Are you engaged in 'civil' practice?

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Published on 11/3/08

In recent years, many state and local bar associations have adopted voluntary professionalism goals and standards that attempt to discourage "unprofessional conduct" and encourage "civility" for lawyers engaged in litigation.

Typically, these codes are not mandatory, and non-compliance carries no sanctions.

In Canada, where civility is highly valued, the Canadian Bar Association's Code of Professional Conduct specifically states in Rule IX, Chapter 16: "The lawyer should at all times be courteous, civil, and act in good faith to the court or tribunal and to all persons with whom the lawyer has dealings. ... Legal contempt of court and the professional obligation outlined here are not identical, and a consistent pattern of rude, provocative or disruptive conduct by the lawyer, even though not punished as contempt, might well merit disciplinary action."

The obvious question is why is this something that is even a problem in our profession? Why do some of us feel the need to be rude and obnoxious to our adversaries? Do we truly believe that such conduct will win us points or cause our client's position to be moved forward?

On the contrary, such behavior often merely entrenches the opposition further. Being nice, courteous and kind requires neither that we be a doormat nor that we cave in to our adversary's position. We can stand forthright to advocate our client's interest and position, yet still be civil and nice.

Civility has other ramifications. Consider client relations. Clients, like all people, like to buy from people they like. Doctors receive training about developing "bedside manner" and treating patients with "compassionate care." Yet law schools don't teach lawyers how to interact with clients or learn what is most important to clients. The lawyer is supposed to order, the client is supposed to obey. The result too often is unpaid bills and disciplinary claims.

I recently heard Marshall Goldsmith, who coaches more than 50 of the top 100 CEOs of corporate America, make some observations that all lawyers should take to heart:

  • What we do at home, we do at the office, and vice versa. In other words, if we are unkind to our colleagues, our staff and our adversaries, we're probably exhibiting the same behavior to our spouses and our children.
  • Trying too much to win can hold successful people back. Generally, we're successful because we're competitive. Being competitive, we win. But, we don't know when to stop and have to come out on top even in little things, when the effort can be counterproductive or hurtful.
  • Destructive words like "no," "but" and "however" discount the value of other people and their ideas. By merely saying "thank you," we can create, maintain and retain relationships with significantly greater results for all involved.

In the practice of law we should never forget that we are dealing with human lives. Our goals should be to bring a sense of order to troubled situations, to communicate honestly and directly about the legal and human difficulties involved, and to maintain full respect for everyone with whom we deal.

The law cannot be a profession unless we ourselves maintain professionalism.

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