8 instilling civility to the practice of law hb lead-conf

Lead Litigation Conference 2013

November 14-15, 2013

Instilling Civility in the Practice of Law

The Speaker

Judge Lynne BattagliaMaryland Court of Appeals, 3rd Appellate Judicial Circuit

The Professional Lawyer “A professional lawyer is an expert in law

pursuing a learned art in service to clients and in the spirit of public service; and engaging in these pursuits as part of a common calling to promote justice and public good.”

Maryland Judicial Task Force on Professionalism, Reports and Recommendations 14 (2003), quoting ABA Professionalism Committee Rep., Teaching and Learning Professionalism 6 (1996).

In1999, the Conference of Chief Justices published a report entitled “A National Action Plan on Lawyer Conduct and Professionalism,” calling for the establishment of professionalism commissions under the authority of State Supreme Courts, observing that a majority of attorneys are competent professionals but that the . . .

The Professionalism Problem – Is it Merely a Perception?

In 2003, the Maryland Judicial Task Force on Professionalism documented through 22 meetings with lawyers in each Maryland county that there existed an actual significant decline in professionalism in the state evinced by incivility amongst members of the Bar:

Senior members of the Bar who had been practicing for as many as fifty years observed that professionalism had declined.

Other attorneys observed a similar decline in professionalism marked by “rancorous discovery disputes; a loss of trust between lawyers . . . ; a breakdown of the traditional mentoring of new lawyers . . . ; [and] a lack of civility in and out of the court room.”

Other unprofessional behavior observed included “rambo tactics” in litigation, failure to return phone calls, and increasingly contentious behavior by attorneys.

More Than Just a Perception: A Studied Phenomenon

Florida ◦ In 1993, the Florida Bar commissioned a survey of

Florida lawyers to formulate data regarding the characteristics of Florida lawyers, which found that lawyers had a negative attitude toward a “substantial minority” of their colleagues, finding that many could “not be trusted,” “ha[d] little regard for truth or fairness,” and were “pompous and obnoxious.”

◦ In 1995, the Florida Bar commissioned a follow-up study, which found that the most serious problem Florida lawyers faced was a lack of professionalism.

More Than a Perception Problem: Other States

Massachusetts◦ In 2002, the Boston Bar Association published a report entitled

“Task Force on Civility in the Legal Profession,” which conducted informal surveys of judges and clients, among others, which revealed the following uncivil and unprofessional behavior:

◦ Judges Observed: Personal attacks on the opposing party in memoranda submitted

to the court A far too prevalent practice of requesting sanctions

◦ Clients Observed: Insulting, demeaning, and arrogant behavior Sarcasm and yelling Failing to allow a deponent to respond to a question

◦ The Board of Bar Overseers, moreover, stated that it received two hundred complaints from the public per year pertaining to uncivil behavior by lawyers.

More Than a Perception Problem: Other States

◦ The Maryland Judicial Task Force on Professionalism observed a number of potential causes of unprofessional conduct including: A decline in the number of attorneys participating in Bar-

related activities. Clients unrealistic expectations and clients’ frequent view

that an attorney should act with the same degree of animus toward opposing counsel as litigants may feel toward each other.

Economic pressures on lawyers as a result of a declining economy and growing legal profession.

The use of technology decreasing face-to-face communication and instant reaction, without thought.

Media and advertising providing a skewed and negative view of the profession.

Causes of Uncivil and Unprofessional Behavior

Another potential cause of unprofessional and uncivil behavior included increasing diversity amongst members of the Bar, which eliminated its homogeneity, but some have suggested that there was never a golden age of civility, but rather, a time when the legal community was small, closed, and discriminatory, and lawyers’ perception of a “civil” time was maintained by precluding those with differing viewpoints from the Bar. As the Maryland Judicial Task Force on Professionalism observed in its survey of suburban lawyers:

Causes of Uncivil and Unprofessional Behavior

In observing a decline in professionalism, many states focused on the issue of declining civility, and while civility undoubtedly plays a significant role in professional behavior, professionalism is an amorphous concept marked by a number of other values.

Professionalism Beyond Civility

In Maryland, the Judicial Task Force on Professionalism found:

This variegated concept of Professionalism is reflected in Maryland’s “Ideals of Professionalism”:


Supreme Court of Florida’s Commission on Professionalism:◦ – “The essential ingredients of professionalism are

character, competence, civility, and commitment.”

Hawaii Supreme Court Commission on Professionalism:◦ “’Professionalism’” includes competence, civility,

legal ethics, integrity, and commitment to the rule of law, to justice, and to the public good.”

