fee than the lawyer had requested.

The opinion is here.  Thank you to Geoffrey Bok for sending it me.  Geoff is admitted in Vermont and Massachusetts, is the former chair of the Massachusetts Board of Bar Examiners, and is an excellent resource on matters related to legal ethics and professional responsibility.

Per the opinion, a lawyer hired a contractor to work on the lawyer’s home. After paying the contractor more than $92,651, the lawyer instructed the contractor to stop.  The lawyer was not satisfied with the work and claimed that the contractor owed him $35,096.  The contractor agreed that he owed the lawyer a refund, but only $13,000.  The lawyer sued.

The lawyer prevailed.  Under California law, the lawyer was entitled to judgment in the entire amount he had paid to the contractor – $92, 651 – even though he’d received the benefit of work that not a single witness had “impugned.”  The trial court also awarded the lawyer just over $30,000 in other damages and costs.  By law, the lawyer was entitled to attorney’s fees.

If you don’t believe the next line, please refer to pages 5 and 6 of the opinion.  The lawyer requested “$271,530 in attorney fees, $52,021 in discovery sanctions, and $203,646 for proving matters at trial that had been denied in discovery.” The trial court determined that the lawyer had not provided sufficient evidence to assess whether the fee request was reasonable and gave the lawyer additional time to make the argument.  The trial court instructed the lawyer to limit additional argument to 10 pages of text, plus any exhibits.

The lawyer submitted additional evidence – 11 pages of text, over 400 pages of exhibits – and requested an additional $16,000 in fees.

In the end, the trial court awarded $90,000 in fees.  Among the factors that the court cited in declining to award the full amount requested was the lawyer’s incivility and over-litigation of the matter.

The appellate court affirmed the trial court’s decision that the lawyer was not entitled to the full amount requested.  In so doing, the appellate court commented on the lawyer’s incivility.  The comments begin on page 15.  Here are excerpts, with citations omitted:

“Fifth, the court correctly noted the incivility in (the lawyer’s) briefing. Attorney skill is a traditional touchstone for deciding whether to adjust a lodestar. Civility is an aspect of skill.

Excellent lawyers deserve higher fees, and excellent lawyers are civil. Sound logic and bitter experience support these points.

Civility is an ethical component of professionalism. Civility is desirable in litigation, not only because it is ethically required for its own sake, but also because it is socially advantageous: it lowers the costs of dispute resolution. The American legal profession exists to help people resolve disputes cheaply, swiftly, fairly, and justly. Incivility between counsel is sand in the gears.

Incivility can rankle relations and thereby increase the friction, extent, and cost of litigation. Calling opposing counsel a liar, for instance, can invite destructive reciprocity and generate needless controversies. Seasoning a disagreement with avoidable irritants can turn a minor conflict into a costly and protracted war. All those human hours, which could have been put to socially productive uses, instead are devoted to the unnecessary war and are lost forever. All sides lose, as does the justice system, which must supervise the hostilities.

By contrast, civility in litigation tends to be efficient by allowing disputants to focus on core disagreements and to minimize tangential distractions. It is a salutary incentive for counsel in fee-shifting cases to know their own low blows may return to hit them in the pocketbook.”

Here, here.

Don't Be a Jerk

Wellness Wednesday: a message from Justice Eaton.

Michael 1 Comment

“I would ask you to remember that incivility is not advocacy, nor is it effective lawyering.”

~ Harold Eaton, Associate Justice, Vermont Supreme Court

********

I’ve blogged & spoken often on the connection between civility and attorney well-being. Recently, I’ve expressed concern that an erosion of the former is negatively impacting the latter.

Last week, the Vermont Supreme Court held its annual admission ceremony. Following the administration of the attorney oath, Justice Eaton delivered remarks that touched upon civility, attorney well-being, and the impact one has on the other. In short, a reminder that we must take care of ourselves, take care of each other, and that civility & courtesy are at our endeavor’s core.

The YouTube video of the ceremony is here.  Justice Eaton begins at the 9:33 mark.   Otherwise, the full text of the speech is below.  It would bode well for our collective well-being if even those of us no longer new to Vermont’s legal profession took time to consider Justice Eaton’s message.

wellness

*****

Thank you, Chief and welcome to all the admittees, their families and friends. The Justices of the Supreme Court are very pleased to be with you today, even though we must do so remotely. We extend our warm welcome to the legal profession to those of you who have recently been admitted, and to the Vermont bar for you and for any attorneys previously admitted in other states. On behalf of the entire Supreme Court, I congratulate all of you on your great achievement. We wish could be with you in person, but the challenges of these times make that impossible. We hope to meet each of you soon under sunnier skies.

As new lawyers, you are entering the profession at a time unlike any other. This is a period of great challenge, great change and great adaptation in the world and in our profession. As attorneys, it is up to us to meet those challenges and make the changes and adaptations necessary to protect and preserve the rule of law and the system of justice which is built upon it. It is a heavy responsibility, but I know that you will each do your part.

I am sure few of you know the exact path your legal career will take. Regardless of what your path may be, you have the opportunity, whether actively practicing law or not, to make a difference on big stages and on small ones. Especially in these times, in the face of a global pandemic and when it seems that the rule of law is and has been under attack, there is so much to be done. This is such an important time for lawyers, as we work to preserve our legal system and our country’s and the world’s respect for it.

