As a neutral Administrative Law Judge
and arbitrator, I have had some hot-headed uncivil litigants appear before me over the years. Sometimes I have threatened them with sanctions: mild, administrative stuff, such as excluding argument or evidence which the incivility concerns; halting the hearing; or--in extreme cases reflecting a pattern of disrespect--excluding counsel or their client from the hearing. Generally, though, I chalk it up to that just being what advocates do.
Recently though, I have had cause to wonder if society and/or the bench is going through a bit of a metamorphosis on this issue. The April 2012 ABA Journal notes
that "more states are treating incivility as a possible ethics violation." Id., Be Nice. It notes that while "[i]ncivility among lawyers is not a new concern, ... the issue ... appears to be moving to the front burner" today in the U.S. It specifically points to several jurisdictions that "are addressing the problem with more forceful measures." For instance, Michigan has reprimanded the attorney who defended Dr. Jack Kevorkian, Geoffrey Nels Fieger, for "engaging in undignified or discourteous conduct toward a tribunal," and for failing to "treat with courtesy and respect all persons involved in the legal process." In several local radio broadcasts, Fieger had commented on three court of appeals judges, declaring war on then, calling then "jackasses" and referring to fists in their posterior ends.
In Florida, attorney Robert J. Rattiner was suspended for 60 days and thereafter put on probation for two years for "conduct prejudicial to the administration of justice." Rattiner had touched opposing counsel's hand during a deposition and attempted to run around the table toward him. The deponent stated she had been very scared, the court reporter declared "I can't work like this!," and "Rattiner's own consultant tried to clam him down, telling him to 'take a Xanax.'"
Since then, Florida has recently changed its oath of admission to include a duty of civility in oral and written communications. Michigan, Pennsylvania, Utah have also instituted civility codes or requirements.
that "more states are treating incivility as a possible ethics violation." Id., Be Nice. It notes that while "[i]ncivility among lawyers is not a new concern, ... the issue ... appears to be moving to the front burner" today in the U.S. It specifically points to several jurisdictions that "are addressing the problem with more forceful measures." For instance, Michigan has reprimanded the attorney who defended Dr. Jack Kevorkian, Geoffrey Nels Fieger, for "engaging in undignified or discourteous conduct toward a tribunal," and for failing to "treat with courtesy and respect all persons involved in the legal process." In several local radio broadcasts, Fieger had commented on three court of appeals judges, declaring war on then, calling then "jackasses" and referring to fists in their posterior ends.
In Florida, attorney Robert J. Rattiner was suspended for 60 days and thereafter put on probation for two years for "conduct prejudicial to the administration of justice." Rattiner had touched opposing counsel's hand during a deposition and attempted to run around the table toward him. The deponent stated she had been very scared, the court reporter declared "I can't work like this!," and "Rattiner's own consultant tried to clam him down, telling him to 'take a Xanax.'"
Since then, Florida has recently changed its oath of admission to include a duty of civility in oral and written communications. Michigan, Pennsylvania, Utah have also instituted civility codes or requirements.
In general the issue troubles me. "Incivility" is a subjective term, inherently difficult to define by any clear, principled standard that could be readily and evenly applied by disparate decision making and/or reviewing bodies.
In my own experience as a New Mexico Disciplinary Board Member, I have seen very disparate results in the disciplining of actual ethics violations as compared to "civility" issues. In one case, a lawyer had faced only a mild letter of caution for conflicts of interest and the failure to reduce to writing a contingency fee agreement amendment that was adverse to the client. In contrast, the federal court had temporarily disbarred a lawyer for what appeared to me, based on the whole record, to be a cavalier attitude to the bench, and zealous advocacy with an eye to protecting the client's record on appeal.
Between these cases, the lesson the public could easily draw is that we lawyers and judges will vigorously defend our right to public respect and good treatment, but are not so concerned about real damage or risk of harm to the actual users of legal services. This is exacerbated by how easily one can be penalized merely for objectionable conduct under claims of "incivility," "discourtesy," or "prejudice to the administration of justice." To me, all of these charges cry out for actual, physical disruption or egregious misconduct, to avoid their subjective misuse. Additionally, as the Board in Michigan noted in the Fieger matter observed, there can be freedom of speech issues.
Moreover, I do not think this view is so different from that of many other decision makers, if they think about it honestly and away from the heat of the most recent obnoxious litigant. Deb Mailander with the Labor Education and Research Center at the University of Oregon has issued her results of a recent survey of labor arbitrators associated with the Oregon Employment Relations Board. I think it is telling that while the overwhelming majority of arbitrators at the outset correlated civility closest to effectiveness of counsel, additional questions showed that when push came to shove they were more concerned by actual competency of counsel. Specifically, in Questions 1 and 2, 64-68% rated demeanor, courtesy, civility etc as being closest correlated to demonstrating or detracting from the advocate's professionalism or effectiveness during hearings. However, further questions revealed that the arbitrators rated the failure to develop the record as far more damaging than demeanor or civility issues. For instance, Questions 5 and 6 reveal arbitrators are 40%-92% more likely to be concerned by lack of skill than demeanor issues during witness examination.
I hope I am right, that we judges and lawyers are not more sensitive to issues related to court room decorum and respect of the tribunal and co-counsel, than we are to the actual competence of counsel and whether they are treating their clients properly. In the long run, the wrong focus will only further undermine negative public perceptions concerning the effectiveness of the justice system as to litigants.
Between these cases, the lesson the public could easily draw is that we lawyers and judges will vigorously defend our right to public respect and good treatment, but are not so concerned about real damage or risk of harm to the actual users of legal services. This is exacerbated by how easily one can be penalized merely for objectionable conduct under claims of "incivility," "discourtesy," or "prejudice to the administration of justice." To me, all of these charges cry out for actual, physical disruption or egregious misconduct, to avoid their subjective misuse. Additionally, as the Board in Michigan noted in the Fieger matter observed, there can be freedom of speech issues.
Moreover, I do not think this view is so different from that of many other decision makers, if they think about it honestly and away from the heat of the most recent obnoxious litigant. Deb Mailander with the Labor Education and Research Center at the University of Oregon has issued her results of a recent survey of labor arbitrators associated with the Oregon Employment Relations Board. I think it is telling that while the overwhelming majority of arbitrators at the outset correlated civility closest to effectiveness of counsel, additional questions showed that when push came to shove they were more concerned by actual competency of counsel. Specifically, in Questions 1 and 2, 64-68% rated demeanor, courtesy, civility etc as being closest correlated to demonstrating or detracting from the advocate's professionalism or effectiveness during hearings. However, further questions revealed that the arbitrators rated the failure to develop the record as far more damaging than demeanor or civility issues. For instance, Questions 5 and 6 reveal arbitrators are 40%-92% more likely to be concerned by lack of skill than demeanor issues during witness examination.
I hope I am right, that we judges and lawyers are not more sensitive to issues related to court room decorum and respect of the tribunal and co-counsel, than we are to the actual competence of counsel and whether they are treating their clients properly. In the long run, the wrong focus will only further undermine negative public perceptions concerning the effectiveness of the justice system as to litigants.
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