U/Z’s Scott Garner, recently named Co-Chair of the OCBA Civility Task Force, contributed an article to the March 2016 issue of Orange County Lawyer: “Civility Among Lawyers: Nice Guys Don’t Have to Finish Last.”
Scott points out in the opening paragraphs of the piece,”Clients rightfully expect their lawyers to engage in zealous advocacy. Too many lawyers, however, confuse zealous advocacy with incivility. . . . . A lawyer can be tough and aggressive, and still not be obnoxious and rude. Civility does not suggest weakness or a lack of zealous representation. As the ABA Model Rules (which have been adopted in varying forms in nearly all jurisdictions, albeit not in California) point out, ‘A lawyer’s duty to act with reasonable diligence does not require the use of offensive tactics or preclude the treating of all persons involved in the legal process with courtesy and respect.'”
The full text of the article is available on ocbar.org and set out below.
Civility Among Lawyers: Nice Guys Don’t Have to Finish Last
by Scott B. Garner
Civility is not a sign of weakness.
—John F. Kennedy
Clients rightfully expect their lawyers to engage in zealous advocacy. Too many lawyers, however, confuse zealous advocacy with incivility. In his 1988 publication, Robert Sayler described what he called “Rambo Litigation” tactics, which he defined as being characterized by the following:
- A mindset that litigation is war and that describes trial practice in military terms.
- A conviction that it is invariably in your interest to make life miserable for your opponent.
- A disdain for common courtesy and civility, assuming that they ill-befit the true lawyer.
- A wondrous facility for manipulating facts and engaging in revisionist history.
- A hair-trigger willingness to fire off unnecessary motions and to use discovery for intimidation rather than fact-finding.
- An urge to put the trial lawyer on center stage rather than the client or his cause.
A. Herron, Comment: Collegiality, Justice, and the Public Image: Why One Lawyer’s Pleasure Is Another’s Poison, 44 U. Miami L. Rev. 807, 818 n.51 (Jan. 1990) (discussing R. Sayler, Rambo Litigation: Why Hardball Tactics Don’t Work, 74 A.B.A. J. 78, 79 (Mar. 1, 1988)).
A lawyer can be tough and aggressive, and still not be obnoxious and rude. Civility does not suggest weakness or a lack of zealous representation. As the ABA Model Rules (which have been adopted in varying forms in nearly all jurisdictions, albeit not in California) point out, “A lawyer’s duty to act with reasonable diligence does not require the use of offensive tactics or preclude the treating of all persons involved in the legal process with courtesy and respect.”
Incivility can take many forms—including refusing to grant an extension to accommodate opposing counsel’s vacation, ad hominem attacks in meet and confer letters, and insults during depositions. Some lawyers believe these tactics demonstrate zealous advocacy. Others simply can’t help themselves. In neither case is such behavior acceptable or helpful to the client. At worst, it can anger a judge if brought to her attention and result in negative rulings for the offending lawyer’s client. At a minimum, it will end up costing the client more in fees, as lawyers charge clients for quarrels that likely could and should be avoided. And, to be sure, it heightens our daily stress and makes our profession less enjoyable than it otherwise could be.
An Uncivil Lawyer Can Harm His Client’s Case
Examples are myriad where a lawyer’s obnoxious behavior caused him or his client to be sanctioned. As just one recent and sobering example, the Second District Court of Appeal upheld terminating sanctions against a lawyer who crossed many lines. In Crawford v. JPMorgan Chase Bank, N.A., 2015 WL 8355515 (Dec. 9, 2015), the offending lawyer threatened opposing counsel at a deposition with pepper spray and a taser, then proceeded to insult the judge at the ensuing hearing. In upholding the terminating sanctions order, the court of appeal stated, “Far from the trial court abusing its discretion, it would have been an abuse of discretion not to impose a terminating sanction.” Id. at *4.
Few would defend the actions of this lawyer or question the resulting sanctions. But conduct does not have to border on criminal or violent before it can be considered uncivil and inappropriate. More often, a lawyer at a deposition will needlessly yell at and insult an opposing counsel, even if he doesn’t resort to physical threats and weapons. Such conduct, too, can lead to sanctions. Indeed, even if a judge chooses not to sanction the offending lawyer, such conduct is likely to negatively impact the judge’s view of the lawyer, and perhaps the client’s position, if and when the offensive conduct or testimony is brought to her attention. While many clients may like the idea of hiring an aggressive lawyer, imagine going to a client pitch and explaining that you engage in conduct that is zealous and aggressive, but that many judges dislike you as a result. And even though most judges would not consciously rule against a client merely because his lawyer does not “play well with others,” it certainly is not advantageous to your client’s cause to have the judge angry at you. Indeed, judges often comment that they are not impressed with personal attacks and insults by the lawyer; you don’t often hear a judge expressing admiration for a lawyer who engages in uncivil behavior.
