Civility, by Michael B. Keating in Business and Commercial Litigation in the Federal Courts, Robert Haig, Ed., vol. 5, section 60 et seq. (2nd edition, 2005).
Introduction
Often, you have to dig for gold. And so it is with the second edition of the multi-volume treatise, Business and Commercial Litigation in the Federal Courts, edited by the estimable Robert Haig. The eight volume set comprises 96 chapters on subjects ranging from RICO to electronic discovery to removal to ERISA. All of the chapters, prepared by seasoned practitioners and jurists, are solid and thorough – or so critics and commentators well-schooled in the mysteries of complex federal litigation have universally agreed. Most lawyers, however, don’t know where the PSLRA ends and SLUSA begins, and so are unlikely to turn to the pages of the treatise in search of useful nuggets. That’s too bad because, buried deep in Business and Commercial Litigation in the Federal Courts, there is something of good practical use to the common lawyer; to wit, Michael Keating’s wonderful, accessible chapter entitled simply “Civility.”
Aspirational Codes of Conduct
Christopher von Maack, writing for the Utah State Bar Journal, recently observed: “As a self-regulated profession . . . lawyers have an individual and collective role to play in maintaining civility in the practice of law. Undoubtedly, the primary responsibility is on the individual lawyer to act civilly. However, when the individual lawyer falters, other lawyers, e.g., opposing counsel, judges or the bar, must take some manner of action to maintain civility.” To be sure, this describes a sensible approach to a serious problem. However, in practice it is often difficult to impose high standards of decorum on fellow lawyers precisely because there are no standards. While uniform codes like the American Bar Association’s (“ABA”) Model Rules of Professional Conduct and Model Code of Professional Responsibility set out clear, mandatory rules governing the ethical limits of the practice of law, there is no similar codification of rules governing civility.
Well, that’s not quite true. Bar associations in many states have promulgated advisory codes of conduct for lawyers. In the commonwealth, for example, the Massachusetts Bar Association (“MBA”) adopted a “Statement on Lawyer Professionalism” in 1989. The MBA lawyer’s creed provides that “[a] lawyer should conduct himself or herself before the court in a manner which demonstrates sensitivity to the necessity of preserving decorum and the integrity of the judicial process.” It goes on to state that lawyers should “communicate respectfully with other attorneys . . . respect the schedule of opposing counsel . . . avoid creating unnecessary animosity . . . [and] utilize the least contentious method for dispute resolution.” However, the MBA emphasizes that the principles contained in the statement “are offered [only] as guidelines of ideal conduct to which the profession and its members should aspire, but are not intended to create standards to which any person shall be bound.”
In addition to the MBA guidelines, the Boston Bar Association (“BBA”) has promulgated standards of conduct, denominated “Civility Standards for Civil Litigation.” Directed specifically at issues of courtesy, the civility standards offer a fairly comprehensive body of suggested rules relating to inter-lawyer relations. The BBA code begins with many of the same basic precepts set out in the more general MBA document: a lawyer should “communicate respectfully with other lawyers . . . respect the schedule of opposing lawyers . . . [and avoid] unnecessarily burdening opposing lawyers by discovery or otherwise.” However, the BBA’s civility standards then explore in considerable detail – far more detail than the MBA statement – such topics as requests for continuances (“[a] first extension should be allowed even if the lawyer requesting it has previously refused to grant an extension”), service (“[p]apers should not be served so close to a court appearance that they might inhibit the ability of opposing lawyers to prepare for that appearance or to respond to the papers”), depositions (“depositions should be taken only where actually needed to ascertain facts . . . [and] never used as a means of harassment”), and motion practice (“before filing or serving a motion, a lawyer should engage the opposing lawyer in more than a mere pro forma discussion of its purpose in an effort to resolve the issue”). Virtually every possible point of contact between lawyers engaged in a civil dispute is contemplated by the civility standards. However, like the MBA, the BBA emphasizes that its civility standards are intended only as guidelines – “aspirational and voluntary” in the words of the BBA.
