Joette Katz Authors Law.com Article Entitled "Civility for the New Generation"

We’ve spent a lot of time lately talking about civility. We all know why it has become the topic du jour, but my impetus is actually the recent Hartford County Bar Association symposium. As a speaker and interested participant, I looked around the court room where the event was being held, and I saw many judges and middle-aged lawyers. Where were our younger colleagues? Probably worrying about billable hours, or all current with their CLE credits. Everyone who spoke, used the phrase: “we’re speaking to the choir.” So how do we expand the choir and why do we care?

I think we can agree that civility—treating others with courtesy, dignity, and respect—makes a lawyer a more effective advocate while incivility can cause many adverse consequences, including losing a client’s case, increasing the costs to the client, ostracism from the legal community and promulgating the public’s negative perceptions of lawyers. These situations are distinct from instances in which parties genuinely believe that resisting discovery, because of privilege, privacy or harassment is warranted.

In recent years, egregious uncivil attorney conduct can be found regularly in email exchanges. One such email, which the American Board of Trial Advocates (ABOTA) uses for its national presentations on civility, includes the following: “While I am sorry to hear about your disabled child; that sort of thing is to be expected when a retard reproduces, it is a crap shoot sometimes retards can produce normal kids, sometimes they produce F***ed up kids. Do not hate me, hate your genetics. However, I would look at the bright side, at least you definitely know the kid is yours.” While this is a most egregious example, it is not an isolated one.

Former Chief Justice Warren Burger preached that lawyers “are the living exemplars—and thus teachers—every day in every case, and in every court.” He reminded lawyers that their “worst conduct will be emulated perhaps more readily than your best. When you flout the standards of professional conduct once, your conduct will be echoed in multiples and for years to come and long after you leave the scene.”

Law schools prepare their students relying on clinics, internships and externships for the practice of law. But does that include dealing with opposing counsel, clients and third parties in a respectful manner? Modeling civility will help law students understand its importance to the practice of law and the administration of justice. But what happens when young lawyers actually get out to the real world? Unfortunately, the real world, especially post-COVID, has given our young lawyers few opportunities to practice what we preach.

It also has given them few opportunities to see other more experienced lawyers. That’s how I learned criminal law and appellate advocacy—by watching Jack Zeldes, Ira Grudberg, Ted Koskoff—true lions of the bar. Of course, there were others; a few who were at the recent symposium, but my intent is not to make this a who’s who, but rather to bemoan the fact that as we need civility now more than ever, there are fewer and fewer opportunities to learn how to practice it.

One attorney at this recent event made a similar point and asked Chief Justice Mullins whether he could envision a time when we might return to the old days of short calendar. He responded that maybe we could explore the opportunity to return to those days at least with respect to dispositive motions. I for one would welcome any iteration that would help our younger colleagues understand the importance of civility and to benefit from watching the few remaining senior members of the bar provide a priceless education.

There have been programmatic efforts to address and curb spreading incivility in the legal profession. In 1996, the Conference of Chief Justices adopted a resolution calling for the courts of the highest authority in each state to take a leadership role in evaluating the contemporary needs of the legal community with respect to lawyer professionalism. In response, many supreme courts established commissions on professionalism to promote principles of professionalism and civility throughout their states. Some adopted civility codes, which certainly play a role in guiding young (and old) lawyers about how to conduct themselves in dealings with opposing counsel, clients, courts and third parties. Their purpose is in part to ensure that the image of the legal process is preserved and respected by the public.

These codes, including Connecticut’s, outline conduct beyond the minimum requirements of ethical rules and summarize what are the best practices for practitioners. But if that were all we needed, then why not just make all law school virtual and eliminate all modeling and supervision?

The creation of the English model of apprenticeship through Inns to combat the “diminishing standards of work product and the decline of civility at the American bar” has done its part. As a past president of the Fairfield County Inns of Court, I applaud the work of Connecticut’s chapters, but they are not available to everyone and not everyone can create the opportunity I’m suggesting. Other states have, either through their supreme courts or bar associations, formed committees that have studied professionalism issues and formulated principles articulating the aspirational or ideal behavior that lawyers should strive to exhibit. Strategies have included developing updated standards of professional conduct, increased CLE training like the one I just attended and the establishment of mentoring programs.

At the 1976 Democratic National Convention—the year of America’s Bicentennial—Rep. Barbara Jordan, the first Southern Black woman ever elected to the U.S. House of Representatives and a personal hero to me, told the delegates in her keynote address at Madison Square Garden: “A nation is formed by the willingness of each of us to share in the responsibility for upholding the common good.”

The value of civility remains essential, not just because clients and employers expect and seek it from lawyers, but also because civility remains consistent with the profession’s values. Lawyers should be taught to internalize and use civility to guide their actions. Now more than ever, we should rely on more than one method of delivery

Copyright 2024. ALM Global, LLC. All Rights Reserved. Originally published by Connecticut Law Tribune and Law.com [https://www.law.com/ctlawtribune/2024/11/19/civility-for-the-new-generation/], reprinted by permission.