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July 11th, 2023
Popular culture is flush with images of lawyers as bare-knuckled brawlers advancing their positions at all costs, sometimes through less-than-professional techniques. Many of us were entertained by Joe Pesci’s famously succinct opening statement in My Cousin Vinny, which earned him the trial judge’s blunt invitation to watch his language. Obviously, conduct of this type occurs in the real world, as well.
In 2018 the American Bar Association warned that “[c]ivility in our profession is waning, especially in the litigation arena.” Cullen, Siobhan A., “Civility in the Practice of Law.” ABA Products Liability Litigation Practice Points (May 22, 2018). West Virginia’s Standards of Professional Conduct echo the ABA’s sentiments, lamenting the “fundamental loss of common courtesy as a trend that accompanies the fast-paced existence most Americans now live,” and strive “to achieve the goals of civility and professionalism, both of which are hallmarks of a learned profession dedicated to public service.” Preamble, W. Va. Standards of Professional Conduct.
The ABA suggested a number of possible reasons for the decline in civility, including less face-to-face interaction among lawyers and judges. Worse, the ABA made this observation before the COVID-19 pandemic led to an even more pronounced decrease in personal interaction.
Whatever the reason, while a substantial majority of lawyers practice daily without crossing the line between zealously advocating for their clients and incivility, the loud minority who behave inappropriately generate enormous negative effects on the practice of law and the legal system generally. These effects include occupying judicial resources with unnecessary disputes, delay in the resolution of litigation, and unfavorable impressions by citizens, causing cynicism and mistrust of the legal system.
In response to this phenomenon, many state and federal courts have established civility standards. Although most of these standards are aspirational guidelines, not laws that authorize sanctions themselves, courts and other bodies charged with overseeing the practice of law have not shied away from advancing the goals of courtesy and respect embodied in civility rules through the application of the long-standing ethical rules governing lawyers. Faced with transgressions ranging from unnecessary filings containing unfounded accusations to abusive conduct toward opposing lawyers, courts have imposed sanctions for this sort of behavior that include suspension from the practice of law (Iowa Supreme Court Attorney Disciplinary Bd. v. Janssen, 981 N.W.2d 1 (Iowa 2022)), as well as limitation of an out-of-state lawyer’s right to practice in an individual case (Lendus, LLC v. Goede, 2018WL649 (Del Ch. Ct. 2018)).
It is tempting to say that rules should not be necessary to encourage appropriate behavior, but there is value in reinforcing guiding principles. Among lawyers specifically, civility is not inconsistent with the ideal of zealous representation of clients. In addition to being what most people would consider right, courteous, and respectful behavior helps the legal system function more smoothly and leads to better justice. As in so many areas, the ethical way of doing things usually turns out to be the best way for everyone involved.
