Friday, November 19, 2010

Restoring Dignity To The Law - Lawyers Part 1

In previous posts (Part 1 , Part 2) I saluted the new blog Restoring Dignity To The Law and it's mission to restore dignity to the law.  I also discussed some ideas about how to restore dignity to law students.  But what if you are already a practicing lawyer?  Here are some ideas about restoring dignity to the practice of law:

1) State Bars Should Clarify The Limits Of Zealous Advocacy
One of the aspects of dignity in the profession is lawyers treating other lawyers with dignity.  However, this is sometimes in conflict with a lawyer's responsibility to zealously advocate for the client.  For example, if abusing the other side gives your client a procedural advantage, does your duty to the client require you to abuse the other side?  There can also be a financial element - some lawyers seem to want to anger the other side so that the other side becomes more aggressive legally, which in turn makes more work for the lawyer.  Further, some lawyers just seem to like being angry - and like when things are really adversarial - they enjoy the conflict.

However, we really have no way of identifying these behaviors and no effective procedure for putting pressure on the lawyer to "dial it back a little."  The ethics rules as they are currently embodied are a very, very blunt tool when it comes to something like civility between lawyers.  They can come down hard on the real outliers, but they are pretty useless in preventing the day-to-day purposeful irritations that are so lethal to the dignified practice of law.

Here's one specific example, right now lawyers are instructed to "zealously advocate for their clients within the bounds of the law."  That's OK as far as it goes, but it does not take into account the lawyer's responsibility to each other and the system itself.  Here's some language to consider - A lawyer's primary responsibility is to represent the client, but this representation should take place in the context of a lawyer's responsibility to the courts and other lawyers at the bar.  Consequently, when presented with a first course of action that provides the maximum benefit to the client at the expense  of the principles of civility, dignity, and/or mutual respect for other lawyers and the court as opposed to a second course of action that provides substantially the same benefit to the client, but abides by those principles, a lawyer should follow the second course of action.

This should not be enforced by the grindingly slow, very damaging ethics commissions, but by something else that is more immediate.  Something that is not such a huge sanction that it puts the attorney in a defensive frame of mind, but something that clearly conveys the disapproval/shunning by peers. I'm not sure what.  Maybe the local bar publishes a "weekly jackass list" or something that details how the lawyer in question is being a jerk.  Maybe suspend them from local bar associations or make them apologize to the other side and promise not to do it again.  Maybe the other members of the bar association refuse to talk to them until they apologize and change their ways?  From viewing how people react to being accused of ethics violations, it's "societal" pressure that can really change someone's view.  Being accused of an ethics complaint is too huge of a threat.  Instead of making a jerk act nicer, an ethics complaint just locks them into defending the behavior.  They become a jerk with a lawyer - not the better person you were looking for.

2) Judges Should Recognize And Act To Preserve Dignity
Your honor, I know that your schedule is very busy - mine is, too - but you really need to be more active and accountable in preserving dignity between lawyers.  I recognize that the rules of judicial conduct are vague and consequently that you live in perpetual concern/fear that someone will look at what you do and call it wrong.  With vague rules, it is very difficult to defend your action as being clearly within the rules.  Consequently, it may make you feel better about not doing anything.  After all, if you do nothing, then no one can say you did anything wrong.  Also, when you seek to sanction someone, it just makes more work for you on your already overloaded schedule.

Frankly, I agree with you - we should 1) address the rules of judicial conduct to more clearly give judges a basis for taking action against behavior that offends civility, dignity, and/or mutual respect, and 2) give you more in the way of judicial resources in general so that you are not so pressed for time.

Here is what I would like to see in return.  First, I would like you to be much, much, much more active in managing discovery.  I want you to be deeply, intimately, involved.  That's how it will become clear to you just how deceptive the other side is being when they withhold and spring something on us - or are abusing the rules in some other way.  A magistrate just doesn't cut it.  Even if the magistrate were involved to the right extent, by the time they communicated their outrage over the abuses to you, the rage would be muted and the sanction would be lessened.

