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

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.

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.

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

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

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!

 

 

50 Resolutions: Don’t be a jerk.

Lawyers can provide competent & diligent representation without being jerks.

Don't Be a Jerk

Last week, I posted The 50 Original Rules.  It’s a post that briefly recaps the history of the conduct rules that apply to lawyers.  Best I can tell, the earliest record of guidelines for attorney conduct in the United States is David Hoffman’s 1836 publication of his Fifty Resolutions in Regard to Professional Deportment.  My post includes each of Hoffman’s 50 resolutions.

181 years later, it’s somewhat fascinating to me how many of Hoffman’s resolutions continue to resonate.  Many are embedded in the rules and our collective professional conscience.  Given my fascination, I’ve resolved to blog about the continued relevance of Hoffman’s resolutions, taking them one at a time.

I don’t know how long it’ll take me to get through all 50.  No matter, if even one of the resolutions resonates with but one of you, this endeavor will have been a success.

Here are my thoughts on Resolution #1.

Summary:  don’t be a jerk.

***************************

Fifty Resolutions in Regard to Professional Deportment

DAVID C. HOFFMAN (1836)

1.    I will never permit professional zeal to carry me beyond the limits of sobriety and decorum, but bear in mind, with Sir Edward Coke, that “if a river swell beyond its banks, it loseth its own channel.”

***************************

Hoffman’s initial resolution not to “permit professional zeal to carry me beyond the limits of sobriety and decorum” remains a crucial concept.  Indeed, the notion that a lawyer’s duties to adversaries, the courts, and the profession limit the exercise of the lawyer’s duties to the client runs throughout the rules.  

Zeal does not trump decorum. 

Here is Section 1 Preamble to the Rules of Professional Conduct:

 

“[1] A lawyer, as a member of the legal profession, is a representative of clients, an officer of the legal system and a public citizen having special responsibility for the quality of justice.”

Section 2 states that “[a]s advocate, a lawyer zealously asserts the client’s position under the rules of the adversary system.”

Section 9 of the Preamble recognizes that the basic principles of the rules “include the lawyer’s obligation zealously to protect and pursue a client’s legitimate interests, within the bounds of the law, while maintaining a professional, courteous and civil attitude toward all persons involved in the legal system.”

As did Hoffman, the Preamble to the rules contemplates that lawyers as more than mere zealots for their clients.  Rather, there is a higher duty to the system, the manner in which it operates, and the manner in which lawyers operate within it.

This idea is reflected in the rules as well.  For example, Rule 1.3 requires lawyers to act with reasonable diligence. The final sentence to Comment [1] states that “[t]he lawyer’s duty to act with reasonable diligence does not require the use of offensive tactics or preclude the treating of all persons involved with courtesy and respect.”

Rule 3.5(d) mandates decorum before a tribunal.  I cited to Comment [4] in a disciplinary case in which I prosecuted a lawyer whose zeal exceeded the bounds of decorum:

“Comment [4] 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 integrity by patient firmness no less effectively than by belligerence or theatrics.”

Let me say it again:  a lawyer can advocate for the client “by patient firmness no less effectively than by belligerence of theatrics.”

Finally, maintaining decorum at the expense of zealotry is not a concept limited to the rules.  It’s a decision we’ve made as a profession.

In 1989, the Vermont Bar Association adopted Guidelines for Professional Courtesy.   I encourage you to read them.  Most, if not all, are rooted in today’s topic.  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.”

In other words, effective advocacy doesn’t require being a jerk.

181 years later, it remains abundantly clear that zeal does not trump civility. As did Hoffman, perhaps we can resolve never to permit zeal to carry us beyond the limits of sobriety and decorum.

****

Related post:  W.I.N. Your 3 Feet of Influence

 

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.

Civility

This Ain’t No Lawyer Joke

Stop me if you’ve heard this one before: a lawyer walks into a deposition with pepper spray and a flashlight that doubles as a stun gun…..

No joke, i’m not joking.

I can’t do the story justice.  The ABA Journal has it HERE.

I don’t think we need a 1 hour CLE to cover this one: it’s best not to threaten opposing counsel with pepper spray and a stun gun.

So far, no word on whether the lawyer has raised the “Costzana defense” with California’s disciplinary authorities.