An Uncivil Lawyer Needlessly Increases the Client’s Fees
Even if obnoxious or rude behavior toward opposing counsel does not prejudice the client’s case, it likely will increase the cost of litigation. When lawyers spend time at a deposition arguing about all things, they increase the length of the deposition. When lawyers refuse to answer discovery based on hyper-technical objections, and then refuse to meet and confer in good faith, they necessitate costly correspondence and motion practice. And when lawyers generally act obnoxiously to each other, they make it difficult to communicate and to resolve what otherwise would be easily resolvable differences. All of this increases the cost of litigation for both sides.
In Ahanchian v. Xenon Pictures, Inc., 624 F.3d 1253 (9th Cir. 2010), defendant filed a motion for summary judgment on the last day permitted under the court’s scheduling order, and immediately before the Labor Day weekend. Plaintiff’s counsel requested a one-week extension due to the shortened time caused by the holiday weekend and his preplanned absence from the state over that holiday weekend. Defendant’s counsel refused to agree, so plaintiff’s counsel filed an ex parte application, which the court denied. Plaintiff’s counsel then filed its opposition three days late, along with a motion to accept the late filing. The court denied the motion and granted defendant’s motion for summary judgment. The Ninth Circuit reversed. Citing the California State Bar’s Civility Guidelines, the court stated, “Such uncompromising behavior is not only inconsistent with general principles of professional conduct, but also undermines the truth-seeking function of our adversarial system.” Id. at 1263. “Our adversarial system relies on attorneys to treat each other with a high degree of civility and respect.” Id.
Accordingly, not only did the Ninth Circuit decline to reward counsel for refusing to grant a reasonable request for an extension, but both counsel incurred unnecessary fees in connection with multiple motions and the resulting appeal.
Incivility Makes the Practice of Law Unpleasant
More civility and greater professionalism can only enhance the pleasure lawyers find in practice, increase the effectiveness of our system of justice, and improve the public’s perception of lawyers.
—Justice Sandra Day O’Connor
Practicing law is simply more fun and less stressful when we have even a modicum of good rapport with opposing counsel. As one court of appeal put it, “The handshake at the end of the trial is not the only time when professionalism and civility are expected.” People v. Whitus, 209 Cal. App. 4th Supp. 1, 13 (2012). The occasional handshake during litigation actually reduces stress and makes life more tolerable—without compromising the duty of zealous advocacy.
Incivility Can Lead to Ethical Breaches and Discipline
Many bar organizations—including the California State Bar (http://ethics.calbar.ca.gov/Portals/9/documents/Civility/Atty-Civility-Guide-Revised_Sept-2014.pdf) and the Orange County Bar Association (http://www.ocbar.org/About/Conduct.aspx)—have civility guidelines, which generally are described as aspirational. In contrast to certain states, these guidelines cannot in and of themselves serve as the basis for attorney discipline. Yet, there are rules of discipline and other statutory mandates that preclude certain uncivil behavior.
For example, since 2014, new admittees to the California Bar take an oath promising, “As an officer of the court, I will strive to conduct myself at all times with dignity, courtesy, and integrity.” Cal. R. Ct. 9.04.
The State Bar Act provides that it is the duty of an attorney “[t]o maintain the respect due to the courts of justice and judicial officers.” Cal. Bus. & Prof. Code § 6068(b). Because lawyers, including opposing counsel, are “judicial officers,” California law mandates that we treat each other with respect.
Various rules give judges the power to sanction attorneys for improper conduct, both within and outside the discovery context. Business and Professions Code section 6086.7 requires a lawyer to notify the State Bar of, among other things, the imposition of sanctions against the lawyer (except discovery sanctions or sanctions of less than $1,000). Bus. & Prof. Code § 6086.7(a)(3). Thus, lawyers who risk the wrath of the court also risk a costly and stressful State Bar disciplinary investigation and proceeding.
Even for those discovery sanctions that are not reportable to the State Bar, they still can be costly for the client, the lawyer, or both. Sanction orders of tens of thousands of dollars are not all that uncommon. And even if the sanction is against the client and not the lawyer, clients often expect the lawyer to pay the sanctions directly or at least to deduct the sanction amount from the lawyer’s bill. Moreover, it is certainly not unheard of for a client to sue a lawyer for legal malpractice arising out of the lawyer’s conduct that led to a sanctions award.
Tips for Avoiding Inadvertent Incivility
For some lawyers, incivility is just in their blood, and it may take a fed-up judge to finally instill some civility into them in the form of a harsh sanctions order or other rebuke. Most of us, however, are not inherently uncivil, but rather may slip into incivility at various times, often with the help of an equally uncivil opposing counsel. So how do we avoid conduct that may end up being damaging to the profession, to our clients, and to our reputations?
