CIVILITY AND ETHICS-

ARE THEY THE SAME

THING?-

“INCIVILITY’S TOP TEN!”

PRESENTED TO THE NORTHERN DISTRICT OF TEXAS

BENCH BAR CONFERENCE

January 27, 2017

DISCUSSION POINTS 1. PANELISTS’ BACKROUNDS

2. CORE VALUES OF THE

PROFESSION

3. TOP TEN EXAMPLES OF

UNCIVIL, UNPROFESSIONAL

BEHAVIOR

4. REPUTATION/INTEGRITY

Core Values

Kindergarten

Rules

-Don’t lie.

-Don’t steal.

-Don’t hit anyone.

ARE ETHICS AND CIVILTY

THE SAME THING

“Ethics are what a lawyer must

obey. Principles of

professionalism are what a

lawyer should live by in

conducting his or her affairs.” Paula L. Hannaford, The National Action Plan on Lawyer Conduct and

Professionalism: A Role for the Judge in Improving Professionalism in

the Legal System, 36 CT. REV. (SPECIAL ISSUE) 36 (Fall 1999)

http://aja.ncsc.dni.us/courtrv/cr36-3/CR%2036-3%20Hannaford.pdf.

“In all professional functions, a lawyer should zealously pursue clients’ interests within the bounds of the law.”

- Texas Rules of Professional Conduct Preamble ¶ 3

Duty of “Zeal in Advocacy”

Can Zealous Advocacy . . .

. . . become unprofessional

and unethical advocacy?

§ 82.037(a) Oath of Attorney

Every person admitted to practice law shall, before

receiving a license, take an oath that the person will:

(1)support the constitutions of the United States and this

state;

(2)honestly demean oneself [himself] in the practice of

law; [and]

(3)discharge the attorney ’s duty to the attorney’s [his]

client to the best of the attorney ’s ability; and

(4)conduct oneself with integrity and civility in dealing

and communicating with the court and all parties.

September 1, 2015

Truthfulness in Statements to

Others

Rule 4.01: A lawyer shall not knowingly –

• make a false statement of material fact or law

• fail to disclose a material fact when disclosure is necessary to avoid knowingly assisting client in fraud

The Texas Lawyers’ Creed –

A Mandate for Professionalism

Preamble

I am a lawyer. I am entrusted by the People of Texas to preserve and improve our legal system. I am licensed by the Supreme Court of Texas. I must therefore abide by the Texas Disciplinary Rules of Professional Conduct, but I know that professionalism requires more than merely avoiding the violation of laws and rules. I am committed to this Creed for no other reason than it is right.

I. Our Legal System A lawyer owes to the administration of justice

personal dignity, integrity, and independence. A lawyer should always adhere to the highest principles of professionalism.

1. I am passionately proud of my profession. Therefore: “My word is my bond.”

2. I am responsible to assure that all persons have access to competent representation regardless of wealth or position in life.

3. I commit myself to an adequate and effective pro bono program.

4. I am obligated to educate my clients, the public, and other lawyers regarding the spirit and letter of this Creed.

5. I will always be conscious of my duty to the judicial system.

“Perhaps ‘unethical’ was the

wrong word; I meant sort of

complex-legally complex…”

INCIVILITY

“Rudeness is the weak

man’s imitation of

strength.” Eric Hoffer, The Passionate State Of

Mind And Other Aphorisms, (NY:

Harper, 1955).

CIVILITY

“[Civility . . .] is not some bumper-sticker

slogan, ‘Have you hugged your adversary

today?’ Civility is the mark of an accomplished

and superb professional, but it is even more than

this. It is an end in itself. Civility has deep roots

in the idea of respect for the individual.”

Justice Anthony Kennedy, 1997 Speech, ABA

Annual Meeting

IS CIVILITY IMPORTANT?

#2: “Unnecessary Contention and

Sharp Practices Between

Lawyers.”

