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Commonwealth of Massachusetts

February 2001

Please Please Me: Voluntary Civility Standards for Lawyers

by Cathleen Cavell, Assistant Bar Counsel

 

Ask any lawyer in practice for more than a decade about how law practice has changed. The response is likely to include a reference to the pervasive erosion of courtesy and collegiality in lawyers' daily interactions. It is also frequently observed that, as the practice of law has evolved from a profession to a business, we have substituted impersonal or abrasive confrontations for congenial professional relationships.

Bar Counsel receives many complaints of rude and offensive conduct by lawyers toward fellow lawyers, clients, opposing parties, court personnel and others. Such behavior includes inappropriate language, angry outbursts and threatening statements in court houses, law offices, telephone conversations and written correspondence. While such conduct does not always constitute a violation of the Massachusetts Rules of Professional Conduct, it is unprofessional and invariably diminishes respect for the profession.

Abusive behavior can escalate to the point where it violates Mass. R. Prof. C. 8.4 (d) and (h), the rules prohibiting conduct prejudicial to the administration of justice or conduct which adversely reflects on fitness to practice. A lawyer who disrupted an administrative disciplinary proceeding against his client by characterizing the tribunal as a "kangaroo court", ridiculing the tribunal's rulings, and asking the victim degrading, irrelevant questions was privately reprimanded for his conduct. Private Reprimand no. 91-21, 7 Mass. Att'y Disc. R. 356. A lawyer was publicly censured for misconduct including "intemperate, discourteous and obstreperous remarks. . ." resulting in a finding of criminal contempt. Matter of Cavicchi, 3 Mass. Att'y Disc. R. 37, 38 (1982) A lawyer was sanctioned for "screaming obscenities" and threatening to "get" an adversary and his counsel, as well as other misconduct. Matter of Kneeland, 2 Mass. Att'y Disc. R. 140, 141 (1980). Another lawyer received a private reprimand for accosting a witness adverse to his client and ordering her to leave the witness assistance room where she was waiting to see the District Attorney. Private Reprimand no. 86-23, 5 Mass. Att'y Disc. R. 459. An admonition was administered to a lawyer who, insulted by another attorney's vulgar language after a real estate closing, started a fist fight in the presence of parties and his own staff members. Admonition no. 97-28, 13 Mass. Att'y Disc. R. 911.

Many reasons are advanced for the phenomenon of declining civility: technological innovations which intensify the pace and stress of practice; competition for clients; expansion of law firms, courts, and numbers of judges, reducing the incentive to maintain cordial relationships with other counsel because the lawyers may not meet again; the elimination of motion sessions; the mushrooming of discovery, perhaps fostering discovery abuse and sanctions; the decline of mentoring and apprenticeships in which older lawyers passed down a tradition of civility to younger lawyers; and the toleration of uncivil behavior by judges. Whatever the cause, incivility can make the practice of law seem intolerable.

Beginning in the late 1980's, in response to the perceived decline in courtesy throughout the legal profession, many jurisdictions and bar groups adopted voluntary professionalism goals and standards, with special emphasis on professional conduct in litigation. Some of the conduct described and proscribed in these codes is also prohibited by rules of attorney ethics. However, unlike ethics rules, the codes are not mandatory but aspirational, and non-compliance carries no sanctions. They are phrased in terms of intentions and goals (ie. "we will endeavor" or "a lawyer should not") instead of requirements. Each code expressly eschews the use of its standards as a basis for additional litigation or penalties.

Examination of several of the professionalism codes, including those adopted in Massachusetts, reveals consistent principles which inform all of the attempts to develop and maintain professional standards of civility. Dozens of these codes are listed at the "Professionalism" heading on the Web site of the ABA Center for Professional Responsibility, www.abanet.org/cpr/professionalism.html.

In 1989, the Massachusetts Bar Association adopted a Statement on Lawyer Professionalism which incorporated elements of the ABA Model Rules of Professional Conduct, judicial canons, civility standards and general obligations of good practice. The MBA Statement does not focus on specific behavior or civility as such, but it sets forth general goals for the conduct of judges and lawyers. These include, for example, the following: "Consistent with his or her responsibility as an advocate, a lawyer should be guided by the principle that representations on behalf of a client or a cause ought to be characterized by good faith and honesty." The MBA Statement is at www.law.stetson.edu/litethics/massbar.htm.