First, we must accept the premise that civility is good and incivility is bad. Whether your goal is to (a) obtain a good result for your client, (b) provide efficient legal services, (c) preserve your reputation in your local Bar, (d) enjoy the practice of law, (e) treat the legal profession with respect; or (f) all of the above, you must recognize that acting civilly is both necessary and worthwhile.
Second, follow the Golden Rule—that is, to treat others as you would have them treat you. If you would want and expect opposing counsel to grant you an extension so you can take a family vacation, then grant opposing counsel that same courtesy.
Third, become involved in local bar associations and bar-related activities. As we become better acquainted with other members of our profession, we realize that our professional reputation does matter—not only in terms of how good and smart we are, but in how we treat other lawyers. Sitting on a board or bar committee with an opposing counsel will make you think twice before sending that heated and largely unnecessary email. Knowing you may run into your opposing counsel at that evening’s bar event may cause you to think twice before yelling at him that morning in a deposition.
Fourth, avoid personal attacks and vitriol. You can tell opposing counsel you disagree with his position without attacking him personally. You can even state your client’s opposing position forcefully and persuasively without using words like “ridiculous” or “ludicrous” and without threatening sanctions.
Fifth, treat every email as if it were a formal letter. When some of us started practicing, written communications with opposing counsel were by letter. After the letter was composed, it would be reviewed and revised before being finalized and sent out. Inappropriate and unnecessary statements hopefully would not survive this process. Now, most communications are by email, and the informality of emails often causes lawyers to hit the “send” button before the communication has been properly vetted. Do not fall into that trap. Thoughtfully review and consider all professional email communications before sending them.
Sixth, and related to the preceding paragraph, do not send emails when you are angry. Sometimes, after reading a brief or correspondence from opposing counsel, there is a desire and tendency to respond with a harsh retort. Feel free to write that vitriolic email response if it makes you feel better, but then take a breath, delete the draft email, and start again.
Seventh, assume all correspondence with opposing counsel will end up in front of a judge, and will be carefully read by that judge. Also, assume (and I think it is a safe assumption) that the judge will not be impressed by your repeated accusations of unethical and other untoward conduct by opposing counsel.
Eighth, do not let an uncivil lawyer drag you into the mud. It is so easy to return an obnoxious email with an equally obnoxious email because, well, opposing counsel deserves it. Avoid that trap. When the record ends up before the court, the difference in tone between you and your uncivil adversary will not go unnoticed.
Finally, pretend your mother is present at all of your depositions. Nowhere do counsel behave more poorly than in depositions. The combination of an adversarial situation, stress, and the absence of a judge tends to bring out the worst in lawyers. But it doesn’t have to be that way. If you are taking the deposition, ask your questions and try to avoid arguing over all matter of things with the witness or the defending counsel. If you are defending the deposition, state your objections, as appropriate, without making speeches or questioning opposing counsel’s abilities. See, e.g., Laddcap Value Partners, LP v. Lowenstein Sandler P.C., 859 N.Y.S.2d 895 (N.Y. 2007) (chastising lawyer for deposition conduct in which he repeatedly attacked female opposing counsel’s ability to ask questions, her lack of experience, and the fact she was a woman). The goal of a deposition should be to gather information, not to make the next seven hours of a witness and his counsel’s life as miserable as possible.
The law is a noble profession. There simply is no place in it for Rambo litigation tactics. As Justice Richman of the First Appellate District recently stated in an opinion upholding a sanctions award:
We close this discussion with a reminder to counsel—all counsel, regardless of practice, regardless of age—that zealous advocacy does not equate with ‘attack dog’ or ‘scorched earth’; nor does it mean lack of civility. Zeal and vigor in the representation of clients are commendable. So are civility, courtesy, and cooperation. They are not mutually exclusive.
In re Marriage of Davenport, 194 Cal. App. 4th 1507, 1537 (2011) (internal citations omitted).
Scott B. Garner is a partner with the law firm of Umberg/Zipser in Irvine, California. He practices in the area of complex business litigation, with a focus on attorney liability defense, among other areas. Mr. Garner just concluded a term as Chair of the California State Bar’s Committee on Professional Responsibility and Conduct, and he currently serves as the Advisor to that Committee. He also serves as Co-Chair of the Orange County Bar Association’s Professionalism and Ethics Committee, as a member of the OCBA’s Board of Directors, as the Co-Chair of the OCBA Civility Task Force, and as President of the Orange County Chapter of the Association of Business Trial Lawyers. He can be reached at [email protected].