Professionalism Beyond Civility: Other States

Georgia Chief Justice’s Commission of Professionalism ◦ “The Commission espouses the values of

competence, civility, character, commitment to the rule of law, to the lawyer's roles as counselor, officer of the court and solver of problems, commitment to pro bono, community and public service, and to work for the improvement of the law and the legal system and to ensure access to that system.”

Professionalism Beyond Civility: Other States


The concept of professionalism is embodied in lawyers’ relationships with clients, opposing parties and their counsel, courts, colleagues in the practice of law, the profession, and to the public, as evinced by Maryland’s Ideals of Professionalism. For example it provides:

A lawyer should: “maintain an open and respectful dialogue with clients and opposing counsel.”

A lawyer should understand that “maintaining decorum in every venue, especially in the courtroom, is neither a relic of the past nor a sign of weakness; it is an essential component of the legal process.”

A lawyer should recognize “that the practice of law is a calling in the spirit of public service, not merely a business pursuit.”

This relationship component of professionalism is likewise reflected in the Lawyer’s Creed developed by Georgia’s Chief Justice’s Commission on Professionalism.


◦ Attorney Grievance Commission of Maryland v. Payer, 425 Md. 78 (2012) In an attorney grievance matter, the Court of Appeals

of Maryland observed that the attorney representing the Respondent engaged in unprofessional conduct when he referred to the trial court judge repeatedly by his last name only; accused the judge of incompetence; referred to the clients that Respondent had represented, who grieved, as “scoundrels” and “sleazy characters”; and characterized the case as “a case study in what occurs when a trial judge mindlessly sucks down material that is spoon-fed to him in a Proposed Order and then regurgitates it into his own Order without even bothering to check its accuracy.”

A View From the Appellate Bench: Instances of Incivility and Unprofessionalism – Name Calling

Writing for the Court, Judge Alan Wilner admonished counsel for what he characterized as “unjustified and unprofessional personal attacks on [the trial court judge], on the Assistant Bar Counsel who prosecuted the case, and on the complaint client,” and concluded that:

A View From the Appellate Bench: Instances of Incivility and Unprofessionalism – Name Calling

In101 Geneva LLC v. Wynn, 89 SEPT.TERM 2012, 2013 WL 5663815 (Md. Oct. 18, 2013), the Court of Appeals of Maryland considered, inter alia, whether a provision in an advertisement for a foreclosure sale imposing an additional fee on the successful bidder in the event of a default was permissible.

Counsel for the Trustees holding the foreclosure sale asserted a proposition in its brief that seemingly provided significant support for his position that such a fee was permissible . . .

A View From the Appellate Bench: Instances of Incivility and Unprofessionalism - Misrepresentations

Trustee’s Brief “As this Court clearly stated

in Simard v. White, 383 Md. 225, 859 A.2d 168 (2004),

Trustees acting under a power of sale contained

in a deed of trust must have discretion to outline the manner and terms of sale”...” Id. at 312, 859 A.2d at 200.” (emphasis added in brief).


Compare the assertion with the actual language of the case:

Language of Simard

“Trustees acting under a power of sale contained in a deed of trust have discretion to outline the manner and terms of sale, provided their actions are consistent with the deed of trust and the goal of securing the best obtainable price:”

Opposing counsel, in his brief, pointed out the absence of the conditional language and the addition of the word “must”; nevertheless, counsel for the Trustees made no correction to the Court of Appeals prior to, or during oral argument, and was admonished for it at oral argument:

THE COURT: “I think it’s incumbent on you to know that before you address the Court you should be making relevant corrections. Because I think that that was inappropriate to add a word to a quote of this Court and leave out the conditional.”


◦ In 2008, based on many of the findings of the 2003 Judicial Task Force, the Maryland Judicial Commission on Professionalism recommended a number of measures, many of which were adopted, including: Adopting Standards of Professionalism. Altering the new admittee course on professionalism to

include breakout sessions based on practice areas and emphasizing real concerns of client complaints by including speakers from the Attorney Grievance Commission.

Permitting new admittees to the Bar to sign up for mentoring at a required professionalism course, in which experienced practitioners are paired with newly admitted members of the Bar based on interest in particular practice areas and geography.

The Response to the Real and Perceived Decline in Professionalism: Maryland

Other measures taken include:◦ The establishment of the Professionalism Center,

supported in part by a five dollar assessment on all attorneys.

◦ The development of a professionalism course for new judges.

◦ The development of methods to address aging lawyer issues.

◦ The development of a symposium regarding the future of the practice of law.

