United States: "Civil Proceedings" And The Call Of Law

In a recent Colorado case, the lawyer was hired to litigate a construction contract lawsuit for a couple. After one of the initial hearings went poorly, the lawyer sent emails to his client calling the Judge in the case petty and adding other disparaging remarks made on the basis of religion and sexual orientation (People v. Robert E. Abrams).

In short, the Colorado attorney displayed a whole new level of unprofessionalism. Sanctioned by the ethics committee of the state Supreme Court, the attorney was given probation and required to complete ethical and cultural awareness training on the attorney's own dime, and report progress to the Colorado Bar. Despite completing the required disciplinary actions, the opinion against this attorney is available online and remains public, along with a notation, or black mark, next to his name on the Bar website that will never go away.

Attorneys are skilled as lawyers and have reputations to maintain. The first defines what attorneys are able to do for their clients, and the second defines who an attorney is with clients, Judges, opposing counsel, and other participants to legal proceedings. Attorneys without a positive reputation are going to be hamstrung in the business.

In society, there is a lack of public trust for lawyers, in general, and the legal profession specifically. Trust evaporates quickly when lawyers step out of bounds in unprofessional ways. It is valuable to both stay on the right side of ethical considerations as well as on the right side of the judiciary to be able to provide proper client advocacy and maintain mental health and wellbeing. When law is an individual's calling, she must remain professional in this line of work.

PROFESSIONALISM

So much of being civil in legal proceedings comes down to recognizing and respecting basic human dignity in the courtroom, which eroded particularly in the past couple of years. Instead, we are seeing a surge in bad behavior in the courtrooms and depositions.

While professionalism, and the rules that guide professionalism, create parameters for the ethical obligations in law, we have seen a number of concerning developments across the United States and in courtrooms. Many of these developments mirror what is going on in society and require a conscious shift in mindset to correct.

The list is long of ethical breeches of behavior in society, generally. Just last year, a Southwest flight attendant was so badly hurt by a passenger, the attendant was hospitalized. In another incident, a woman pulled a gun on a server in Philadelphia just for being asked to order online. Some women in New York City attacked a hostess for asking about their vaccination status.

These types of incidents tear down civility, just as bad behavior in the courtroom robs the proceedings of dignity. Discussions can easily get heated in the courtroom. At issue is how as practitioners can we step back from the heat, for the sake of our character, livelihood and life? How do we ignore the bait from other counsel and avoid the costs – in reputation and practice – of violating ethical discretion?

Professionalism can mean a lot of different things to different people. The key is a return to the values the law upholds through an understanding of why we do what we do. U.S. Supreme Court Justice Warren Burger back in 1985 captured this sentiment well in noting that everyone involved in the judicial process owes a duty of courtesy to all other participants. This includes judges, litigants, witnesses, court officers and all other participants in the legal process.

LEGAL EXPECTATIONS

Courtesy is not a nice to do; it is a necessity and expected in legal practice. The ABA Model Rules of Professional Conduct increasingly promote courteous and respectful behavior to tamp down on offensive attorney speech.

• Rule 3.5 on impartiality and decorum prohibits "conduct intended to disrupt the tribunal" (ABA, 2020).
• Rule 3.1 prohibits frivolous or abusive use of procedure. There are a lot of opportunities for mischief when attorneys are doing their jobs. Courtroom antics intended to embarrass, delay or burden a third person with no substantial purpose fail to demonstrate a good faith basis in knowledge of the case, case law or statutes violates this rule.
• Rule 8.2 prohibits misleading people in the course of our jobs statements that you know, to be false or statements that display a reckless disregard for the truth.
• Rule 8.4 prohibits conduct that is prejudicial to the administration of justice, which is a catchall category and can be applied to various instances of bad conduct.

Increasingly states are expecting parties to legal disputes to explicitly be respectful under the rules. States add to the standard of courtroom conduct with their own rules and typically require attorneys to check the box that they are adhering to the professional rules of conduct in that jurisdiction. In California, the "civility" oath states, "As an officer of the court, I will strive to conduct myself at all times with dignity, courtesy, and integrity" ( California Courts, 2014).

In Colorado, the preamble to the Rules of Professional Conduct establishes conformance to the requirements of the law. Attorneys are permitted to only use the law of procedures for legitimate purposes, not to harass or intimidate others. Lawyers should display respect for the legal system, including the people in it, public officials, judges and other lawyers. While advocating for clients, attorneys have an additional duty to uphold the integrity of the legal process.