In the end, by failing to sanction this behavior, you endorse it.  These lawyers go back to their clients and brag about "playing hardball" with the other side - and clients listen and vote with their dollars.  That is, if you see behavior that offends dignity today and you decline to call it out and sanction it, then expect it - EXPECT IT - to become the norm.  Because it will.  Maybe not today or tomorrow, but after a few years lawyers will be expected and required to practice that way in order to keep their client base.  Clients are always looking for a lawyer that plays "harder" - you, your honor, are the only one who can stop the race to the bottom. 

Start today.  Discuss it with your chief judge and get them on board.  Announce what you expect from litigants when they enter your courtroom, and then enforce it - enforce it, by god.  No more nice speeches that the other side just ignores and then you let them get away with it.  I mean, come on now, there are several firms - including a very large firm that I know of - that in case after case commits discovery abuse after discovery abuse.  However, they are very rarely sanctioned - and it does help their clients in some cases.  Only you can stop it, your honor - and it's high time.

3) Stop The Erosion of the Attorney/Client Privilege
The attorney/client privilege is under constant attack - and the scope just seems to keep getting hit.  The attorney/client relationship needs to be treated/regarded more as a sacred trust than and as a business transaction.  Examples of undignified erosion include 1) allowing the other side to discover through cell phone records when the witness called the attorney and for how long, as well as where the witness was located and whether the witness was moving at the time, 2) allowing the disclosure of bills - bills including fairly deep descriptions of what was being worked on by the attorney - so that the other side can see in general what the attorney was working on and for how long in preparing the case, 3) this one is recent - and only in Europe, at least for now - removing the attorney/client privilege for in-house counsel.  That makes the lawyer "just another employee" - and that is unacceptable.

I have a few more ideas that I will present in a later post.


  1. On civility, I disagree. It would lead to a huge amount of energy being spent over little disputes.

    For example, it's uncivil for an attorney to refuse to take or return the other fellow's phone call. And it happens a lot. But if an issue is made out of it, the "jackass" will surely claim that he never got the call. Or that a family member was ill. Or that he was on trial.

    There just isn't enough time to adjudicate all the little disputes like this.

  2. Oh, and don't forget that jackass lawyers would regularly bring phony civility claims against their adversaries.

  3. Its the old psychology of too many rats : they start eating each other when the population reaches a tipping point. Same could be said about attorneys.

  4. 12:50 and 1:02 - It would certainly be wasteful if we adjudicated these things, but adjudication is not the right process anyway, as I mention above. I don't want to expand the number of things that we take to the ethics board. Instead, I think that the ethics board should clarify its standards and then we should come up with some sort of peer pressure method to get lawyers to keep it civil. Here's what I am going for. 100 years ago there was a much smaller bar and lawyers discussed other lawyers regularly - and with judges. Your reputation to other lawyers *mattered* - and there were repercussions if you were a jerk. Today, the bar is so big and there does not seem to be any gain in acting civilly. We need to set up some kind of system that incentivizes civility - although I'll admit that is hard to do.

  5. 7:35 - I think that the number of lawyers is an issue, but I think it's more of a "size of bar" issue than a mis-match of supply and demand. The bar has grown so big that it is tough to bring social pressure on someone to limit their acts of incivility - and there really isn't anything else that has stepped in.

    Shakespeare's classic statement on lawyers that they "Stive mightily, but eat and drink as friends." Is more than a statement that lawyers don't attack each other after the case - friends re-enforce the social norms of the friend group. The friend group has certain behaviors that it views as unacceptable - and people violating those behaviors are subject to negative feedback and disdain from the others. This causes the offender to seek to put things right with the offendee so as to remain in the good graces of the group.

    Obviously, the bar has grown large enough so that the group is too dispersed to effectively bring societal pressure. However, I wonder if that may be changing in the near future as our communication tools bring us closer together. Maybe a lawyer had a "reputation" page on a service were other lawyers that have dealings with them can leave comments? The original lawyer can add a rebuttal, but the comment is still there? Maybe the lawyers also give them a "reputation" rating? A rating that can be time-sensitive, much like an e-bay rating? I'm trying to find something that makes civility and reputation matter again.