Dondi Properties Corp. v. Commercec

Savs. & Loan Ass’n., 121 F.R.D.284

(N.D. Tex. 1988) (en banc). (Court

adopts the Dallas Bar Association’s

Lawyers Creed as rules of conduct

which are henceforth to be followed).

LAWYER “REALLY” OUT

OF CONTROL!!

#1: Gross Incivility In Conduct Toward Judges and

Attorneys-Violations of (among others) Bar Rule 4-

8.4(d) for “relentless unethical and unprofessional

behavior towards opposing counsel.”

No. SC11-1356, Florida Bar v. Jeffery Alan

Norkin, Supreme Court of Florida, October 31,

2011. (administrative recommendation for 90

day suspension, followed by eighteen month

probation, enhanced by Supreme Court to

impose a two year suspension and a public

reprimand, and lawyer required to undergo a

mental health evaluation and participate in any

recommended counseling).

#3: “Uncivil, Abrasive, Abusive,

Hostile or Obstructive Conduct by

Lawyers.” NO. 07-4917 Huggins v. Coatsville Area School

District, et al, (E.D. Pa. 2009). (conduct in

depositions violated Disc. Rule 3.5(d), lawyer

shall not “engage in conduct intended to

disrupt a tribunal.” Lawyers required “to join

each other for an informal meal in an effort to

facilitate the repair of their professional

relationship.” Citing Shakespeare “And do as

adversaries do in law, Strive mightily but eat

and drink as friends.”

#4: “Lawyer’s Oath of

Civility Violated.” In the Matter of

Anonymous Member of the

South Carolina Bar, No.

26969, April 25, 2011.

CONDUCT PREJUDICIAL

TO THE ADMINISTRATION

OF JUSTICE

“I have a client who is a

drug dealer. . . . He

informed me your

daughter was detained

for buying cocaine. . . .

Does this make you bad

parents? This incident

is far worse than

CONDUCT . . .

the allegations your client is

making. I just thought it was

ironic. You claim this case is so

serious . . . . There is nothing

more serious . . . than having a

child grow up . . .turning out

buying drugs . . . . Think about it.

Am I right?” (E-mail to Opposing

Lawyer)

In the Matter of Anonymous Member

of the South Carolina Bar, No.

26969, April 25, 2011 (Lawyer’s Oath

of civility violated)

Rule 4.01

A lawyer shall not knowingly –

• make a false statement of material fact or law

• fail to disclose a material fact when disclosure is necessary to avoid knowingly assisting client in fraud

·

#5: “Lawyer’s silence

as to fraud by client in

real estate deal.”

· In re Austern, 542 A. 2d

680 (D.C. 1987)

#6: “Lawyer Directed Client to

Wipe Facebook Clean of

Damaging Evidence” Allied Concrete Co. v. Lester, 736 S.E. 2d

699 (Va. 2013); (client and lawyer

sanctioned $722,000 by court for

spoliation of evidence; bar suspended

lawyer’s license for five years). Rule

4.01, 8.04(a)(2)(3) Texas Rules of

Disciplinary Conduct; “My word is my

bond.”

#7: ARE HONESTY AND

CIVILITY ONE?

IS HONESTY OPTIONAL?

SOME SAY HONESTY IS

OPTIONAL- LYING CAN BE

VIRTUOUS!

Prof. William H. Simon’s

“Balancing Test” For Lying “[I]n situations where honesty conflicts with

other important values, there is no reason to

presume that honesty should prevail.”

Test: One should lie only when moral costs

of lying are “exceeded by the morally

relevant benefits.”

Virtuous Lying: A Critique of Quasi-

Categorical Moralism, 12 Geo. J. Legal

Ethics 433 (1999)

Simon’s Misrepresentation • He lied for a client to confront food

stamp administrator.

• Simon decided, on his own, the moral

costs of lying were “exceeded by the

morally relevant benefits.”

• Simon considered ramifications of lie

only to his client. Could others be

hurt by the lie?

