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44th Street Notes


Civility and Professionalism


Oct 1997

“I’m Paid to Be Rude,?was the startling headline of a recent New York Times Op-Ed piece, under a picture of two lawyers engaged in fisticuffs. The lack of civility among lawyers, exemplified by this article, along with other “self-inflicted wounds,?are among the major reasons why lawyers today are held in such low regard by many.



Much of this criticism is our fault. We sometimes engage in conduct for which we would punish our children; we police ourselves in secret; we take action in our self-interest that, while arguably lawful, smacks of impropriety; and we are perceived as not wanting to change or improve the system. While some of these criticisms are unfair, others are accurate. As lawyers, and as a bar association, we should take steps to try to improve our image.



Civility would be a good place to start. In fact, earlier this year, when we asked the chairs of 30 of the city’s largest law firms to identify problems faced by the profession, a lack of civility was among the first issues raised. While a Code of Civility, as has been adopted in many jurisdictions, and as is proposed for New York, will not result in an immediate halt to boorish behavior by attorneys, it is one useful step in addressing the problem.



Passionate Advocacy Does Not Equate With Rudeness



Lawyers should be disabused of the notion, articulated by the well known attorney who authored The New York Times article, that “civility may not always be the right reaction.?This is wrong. That our society has become more confrontational does not mean that legal adversaries should resemble Mike Tyson and Evander Holyfield. Rather, attorneys should take the lead and set a tone of civil discourse for society as a whole. Their actions should demonstrate that disagreement--whether in a court room, a board room, or in the halls of the legislature--does not require disrespect; that passionate advocacy does not equate with rudeness; and that one’s client’s dislike for the opposing side should not translate into discourtesy to a fellow lawyer or the court.



Lawyers have an obligation to fight vigorously for the rights of their clients, utilizing every advantage the law allows. This does not mean yelling at an adversary on the telephone, failing to appear at court engagements, or using vulgarities during depositions--as occurred in one high-profile case with such frequency as to cause the attorney engaging in such conduct to be denied permission to appear as counsel in the case. Representing one’s client to the fullest does not justify casting aspersions on the integrity of opposing counsel, “forgetting?to red-line a new draft of an agreement, or serving papers late on a holiday weekend so that the other side will have less than the usual amount of time to respond.



If members of the bar call each other names, fail to appear at required engagements, or otherwise act like children, how can we at the same time demand respect for the profession? Existing ethical rules already require lawyers to be courteous and civil. Perhaps a code of civility will add more useful admonitions. More importantly, civility requirements should be enforced by judges, civil conduct insisted upon, and members of the bar should be urged--and if necessary required--to conduct themselves accordingly.



Open Attorney Discipline Proceedings



Confidence in the legal profession would also be increased by opening to the public attorney discipline proceedings. When a grand jury--whose proceedings are conducted in secret--finds there is probable cause that the defendant committed a crime, the resulting trial is public. But when a Departmental Disciplinary Committee concludes there is probable cause that a lawyer has committed misconduct, the subsequent trial remains secret. Why? The Bar’s insistence on secrecy throughout the proceeding leads the public to question whether attorneys are being properly policed, and to resent the privileged status enjoyed by lawyers.



Pay to Play



The practice of lawyers making political contributions in return for a hoped for “payoff?-municipal finance work, a patronage appointment, or some other “political plum?-further tarnishes our profession. The fact, as the newspapers remind us everyday, that many non-lawyers also make political contributions in return for expected favors--or that the practice may not be illegal--does not make “pay to play?right.



In this connection, this Association recently achieved an important first step toward having this practice declared impermissible. In August the American Bar Association House of Delegates, acting on a report and recommendation of the Association’s Committee on Government Ethics (Joel Berger, Chair, and William Josephson, Sub Committee Chair), condemned the conduct of lawyers making campaign contributions to public officials in return for being considered eligible for professional services, including municipal finance engagements, and called upon judicial rule-making authorities and lawyer disciplinary agencies to enact rules that will discourage such conduct. We are now urging the State Administrative Board to adopt such a rule for New York lawyers. (See accompanying story on p. 20.)



The inefficiencies of the litigation system--and the perception that lawyers like it that way--add to the negative opinion of lawyers. In point of fact, lawyers who work on committees of this Bar Association--leaving their clients?interests at the door in doing so--spend hundreds of thousands of hours finding ways to make the litigation system more efficient, implementing ADR reforms, and improving virtually every other aspect of the law as well. But their good deeds, and the efforts of the thousands of pro bono volunteers who help the indigent, are too frequently overshadowed by the relative handful of “Rambo?lawyers, others who wrongfully equate rudeness with effective advocacy, and those few members of our profession who seem to act only to protect themselves, not the public good.



Too much of the profession’s negative image is of our own making. We should identify and try to call a halt to those practices that cause a loss of respect. I hope you will join me in this effort.





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