Keating’s Proposed Approach
Keenly aware of this lack of any formal binding regulations governing civility, Keating delineates a practical strategy for getting the best out of opposing counsel. He starts by building a convincing case for the view that standards of civility have declined dramatically during the past few decades. As possible causes of this phenomenon, Keating cites the advent of mega-firms, the overall increase in the number of lawyers, and the increasing reliance on e-mail as the primary method of communication among lawyers. These changes, he suggests, foster a sense of anonymity that emboldens lawyers to misbehave. In addition, Keating points to the modern “perception that rude litigators obtain better results for their clients.” The “SOB lawyer,” Keating claims, has become a sort of urban hero to be emulated by young practitioners looking for a shortcut to success. And clients do their part to nurture the stereotype, often looking for “the ‘meanest dog in the junkyard’ to represent them.” Whatever the cause, there is little question that the trend toward incivility is real. As Barrie Althoff, Washington State Bar counsel, recently observed: “For many lawyers, incivility and ‘sharp’ practices by other lawyers, judges and clients are among the most irksome aspects of the practice of law. Many lawyers believe such behavior is increasingly common and that professionalism among members of the legal profession is declining.”
To combat incivility, Keating proposes a combination of self-help and court intervention. As an initial matter, Keating suggests sending a letter to opposing counsel at the outset of a new case “setting forth suggestions for proceeding, reasonableness in setting deadlines, accommodations for busy schedules when possible, a willingness to discuss matters of disagreement, and the hope for a professional relationship notwithstanding any hostility between clients.” Establishing a spirit of cooperation from the beginning, Keating asserts, is often all that is required to ensure congenial relations throughout litigation.
However, if the subtle approach fails to promote professional conduct, Keating suggests documenting the misconduct of an opposing lawyer. As he notes, “savvy opposing counsel are less likely to be uncivil if their behavior is being recorded.” When the posturing starts, “request that counsel communicate solely via letter or e-mail.” If a lawyer refuses, Keating urges keeping a “written record of every threat or disparaging remark communicated orally, sending the writing to the offending attorney” ostensibly to ensure accuracy. This not only serves a potential normative function, but also creates a useful written record in the event court intervention ultimately is required.
In extreme cases, Keating contends that it may be helpful to remind an uncivil lawyer that oppressive behavior can provide the basis for sanctions. The Fifth Circuit recently upheld an award of $25,000 obtained on the basis of uncivil behavior, including “repeatedly calling opposing counsel and parties rude names and referring to the work of other attorneys as ‘garbage.’” Similarly, a federal district court in Florida reduced a statutory fee award to attorneys who were “disruptive during discovery,” “harassed the court reporter,” and called an opponent “a second-grade loser.” Finally, the Eleventh Circuit upheld sanctions against a lawyer who “made personal attacks on opposing counsel, including remarks on his physical traits.” Hitting a lawyer in his pocketbook – or even threatening to do so – is often a great way to get his attention, Keating argues.
If self-help fails, and only then, Keating recommends seeking judicial intervention to curb uncivil behavior. This can take several forms, depending on the context of the misdeeds – i.e., inside or outside the courtroom. In terms of outside-the-courtroom opportunities for misbehavior, discovery, according to Keating, is far and away “the area in which uncivil conduct is most likely to arise.” In particular, misconduct during depositions is very common. Typical abuses include conducting unnecessary depositions to harass an opposing party, improperly directing witnesses not to answer and harassing the witnesses of opposing parties. Fortunately, courts have broad authority to curb such abuses. Possible sanctions for such pre-trial offenses range from the imposition of costs associated with depositions delayed or obstructed by uncivil conduct to dismissal where the misconduct is extreme.
When incivility occurs in the courtroom, Keating opines that it is generally best to leave the question of discipline to the discretion of the judge. However, if a particular judge seems disinclined to act, and opposing counsel’s misconduct poses a significant threat to the interests of a client, Keating proposes two possible courses of action. First, a lawyer may request a sidebar “where the attorney should clearly and politely articulate his or her concern about the adversary’s conduct.” Provide as many specific examples as possible, Keating suggests. Alternately, a lawyer may file a motion for curative relief, “setting forth [the] factual basis [for the claim], including supporting affidavits if the complained of conduct [includes acts that are] not a matter of record.” As with remedies for pre-trial misconduct, relief for courtroom incivility can take many forms. Relief might include striking particular statements, providing a curative charge or even, in extreme cases, declaring a mistrial. Indeed, Keating cites a number of instances in which various forms of serious misconduct – including physical violence and verbal abuse – provided the basis for mistrials.
Regardless of whether misconduct occurs inside or outside the courtroom, to maximize the chance of obtaining relief from the courts, Keating advises that “[i]t is critical that counsel maintain decorum in the wake of incivility.” A lawyer with “unclean hands” is very unlikely to persuade a court that he or she deserves relief. Along these lines, Keating cites the example of a federal district court judge in New Hampshire who refused to award sanctions, despite a finding that counsel “has incontrovertibly abused the discovery process,” on the grounds that his opponent had responded in kind. Further, and perhaps more important, fighting fire with fire is, according to Keating, likely to succeed only in exacerbating acrimony among lawyers.
