A post on the LPB, referring to this Michigan disciplinary ruling, brought the topic of civility to mind.
Since I began paying attention to the legal business in 1984,a few themes have remained constant in talk about the state of the profession. Work-life "balance," the future of "medium-sized" firms, and the "decline of civility" have all been reliable themes. (The number of women an minority partners at big, rich firms is another, but it is a more complicated subject than the others, and I exclude it here.)
The ceaseless nature of the discussion suggests that these are not problems at all, merely things that some people don't like and therefore like to complain about. That seems to me right for the "balance" and "firm size" problems, and half-right for civility.
The three topics differ in their relation to market forces. If one takes a basically economic point of view, as I do, then problems of balance and firm size are not really problems at all. Balance refers to nothing more than individual choices between work and leisure. Different people will make different choices. If there is demand for less work and less pay, one would expect firms to provide that option. In various ways, such as hours-based compensation and bonuses, non-equity "partnerships," permanent "special counsel" status, and so on, large firms do offer a menu of choices, and no one has to work in them anyway. Firm size is not really a professional problem at all; it is simply a question of efficiency.
Civility is partly different. First, one needs to define the term with at least rough precision. From a utilitarian point of view, it is tempting to define uncivil conduct as that by which a lawyer (i) deliberately (ii) increases the cost (psychic or otherwise) of an interaction (iii) in a way unrelated to the merits (economics of a transaction or elements or defenses of a claim); and (iv) without producing an offsetting benefit defined relative to the purposes of the relevant laws.
This is not a very satisfactory definition. For example, under it the lawyer who refuses to agree to an extension of time to file a brief due, under the rules, on December 26 does not act uncivilly. There is a systemic interest in resolving disputes quickly, and insisting on punctual adherence to deadlines advances that interest. Also, in my view, a defense lawyer who cross-examines the complainant in a rape case and tries to depict her as a slut would meet the definition, as does the lawyer who attempts to discredit a witness she knows to be honest and reliable. The defense bar would scream bloody murder if the bar as a whole tried to sanction such conduct, of course, so it is not a helpful definition as a practical matter, whatever its theoretical appeal.
(Of course, one could play with the definition, so that the merits of the case (criterion iii) included the perceived credibility of the witness, but that would take a lot of the teeth out of the definition--it would essentially gut it as applied to clients rather than opposing counsel. It is interesting to note that the Michigan opinion linked above states that the uncivil conduct in question had no legitimate tactical purpose, implying, perhaps unintentionally, that at least some tactical incivility might not be sanctionable.)
But let's set aside the problem of hard cases under the definition--any definition will have such cases, and if civility is impossible to define, incivility is easy enough to spot (look here, for a good example). I am more interested in going after the "easy" cases, and possibly working outward from them toward an acceptable approach to hard cases.
As a practical matter, the definition mentioned above treats uncivil conduct as an externality--a harm external to the merits of the interaction. Thinking of the issue that way helps think about how one might deal with the topic.
For example, the externality approach implies a focus on litigation and purely adversarial transactions than on lawyering as such. Where parties have an interest in doing a deal, clients will feel harm caused by obstreperous conduct. That essentially internalizes a significant fraction of the cost of incivility, meaning that clients have an incentive to discipline lawyers. Reputational effects should constrain uncivil conduct to some considerable extent. As with the first two problems, one should expect the market to work here.
Litigation and adversarial transactions (hostile deals, some bankruptcy work) are probably different. Here the harms from uncivil conduct are unlikely to be internalized. They are more likely to make the other side more willing to settle, generating positive returns to incivility that will tend to perpetuate uncivil conduct and make it worse over time.
The trick is to force uncivil lawyers to internalize the cost of their incivility. One approach, reflected in the disciplinary opinion linked above, is the formal system of discipline. But that system is not set up to handle the volume of uncivil acts one suspects occurs in practice, and it may be costly relative to alternatives.
Here are two ideas to pursue if one were serious about going after uncivil conduct (which, I admit, I may not be--I'm ambivalent on the subject). The first would apply only in litigation and would entail reputational sanctions for uncivil discovery conduct. A jurisdiction might set up a system in which judges or magistrates issued the equivalent of demerits to uncivil lawyers. Lawyers could be required to disclose these to clients. To offset the very real possibility that some clients would see the demerit as indicating a desirable level of aggression, a lawyer who offended more than once could be presumed to have acted unreasonably and thus bear the burden of showing why the lawyer's client should not automatically lose some dispute. Disclosure of that consequence would make clients reluctant to hire misbehaving lawyers, thus introducing an economic cost to uncivil conduct.
A second option would be to create an administrative cause of action where lawyers could complain against other lawyers, the complaint to be resolved in a binding administrative proceeding with a relatively modest ($5K or so) penalty cap. To limit frivolous complaints I would endorse a loser pays rule for both costs and fees. This option, unlike the first, could extend to all lawyers, not just litigators. I would define the elements of the complaint by reference to the elements of the cause of action of intentional infliction of emotional distress.
Both ideas work from the premise that uncivil behavior is at least free to the lawyer engaging in it. Probably it produces positive returns in terms of blowing off steam, creating a wealth-enhancing reputation for aggressiveness, and, possibly, getting better results for clients. The only way to attack such a problem is to increase the expected cost of engaging in it. If the bar is unwilling to do that--either in the form of the suggestions above or in some other way--then it would be better to admit that talk about incivility has no practical point.
DM
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