Civility 101 for Lawyers: Don’t Cross the Line Between Zealous Advocacy and Incivility
The need for civility among lawyers is an age old topic. By nature the legal system is an adversarial one in which there are winners and losers. Civility factors into not whether you win or lose, but rather how you play the “game.” There is not a bright line rule to determine when zealous advocacy becomes inappropriate incivility, but recently a few federal court judges have provided some significant commentary.
While there is routine coverage of lawyers behaving badly, it is more unusual to learn about a judge sending lawyers, on both sides of a case, back to the drawing board to remove inappropriate language from their filings. In fact, that is precisely what United States District Court Donald L. Graham did recently in an order in which he quotes from The Florida Bar Oath of Admission and The Florida Bar’s Creed of Professionalism, both of which require integrity and civil conduct.
After referencing various comments contained in the plaintiffs’ and the defendant’s pleadings related to pending Motions for Partial Summary Judgement and Summary Judgement, Judge Graham opines that the filings “read like a fictional novel or a script from a tabloid Jerry Springer television show.”
Judge Graham also provides excerpted language from the pleadings related to a Motion for Sanctions and concludes that the filings are “riddled with inflammatory language and insults directed at the parties and their counsel.” He further opines that “A professional pleading does not cast aspersions toward attorneys, parties, or witnesses.”
Ultimately, the order strikes all of the pleadings and the parties are given five days to omit inappropriate language and refile the pleadings, “mindful of the ethical and professional expectations placed on all members of the Florida Bar.” The order also directs the attorneys who prepared and filed the original pleadings to submits filings that discuss whether the Court should refer the matter to Court’s Committee on Attorney Admissions, Peer Review, and Attorney Grievance. The ABA Journal has additional coverage and provided the order.
In another recent federal case, Judge Royce Lamberth admonished an attorney and her law firm for incivility during a Zoom deposition in which the attorney referred to the opposing counsel as “combative, aggressive, and unhinged.” Although the attorney and her firm apologized to the Court, Judge Lamberth was disturbed by the inappropriate characterization of opposing counsel, and wrote, “The Court cannot allow such misconduct to occur without at least rebuking counsel.” He did note the remorse and did not refer the attorney to disciplinary authorities. Reuters and Bloomberg have additional coverage.
Both cases are recent reminders of the need for civility not only as a measure of general decency, but also avoid the cost and other repercussions of judicial admonishments and sanctions. One wonders whether the stress of the pandemic has caused shorter fuses for both lawyers and judges alike. No doubt, stress can beget incivility, but it can also fuel judicial intolerance for incivility. And so it goes…
See some of our prior coverage on the impact of incivility here and here