The guidelines in  Colorado's Rules of Evidence 403 establish when to exclude evidence that unfairly prejudices, confuses, or misleads participants and that results in "undue delay, waste of time, or needless presentation of cumulative evidence" (Cobar, 2017). Unfortunately, we have all seen attorneys engage in hyperbolic, intentionally offensive, ad hoc arguments that disrupt proceedings.

In this, what goes around tends to come around. If an attorney is doing things that are intentionally targeted at embarrassing people connected with the case, these actions will create a toxic environment quickly.

PART OF THE JOB

It is the lawyer's job to square up the facts of a case and the law, then advocate on the client's behalf to the best of the attorney's ability. Our legal system is set up this way, permitting zealous legal advocacy in the pursuit of truth that will lead to the right person winning.

Attorneys are bound to represent knowledge in a case. An attorney executing an affidavit in conference with opposing counsel must keep to the truth; getting clever often boomerangs back. Likewise, attorneys should not engage in any efforts to conceal or destroy evidence, two behaviors that when suspected can quickly take a case off the rails. Concealing or hiding evidence can have potentially serious professional consequences, maybe even criminal consequences.

These standards within the profession do not mean that attorneys must confess every weakness in their client's case. A forthright process that avoids unnecessary delays is the goal. When a continuance is necessary, pursue it, but dragging out a case to prejudice the other side is not permitted.

Intentional delays and other "sharp practices" to hurt the other side can result in contempt of court charges. In addition, there are potential sanctions for violations of the civil procedure rules, including discovery violations, nasty communications that end up on the record, and practical consequences.

The courtroom environment is much more constructive when counsel can trust and support each other. Strategically building credibility with opposing counsel, the witnesses in the case and the judge can go a long way. Attorneys may need these parties on their side at some point in the future.

These recommendations are a floor, not a ceiling, for what is expected in legal proceedings. Getting around the rules should not be an objective. Behave, and as a matter of character, treat people the way they want to be treated. If an attorney does not have the innate character to follow ethical rules, then increasingly they will be held responsible for specific rule violations.

TERMS OF PROFESSIONALISM

Bad behaviors generally fall into one of two buckets. First are unintentional slips, such as failing to respond to opposing counsel appropriately or in a timely manner. This includes getting baited into a personal attack — someone says a nasty comment and the recipient responds in a less than gracious way. It happens. Attorneys are all pressed for time. Short tempers erupt.

The next bucket is intentional behavior, such as refusing routine extensions, sandbagging discovery or interfering with opposing parties' vacation and holiday plans. Another tactic in this bucket is, on the morning of a deposition, opposing counsel walks into the courtroom with a banker's box of documents with information that could have been disclosed a month, or even a week, ago.

These aggressive tactics are unnecessary, and when pervasive, they can leak into the culture of a firm, making them not only endemic but expected by both members of the firm and the firm's clients, who may assume attorneys within a certain firm will behave in a certain way.

An attorney's ability to corral and correct bad behavior in a firm is dependent on the attorney's own good conduct. When these bad practices become habitual and ingrained in a firm, then it is time to speak up. There are easy ways to point out misbehavior by taking people quietly aside, without embarrassing partners or creating contentious moments. Regardless of the culture at a firm, bad behavior should be documented.

At the end of the day, when an attorney's name is going to be on a case and her reputation is one of the few things she takes with her, make that reputation count. Zealous advocacy on behalf of a client does not require these bad behaviors.

A true legal advocate acts like a professional, which during the pandemic, some attorneys forgot. In April 2020, a Florida judge penned an open letter to the bar reminding lawyers to be timely and appear professional on camera. The lock down from COVID-19 had begun and some lawyers were tardy for video hearings, one lawyer appeared to be still in bed.

In another prevalent example, an attorney got stuck on a video call cat filter during a hearing. In May of 2021, a Michigan lawyer was fined $3,000 for raising his middle finger toward the camera to the opposing counsel during oral arguments. In a separate trial, a  Judge stopped a hearing and asked the jury to leave so that he could reprimand defense counsel for rolling their eyes, muttering and displaying aggressive body language – all signs of general disrespect to the court – when defense counsel became upset with a ruling.

In some of the highest stakes litigation, where clients have much to win and lose, attorney behavior is getting worse. Litigation is expensive, putting pressure on attorneys to make sure everything in their power is done for the win. It can become a rat race for attorneys that are overworked, tired, have families and other commitments.

RESTORE CIVILITY

Judges have little tolerance for unprofessional behavior. With that in mind, here are some best practices to restore civility in courtroom proceedings.