In 1997, the Boston Bar Association promulgated "Civility Standards for Civil Litigation," which reiterate the general principles for lawyer conduct set out in the earlier MBA Statement. These civility standards also specify guidelines for situations frequently occurring in litigation practice. They include sections on service of papers ("A lawyer who has obtained a short order of notice and knows the identity of or can reasonably identify the opposing lawyer should immediately notify that lawyer by telephone or by facsimile") and document demands ("a lawyer should not strain to interpret the request in an artificially restrictive manner in order to avoid disclosure"). The BBA Civility Standards are found at www.bostonbar.org/dd/civ.htm.

Two other codes worth examining are those for the United States Court of Appeals for the Seventh Circuit and the D.C. Bar. In 1990, a committee of nine judges and lawyers appointed by the Chief Judge of the U.S. Seventh Circuit began a circuit-wide inquiry to determine whether civility problems existed in litigation practice in that circuit. Ninety-four percent of the judges surveyed noted civility problems in lawyers' relations with each other, and ninety-four percent of lawyer respondents chose discovery as the principal setting for uncivil conduct. The lawyers polled mentioned strategic non-compliance in discovery, including obstructing access to documents; burdensome requests for documents; refusals to make reasonable scheduling agreements; one-upmanship and gamesmanship; sarcasm as a weapon; failure to cooperate; and winning by trick at any cost.

In its final report in 1992, the committee proposed adoption of voluntary Standards for Professional Conduct in the circuit. In 1993, the Seventh Circuit approved the standards, the first circuit-wide voluntary civility code. To qualify for admission to practice before the Seventh Circuit, a lawyer must state that he or she has read and will abide by the Standards. The Standards are integrated into course materials at many law schools within the circuit.

The Seventh Circuit Standards encourage lawyers to refuse to indulge in offensive conduct directed to other counsel, parties, or witnesses, even when called upon by a client to do so. The standards also encourage agreements to reasonable requests for extensions of time, notice to opposing counsel before causing entry of default or dismissal, good faith efforts by the lawyer writing up an oral understanding to state the agreement accurately and to explicitly advise other counsel in writing of any changes, and cooperation with scheduling needs of other counsel. In addition, the Seventh Circuit Standards include civility guidelines governing lawyers' duties to the court and judges' duties to lawyers and to one another.

The Seventh Circuit Standards are integrated into course materials at many law schools within the circuit. The Seventh Circuit standards form the basis for many other professionalism codes, including Guidelines for Conduct, passed by the ABA's Section of Litigation in 1998. These ABA Guidelines were expressly intended to be an ABA-endorsed model code of civility. The ABA Litigation Guidelines are available at www.abanet.org/litigation/litnews/practice/guidelines.html.

In June 1996, the D.C. Bar Board of Governors adopted the D.C. Bar Voluntary Standards for Civility in Professional Conduct. Written with eloquence and expressly intended to apply to other areas of practice as well as litigation, the D.C. Bar Standards stress the lawyer's duty to educate the client about the lawyer's professional obligations. For example, two of the D.C. Bar Standards provide:

We [attorneys] accept primary responsibility, after consultation with the client, for making decisions about procedural agreements. We will explain to our clients that cooperation between counsel in such matters is the professional norm and may be in the client's interest. We will explain the nature of the matter at issue in any such proposed agreements and explain how such agreements do not compromise the client's interests.

We [attorneys] will honor all understandings with, and commitments we have made to, other attorneys. We will stand by proposals we have made in negotiations unless newly received information or unforeseen circumstances provide a good faith basis for rescinding them, and we will encourage our clients to conduct themselves in accordance with this principle..

The D. C. Standards are at www.dcbar.org/attorney_resources/task.html.

As the list of existing codes demonstrates, adoption of civility standards alone cannot eliminate offensive conduct or result in renewed respect for the legal process. Bar associations in Massachusetts should consider revisiting or reemphasizing this matter. Sixty-nine percent of the lawyers attending a forum entitled "Civility in the Massachusetts Legal Community" at the January 2000 MBA annual meeting in Boston answered that a code of professional behavior would help manage the perceived lack of civility among Massachusetts judges and lawyers.

The challenge lies in persuading the members of the legal community to apply the standards set out in the civility codes to their own conduct and to communicate the expectation that other lawyers and judges will adhere to them. The codes will then provide a framework for training new lawyers in voluntary higher standards of practice. We all must be willing to enforce norms of civilized behavior not only on our adversary but on ourselves.



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