The Response to the Real and Perceived Decline in Professionalism: Maryland

Nationwide, numerous commissions and committees have been implemented to restore professionalism to the practice of law.◦ Fifteen state-court sponsored commissions on professionalism.◦ Fourteen state-bar sponsored professionalism committees.

While all commissions and committees ultimately seek to enhance professionalism, their goals vary, ranging from broad-based goals of “encouragement of professionalism in the practice of law” (South Carolina), to more specific goals such as to “promote among the lawyers and judges . . . principles of integrity, professionalism and civility; to foster commitment to the elimination of bias and divisiveness within the legal and judicial systems; and to ensure that those systems provide equitable, effective and efficient resolution of problems and disputes for the people of Illinois.” (Illinois).

The Response to the Real and Perceived Decline in Professionalism: Nationally

“Macro” Approach◦ CLEs on Professionalism◦ Oaths, Creeds, and Codes Pertaining to Professionalism◦ Educational Programming◦ Participation in Law School Programming◦ Convocations/Symposia on Professionalism Topics◦ Video programming (E.g., “A Day in the Life of a Family Law Practitioner”)◦ Lawyers’ Oral History Project (Illinois)◦ Professionalism Day (New Jersey)◦ Writings, Essays, Articles, and other pieces on Professionalism

“Micro” Approach◦ Committees implemented to resolve professionalism complaints by clients,

lawyers, and judges (New Jersey and North Carolina) ◦ Professionalism/Community Service Awards◦ Coordinating and Providing Mentoring Programs◦ “Take Your Adversary to Lunch” (Georgia)◦ Judicial Response Committee (North Carolina)◦ Media Communication Programs (Indianapolis)

The Response to the Real and Perceived

Decline in Professionalism: Nationally

An underlying cause of incivility and unprofessional behavior is often the belief that zealous advocacy and professionalism are incompatible.◦ “Some lawyers believe that their duties to clients require

an absolutely no-holds-barred approach meant to make life as unpleasant as possible for the client’s legal adversaries. . . . Whether described as Rambo lawyers, pit bulls, avenging angels, or an opponents worst nightmare, these lawyers seem to believe that anything less will fail to maximize client objectives.” Peter R. Jarvis and Katie M. Lachter, The Practical Case for

Civility, in Essential Qualities of the Professional Lawyer 49 (2013).

Civility: Relationship Building While Being an Adversary

A 2007 Illinois Survey on Professionalism concluded that much of the unprofessional behavior was likely deliberate and used as a litigation tactic as evinced by the subtle tactics used (sarcasm) and the venue of the behavior (behind the scenes, rather than in open court).

Often, the client may drive unprofessional behavior, who may request, for example, an attorney to respond to discovery requests with cryptic discovery responses.◦ This client-driven problem was further evident in the Maryland

Task Force on Professionalism Report, which surveyed lawyers in rural communities who expressed concerns that clients were turning to outside counsel because they perceived the Bar in rural communities to be too collegial.

Civility: Relationship Building While Being an Adversary

Civility: Relationship Building While Being an Adversary The Maryland Ideals of Professionalism

encompass the values that being an adversary does not warrant unprofessional behavior, requiring lawyers to:◦ Understand that hostility between clients is not

grounds for a lawyer’s hostility or disrespect.◦ Demonstrate courtesy and respect in all

contexts, not just in the court room.◦ Respect differing points of view and show

empathy for others.◦ Not allow a client’s improper motives to influence

a lawyer’s action or advice.

Uncivil behavior diminishes not only the profession and its public perception, but diminishes the individual and those with whom he or she interacts.

Uncivil behavior tends to trigger a similar response from opposing counsel, making it less likely that the parties will agree to a resolution that may benefit the client.

Uncivil behavior and Rambo-style litigation tactics consume time and client resources; for example, time spent drafting e-mails, time spent drafting motions for sanctions, and time spent quarreling at depositions is time in which a client may be getting billed, but her cause not being furthered.

Uncivil behavior may alienate judges who, consequently, may be less sympathetic to a client’s case.

Uncivil behavior with clients may lead to a loss of clients, and worse, potential grievances resulting in disciplinary measures against the attorney.

The Practical Case for Civility

Because Rambo-style litigation may occur at the behest of a client, it is essential that these practical advantages are explained.

What if, despite these explanations, a client insists in proceeding in a difficult manner—for example, the client insists that the lawyer grant no extensions or extend any other courtesies that are not otherwise required?

Explaining the Practical Case for Civility to a Client

Judges as role models of professionalism Judges publishing an attorneys unprofessional

behavior in their written opinions:◦ Recall Attorney Grievance Commission of Maryland v.

