If you read legal blogs and publications regularly, you will occasionally find an editorial column mourning the lack of civility in the legal profession today. The author then follows up with a call for more-civil behavior among lawyers. In most cases, they make vague suggestions, such as extending professional courtesies, or just generally being “nice” to each other. Since these columns appear somewhat regularly, I assume that nothing is done, and the words fall upon deaf ears.
Recently, we were reminded what type of behavior is clearly uncivilized. A California lawyer sent opposing counsel numerous emails with profanities, slurs, and credible threats of violence. And his excuse? He claims to be using a “confidential negotiating tactic.” But his tactic may end up getting him into career-ending trouble and will serve as a warning to other attorneys who seek to use the “tactic” for themselves.
But why do calls for civility fall on deaf ears? Here are a few reasons.
First, it’s hard to define what it means to behave civilly. There’s no objective answer. Some say it is being able to disagree without being disagreeable. Others say acting professionally even when it is tempting to act otherwise. To put it another way, when does one cross the line into being obnoxious? Crude, offensive behavior is obviously uncivil, but is opposing counsel being uncivil when they disagree with your unquestionable belief that your client is clearly right? Or when opposing counsel annoys you by asking too many questions?
Second, some lawyers want to establish a reputation. Some newer lawyers have said that they are willing to take a close or even an unfavorable case to trial just to show opposing counsel that they are willing to go all the way. This is usually the case when a lawyer believes he or she will run into the same opposing counsel or law firm again in the future. Some just believe that it is better to be feared than to be loved. The problem is that while these lawyers want to make it clear they won’t take any crap, it can make them look like bullies.
Third, sometimes there is no win-win situation, and one side will clearly lose if it plays by the rules. Litigation between wealthy clients could present more opportunities for creative, peaceful resolutions since they have more assets that can be used to structure a settlement, but the middle class and the indigent don’t have that luxury. And sometimes, there is no misunderstanding between the parties. The landlord wants higher rent payments, and the tenant can’t afford it. The defendant is accused of embezzling company funds, and the company wants them back immediately. What’s a defense lawyer supposed to do when his client has no case, and opposing counsel is not willing to cut a deal? His client paid a lot of money with the hopes that his lawyer will use some fancy courtroom tricks to get him out of his mess.
Also, the lawyer does not want to lose face in front of a prominent client. For example, a lawyer might typically be willing to settle quickly if faced with a losing case, but what if the client was someone who has the clout and connections to make (or break) a lawyer’s future career? The lawyer might not want to look weak out of the fear that it may damage his reputation and cost potential clients or other opportunities.
Finally, being uncivil is sometimes part of the game. Why do most people want to go to law school? Some want a steady job. Others want to fight for their clients. Some of the most memorable cases (and movie screenplays) involved a lawyer standing up to unjust laws, unfair judges, or a team of high-priced lawyers defending evil corporations.
So is it possible for lawyers to act civilly? Yes, but realistically it’s not going to happen all the time. I’ve found that because every client, opposing counsel, judge, and issues are different, it is impossible to give a one-size-fits-all answer on how to act in a given situation.
The first thing I try to do is not take it personally. Keep in mind: lawyers are advocates for their clients going against other lawyers advocating for their clients. So some level of conflict should be inevitable.
Second, I always treat opposing counsel (or, in my case, tax auditors or collection officers) with respect regardless of whether my client and I are right or wrong. I make an effort to listen to their side of the story and try to explain this to my client. This does not mean that we have to agree with the other side or submit to their demands.
Third, is opposing counsel being uncivil for a reason? He might have had a bad day and could be taking it out on you (knowingly or not). In that case, it could be appropriate to be forgiving if they show proper remorse. Or opposing counsel might be using “confidential negotiation techniques” to try to intimidate you. If you suspect that, you will need to stand your ground and call the bluff.
Finally, I try to see if there is a way for my client to win while at the same time allow the opposing side to save face. If the opposing party thinks they will lose everything, including their reputation, they will likely used scorched-earth tactics that will unnecessarily prolong the dispute. The other party is likely to accept a settlement that will allow them to walk away with dignity.
While we pay lip service to achieving civility in the legal profession, the adversarial nature and the high stakes involved sometimes make it difficult. Opposing counsel chooses to take the low road for a number of reasons. But instead of complaining about it, you will have to learn how to deal with it.
Steven Chung is a tax attorney in Los Angeles, California. He helps people with basic tax planning and resolve tax disputes. He is also sympathetic to people with large student loans. He can be reached via email at sachimalbe@excite.com. Or you can connect with him on Twitter (@stevenchung) and connect with him on LinkedIn.