• Ignore the paper tiger. When an attorney fires off nasty emails to wind up opposing counsel, counter with a friendly face at court. This tactic points out the importance of seeing people face-to-face, three-dimensional, in-person, looking them in the eye, and moving a case forward.
• Protect your professional voice. A lot of what we use as our toolkit in our job is our voice. And so if you were putting yourself in a situation where you are exhausted, you're not taking care of your mental health. best practices type of stuff, but do things, you know, watch your, watch your health, watch your mental health, take some breaks.
• Keep in check.  When emotions fly high, poor judgment often follows. Do what you need to do to keep yourself in check and effective. Gain a reputation as somebody who gets the job done well and it will generate additional business. If you have a reputation as somebody who looks petty and engages in mudslinging, you can undermine your credibility.
• Shift the mindset.  Obviously, there are adversarial proceedings and attorneys drawn to civil litigation like the clash. Civil litigators are competitive people so win being the stronger competitor not for the skirmish, but for the war, continuing to run your practice and maintain credibility in the courts, in your firm and throughout your career. It is unlikely you will spend a significant amount of face time with any judge, so make sure you are sticking the landing every single time, and that your name is going to be associated with professional behavior.
• Benefit of the doubt. We're all human, at the end of the day, and we never communicate as effectively as we think we do. So if you have something where either you're potentially misunderstanding the position opposing counsel is taking, or somebody just had a bad day, give them a chance to get down off that ledge, potentially save some aspects of the case for later on, and improve the tenor for work down the line. In one case, my co-counsel wrote in a formal letter to the other side that he thinks he needs to "medicate" – a typo. He meant to say mediate but the type took the case off the rails because opposing counsel thought my co-counsel needed to medicate. When these misunderstandings happen, pick up the phone and set the record straight.

SANCTIONS KEEP ON GIVING

Sanctioned attorneys can lose their license temporarily or be permanently barred to practice law.  Or an attorney can have their pro hac vice status revoked in various venues, removing an attorneys ability to move from venue to venue. These revocations are public and posted to the state Bar and other forums; they follow an attorney both in law and in any other career the attorney might follow.

Judges have the latitude to get creative in sanctioning attorneys that cross the line. In addition to revocation and contempt of court, a Judge may impose financial sanctions or require an attorney to lower their fees.

Judges talk and know who they are facing. A retired judge handling a mediation I was involved in made it his practice to call litigants the day before mediation. During the call, it became clear that the Judge had done his homework on me. He had read some of my public writings and watched one of my CLE presentations. He asked questions about my background and who I had clerked for. He found out who I was before the mediation and no doubt it impacted the proceedings.

RACE TO THE TOP

The law profession is not a race to the bottom. Sometimes the best strategy is back up and let tempers calm down so the legal process can move forward professionally. In a Florida case (Florida Bar V Robert Joseph Ratiner), an attorney with no prior disciplinary history was sanctioned for basically going berserk, chasing opposing counsel and berating everyone in the room. For the attorney's three-minute harangue, he got suspended from practice for 60 days, two-years of probation, and a black mark for life.

In another Florida case, opposing attorneys were sanctioned in June 2021 for deposition misconduct. The federal magistrate judge in the case pointed out the tit for tat squabbles and shenanigans of the opposing lawyers wasted court time, and that reasonable and professional attorneys do not engage in needless and inappropriate bickering.

This case is timely in that it involved the inability to understand deposition questions and objections while the speaker was wearing a mask.  The court reporter threw her hands up; both counsel continued to fight; and a real record was not made.  But that wasn't the end of it.  Subsequent depositions continued using the same court reporter despite what appeared to be a real bias against one of the attorneys.  Lengthy speaking objections invaded the transcripts and depositions were halted.  Both sides went crying to the court without avail.  The judge simply saw the two men as children fighting in the sandbox.  The judge issued sanctions, including reducing the attorneys' fees.

What should have happened? After the first deposition, the attorneys should have switched court reporters. They could have brought a witness to the deposition or videotaped it in addition to the transcript if they were worried about the record instead of clouding the case with speaking objections and motions practice.

Lawyers have a professional capacity and fidelity to trust. That extends to behaviors that reflect favorably on the profession as a whole. While we cannot always know what opposing counsel is dealing with that day and why they are acting a certain way, we can control our response and make sure our strategy is aligned with ethical standards.

Among the high percentage of lawyers who are professionals, and who are a pleasure to work with, the aim is to do the best version of the job, make good arguments, and play the big chess game to its inevitable end. Then, everybody leaves on a cordial, collegial basis.

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