Payer, in which Judge Wilner, writing on behalf of the Court of Appeals of Maryland, admonished counsel for his name-calling in his brief to the court, citing specifically Maryland’s “Ideals of Professionalism”: “More recently, by its adoption of Ideals of Professionalism, we

have explained that lawyers are constrained by certain precepts of professionalism, which ‘require[ ] civility in all dealings, showing respect for differing points of view, and demonstrating empathy for others’ and an understanding that “’a lawyer can advocate zealously a client's cause in a manner that remains fair and civil.’”

The Role of the Judicial System in Maintaining Professionalism

Rule Based Sanctions:◦ Maryland Judicial Task Force recommended the adoption of

Maryland Rule 1-342: “If the court finds that the conduct of any counsel violates the Standards of Professionalism, the Court may impose sanctions as the Court deems appropriate, including the assessment of a monetary civil penalty, a monetary award, or both.”

Concerns raised to the Maryland Task Force on Professionalism regarding proposed rule 1-342:

It could diminish other rules, including the Rules of Professional Conduct and a judge’s exercise of the contempt power.

It could be used to harass lawyers. It could further escalate already contentious disputes. The rule could become a “sword” rather than a “shield,” in that

unprofessional lawyers could file frivolous motions for sanctions and only further “rambo-style” litigation.

It could unintentionally curb zealous advocacy.


Courts using their inherent authority to regulate the legal profession to impose ad-hoc sanctions for unprofessional conduct:

Sahyers v. Prugh, Holliday & Karatinos, P.L., 560 F.3d 1241, 1243 (11th Cir. 2009)

Sahyers was discharged from her employment as a paralegal at a law firm and retained counsel to represent her in an action against her former employer under the Fair Labor Standards Act for unpaid overtime. Per Sahyers’s instruction, Sahyers’s attorney made no attempt to give notice of her claim to the defendant, nor did Sayhers attempt to collect the unpaid overtime on her own, but instead, filed the action in court. Sahyers recovered the unpaid overtime, but was denied attorney’s fees for which prevailing Plaintiffs are generally entitled under the FLSA, because the United States District Court determined that the failure to provide the defendant notice of Sahyers’s claim warranted denying the payment of her attorney’s fees.


In affirming the judgment of the District Court, the Eleventh Circuit opined: “A federal court may wield its inherent powers over the lawyers who

practice before it. This control derives from a lawyer's role as an officer of the court. . . . The district court's inherent powers support its decision here. Defendants are lawyers and their law firm. And the lawyer for Plaintiff made absolutely no effort-no phone call; no email; no letter-to inform them of Plaintiff's impending claim much less to resolve this dispute before filing suit. Plaintiff's lawyer slavishly followed his client's instructions and-without a word to Defendants in advance-just sued his fellow lawyers. As the district court saw it, this conscious disregard for lawyer-to-lawyer collegiality and civility caused (among other things) the judiciary to waste significant time and resources on unnecessary litigation and stood in stark contrast to the behavior expected of an officer of the court. The district court refused to reward-and thereby to encourage-uncivil conduct by awarding Plaintiff attorney's fees or costs. Given the district court's power of oversight for the bar, we cannot say that this decision was outside of the bounds of the district court's discretion.”


Criticisms of the Sahyer decision:◦ Civility and Collegiality- Unreasonable Judicial

Expectations for Lawyers as Officers of the Court, 2 St. Mary's J. Legal Mal. & Ethics 324 (2012) Because of the poorly-defined “officer of the court”

standard, the threat of such sanctions may curb a lawyer’s obligation of zealous advocacy.

While it may be universally agreed that promoting civility is a noble cause, what constitutes incivility is a subjective judgment that may fall into a gray area.

The Role of the Judicial System in

Maintaining Professionalism

Permitting clients to recover their attorney’s fees when a lawyer acts unprofessionally:◦ In Abramson v. Wildman, 184 Md. App. 189 (2009), the Court of Special

Appeals of Maryland upheld a $13,000 damages award on a breach of contract claim by a client against his attorney; the $13,000 represented the amount of attorney’s fees charged. The Plaintiff alleged that attorney Abramson breached his contractual obligation to represent him in a professionally competent manner by inter alia: Presenting a false financial statement to the trial court judge. Failing to advise him of settlement options. Failing to properly advise him of the merits of his case.

The court, quoting 7 Am. Jur. 2d Attorneys at Law with approval, stated:


Questions

Judge Lynne Battaglia Maryland Court of Appeals, 3rd Appellate Judicial Circuit 410.260.1565 [email protected]

Speaker Contact Info

Documents

8 instilling civility to the practice of law hb lead-conf