Conclusion
Keating observes that “[b]ad habits are learned early in a litigator’s career, and it is critical that more experienced lawyers serve as role models for younger lawyers.” Consistent with this view, Keating emphasizes throughout his chapter that refusing to respond in kind to guerilla tactics is always the best approach – whether your goal is merely to reduce rancor or to position yourself for some form of relief. He also warns that lawyers should never yield to client demands for a tougher approach. As Keating points out, “[a]ll litigators must be mindful that they – not the client – should control how the litigation is developed, and it is their reputation – not the client’s – that is at risk in the proceedings.” This is sound advice.
There is no question that Business and Commercial Litigation in the Federal Courts is intended for a specialized audience. For this reason, it is too bad, perhaps, that Keating’s fine chapter on civility should find a home there. In a perfect world, Keating’s essay would achieve much broader circulation, for it contains valuable lessons for all lawyers, regardless of their specialty. Indeed, even transactional lawyers who never set foot in a courtroom will find valuable information in “Civility.” It is worth seeking out, both to improve any lawyer’s effectiveness as an advocate, as well as to promote the best possible working environment for lawyers generally.
Roger Michel
1. Racketeer Influenced and Corrupt Organization Act, 18 U.S.C. 1961-68 (2000).
2. Employee Retirement Security Act of 1974, 29 U.S.C. 1001-1461 (2000).
3. See, e.g., Paul Sandler, Esq., “A New ‘Must Have’ for Legal Libraries,” The Daily Record (Baltimore), August 11, 2006, at 38; Hon. Richard C. Wesley, “Business and Commercial Litigation in the Federal Courts, 2d Edition,” NYSBA Journal, July/August, 2006, at 50.
4. Private Securities Litigation Reform Act of 1995, 15 U.S.C. 78u-4-78u-5 (2000).
5. Securities Litigation Uniform Standards Act of 1998, 15 U.S.C. 78bb(f) (2000).
6. Christopher M. Von Maack, “Civility in the Practice of Law,” Utah Bar Journal, March 2007.
7. American Bar Association, Center for Professional Responsibility, Professionalism Codes http://www.abanet.org/cpr/profcodes.html (last visited July 15, 2007).
8. Massachusetts Bar Association, (May 1989), http://www.massbar.org/for attorneys/publications/lawyers journal/2001/december/mba statement of lawyer professionalism (last visited July 15, 2007).
9. Massachusetts Bar Association, Statement on Lawyer Professionalism I(A)(1).
10. Id. at. II(A)(b),(c), (i).
11. Id. at Preamble
12. Boston Bar Association, Civility Standards for Civil Litigation, available at http://www.bostonbar.org/prs/civility.htm.
13. Id. at §§A(2), (3), and (4).
14. Id. at §B(1)(a).
15. Id. at §B(2)(b).
16. Id. at §B(5)(a).
17. Id. at §B(8)(a).
18. Id. at Preamble.
19. See Michael B. Keating, Civility, in Business and Commercial Litigation in the Federal Courts, §60.2 (Robert L. Haig ed., 2nd ed., 2005).
20. Id.
21. Barry Althoff, “Ethics and the Law: The Ethics of Incivility,” Washington State Bar Association, April, 2003, available at: http://www.wsba.org/media/publications/barnews/archives/2000/jul 99 civility.htm.
22. Keating, supra note 17, at §60.4.
23. Id.
24. Id.
25. Id.
26. Id. (discussing In re Bancorporation of Texas, Inc., 282 F. 3d 864, 866 (5th Cir. 2002).
27. Id. (discussing Lee v. American Eagle Airlines Inc., 93 F. Supp. 2d 1322, 1327 (S.D. Fla. 2000).
28. Id. (discussing Thomas v. Tenneco Packaging, Inc., 293 F. 3d 1306, 1324 (11th Cir. 2002).
29. Id.
30. Id. at §60.5.
31. Id.
32. Mass. R. Civ. P. 37.
33. Keating, supra note 19 at §60.7.
34. Id.
35. Id.
36. Id. at §60.5.
37. Id.
38. Id. at §60.6.
39. Id. at §60.2.
40. Id.
41. To promote this worthy goal, Foley Hoag LLP will provide free reprints of “Civility” upon request. Please apply to Foley Hoag LLP (attention, Michael B. Keating, Esq.), 155 Seaport Blvd., Boston, MA 02210-2600.