What do the Rules Say?

Optional? • “[A] lawyer shall not knowingly: . . .make a

false statement of fact. . . or. . . fail to

disclose a material fact. . . .” Rule

4.01(emphasis added).

• “[D]discarding . . . candor in favor of . . .

zeal has serious costs for the institution of

the law.” 58 Case W. Res. Law Rev. 491,

510 (2008).

• Can Simon’s “balancing test” ever vitiate

rule 4.01?

#8: Voicemail: A Good Way to

Express Your “Inner” Thoughts?

RECORDED RAGE!!!!

#9: The Rainmaker: “Experienced”

Lawyer’s Advice to New Lawyer

“Try not to lie.”

“What they don’t teach you in law school can get you hurt.”

#10: BLOGS; FACEBOOK:

PRIVATE?

A lawyer represented to a judge that a continuance was necessary the next Monday and Tuesday because of a death in his family. Judge checked Facebook page. It showed news of the biggest party of the year that weekend.

Any Consequences?

Rule 3.03 Candor Toward the Tribunal

THE LEGAL PROFESSION’S

CONTRACT WITH THE PUBLIC THE PUBLIC GRANTS THE PROFESSION “AUTONOMY” FOR “PEER REVIEW,”

CONTROL OF MEMBERSHIP, SETTING OF STANDARDS.

IN RETURN, EACH MEMBER OF THE PROFESSION AND THE PROFESSION HAVE SOLEMN DUTIES:

1. TO MAINTAIN HIGH MINIMUM STANDARDS,

2. TO DISCIPLINE MEMBERS WHO FAIL TO MEET THOSE STANDARDS,

3. TO PROMOTE THE “CORE VALUES AND IDEALS OF THE PROFESSION,” AND

4. TO RESTRAIN SELF INTEREST TO SERVE THE PUBLIC PURPOSE OF

THE PROFESSION.

Neil Hamilton, Professionalism Clearly Defined, 18 No. 4 Prof. Law. 4,4-5 (2008).

Melissa H. Weresh, I’ll Start Walking Your Way, You Start Walking Mine: Sociological Perspectives On Professional Identity Development and Influence of Generational Differences, 61 S. C. Law Rev. 337 (2009).

CONDUCT-

EATING CROW -1

Al:

I reviewed your Motion to Compel.

You are absolutely correct in every

respect. The failure to serve these

responses timely is my fault and not

Ms. J____'s. You have not only made

a good faith attempt to resolve this,

you have been an absolute gentleman

in all of my dealings with you. The

fault is all mine.

EATING CROW-2

You are entitled to your

reasonable attorney's fees for

this motion. Please advise me

as to those fees and I will send

you my firm's check in payment

of those fees. The purpose of

this e-mail message is to

apologize and to stop the

creation of any more fees on

this issue.

EATING CROW-3

I will see you at the pretrial

conference tomorrow. I hope to

have the discovery responses to

you then. If you have any questions

or comments between now and

then, please do not hesitate to

contact me.

Thomas

Thomas - You know me well

enough to know that I don't want

attorneys fees and will not press

for them. What the heck does it

cost to change the caption on a

motion? Just want the

responses and I'll not make a big

deal out of it tomorrow.

EATING CROW-

RESPONSE-1

EATING CROW-

RESPONSE-2

The practice of law is hard

enough without our being

assholes about it. You and I

are old school and recognize

that. All I need is your

assurance of when responses

will be forthcoming and I can

deal with my client. Al

DEEDS, NOT WORDS

“We can be excellent without being

arrogant,

Successful without being boastful,

Tenacious without being contentious,

Self-critical without being defensive.

[A]t the end of the race there is a prize called reputation and . . . Our reputation is based on deeds, not words.”

Curry, Judge Richard L. “Lawyers of Conscience Enforce the Unenforceable.” Illinois Bar Journal 75 (1986): 120-121.