I hope that you will never forget the exhilaration you felt when you learned you passed the bar exam, the joy of that moment and of this day, and, as importantly, the awesome responsibility that comes with being a lawyer. When times get tough reflect on the sacrifices you and your family have made to get you to this place. It is no small achievement.

It has been my privilege to be a member of the Vermont bar for over forty years. During that time, I have made some observations, some of which I would like to share with you in the hope you may find them useful.

Vermont is a small state with a small bar.  The anonymous lawyer is a rarity here. You will become known in your community and in the legal profession. As you start with clean slates, you get to write the first chapter in your “I’m a Vermont attorney” book; make it one which sets the tone for the chapters to be written in the years to come—many of which will be penned by others based upon their dealings with you.

Vermont’s small size can work to your advantage. Ask questions of experienced lawyers you meet. You will find most, if not all of them, very willing to share their knowledge with you.

Learn from your experiences. One of the best things about being an attorney is the opportunity to continue to learn and to grow. Your legal education is never completed, there is always something new to learn. The day you think you’ve “got it” about being an attorney is probably the first day you begin to “lose it.”

In order to win the trust of your clients or your employers it is not necessary that you have all the answers. What is important is that you know what you know and recognize what you do not know. A good lawyer doesn’t have all the answers at their fingertips but has the ability to find the answers and the humility to know when research is necessary. Despite your best efforts, you will make mistakes. When you do, learn from them. Strive to be a better lawyer tomorrow than you were today.

You have received a bar admission which reads that you are an “attorney and counsellor at law.”  Your counselling role with your clients is just as important, if not more so, than your substantive knowledge. What you can do for a client is often different from what you ought to do for them or what they are at first urging you to do. Part of what you bring to your clients is your judgment, not just your legal acumen. Although the final decision may be your client’s, do not withhold your counsel, even when it may not be what the client wants to hear.

The legal system has been called an adversary system. But being a good advocate for your client does not mean that you can write a more stinging rebuke than your opposing counsel. The lawyer who gets the best results for the client is not necessarily the one who knows or uses the most adjectives.

The electronic world has changed the practice of law in many good ways and in a few bad ones. It remains to be seen what the impact of remote hearings and yes, even remote trials, will be. When we come out of this pandemic one thing is certain—-the practice of law will be different than it was when we went into to it. We communicate so often now by rapid and remote means, rather than in person. This lends itself well to incivility, which has become more prevalent in recent years. I would ask you to remember that incivility is not advocacy, nor is it effective lawyering.  The Vermont Bar Directory contains the Guidelines of Professional Courtesy which the Bar Association membership adopted in 1989. I commend them to you.

If you are in a contested matter, learn to win with humility and to lose with grace. Remember: the other side feels as strongly about their position as you and your client do about yours.

As you start this chapter of your legal career, challenge yourself to be good stewards of the law. Our legal system works because people put their trust in it. Make it your goal to uphold that trust and to further it, so that many years from now, upon your retirement, people will say that you were a good lawyer and an honest person.

Being a lawyer is difficult; the work is hard, and the demands are many. The Supreme Court, in connection with the VBA, continues to work on important issues concerning attorney wellness. We see all too often lawyers neglecting their own physical, emotional or mental well-being, often with sad, if not disastrous, results. Keep a distance between your client’s problems and your personal life. You cannot serve your clients or your profession if you do not take care of your own mental and physical health.

That starts with taking the time to decompress. The practice of law is as draining as it is rewarding. You have to keep sacred the time to do the things you enjoy and the things that help you to relax. Believe it or not, in the not-too-distant past, there was a time without cell phones. Remember to turn yours off from time to time. It is not your responsibility to be available to your clients 24/7 even if they think that it is. If, despite your best efforts you find yourself becoming overwhelmed, reach out to the Bar Association’s lawyer assistance program or to a colleague for help.

Justice must always mean more than who can shout the longest or the loudest. We all must ensure that the weak as well as the strong are heard; that the poor as well as the rich have a playing field that is level for everyone; and that we as attorneys do no falsehood nor delay any person for lucre or malice. These are the things which serve to maintain public confidence in the legal system. It is our responsibility and our duty to fight for these things with all our combined strength every day of our legal career. The challenges of today will give way to the challenges of tomorrow, but we must always rise to meet them, whatever they may be.

The legal profession in all its varied aspects is bigger than any one of us, but its vitality, and the public’s confidence in it depends upon all of us. Each of us as attorneys have a shared responsibility to make the legal profession all that it can be and all that it needs to be.

As you begin your career as a Vermont attorney, I leave you with this quote from “A Commencement for Scoundrels” by Samuel Hazo:

I wish you what I wish

myself: hard questions

and the nights to answer them,

the grace of disappointment

and the right to seem the fool

for justice. That’s enough.

Cowards might ask for more.

Heroes have died for less.

Thank you, welcome to the Vermont bar, and good luck to you all.

Don’t Be That Attorney

Michael

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.  

Sage advice. 

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.

Don't Be a Jerk

Related posts:

Don’t be a jerk

Five for Friday #155

Civility Matters: Especially Now

Incivility Results in Public Sanction

Advocacy, Decorum, and Grover

So, your client thinks she’s funny?

Wellness Wednesday: Baseball & Civility

Wellness Wednesday: Be Kind To Lawyers

#1: W.I.N. Your 3 Feet of Influence

Michael

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

Which leaves only 1 more.

Civility

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!