To Agree or Not to Agree: That Is a Civil Question [1]

The Bard of Avon expressed a variety of views on the legal profession. We will not repeat here his seemingly dismissive line about lawyers from King Henry VI, [3] for fear that it may be misinterpreted by readers of this article, as it has been for centuries. [4] Instead, as a prism for reflecting light on how civility should be viewed in the legal profession even today, we borrow from The Taming of the Shrew: “And do as adversaries do in law—Strive mightily but eat and drink as friends.” [5]
           
Beginning well before Shakespeare’s time, social justice systems have been created that require accusations against fellow citizens be well grounded in fact. For example, Hammurabi’s Code, originating from Babylonian law and consisting of 282 laws with varying punishments, included the infamous lex talionis, translated into modern vernacular as “an eye for an eye, a tooth for a tooth,” [6] inflicted harsh punishments, including death, upon accusers who did not bring well founded accusations. [7]
           
Over time, the role of attorneys emerged as persons who could act as surrogates and advocate on behalf of others. As this profession developed, attorneys became beholden to simultaneously existing duties of advocating for their clients while serving as officers of the tribunal before which they appeared. This distinction of being an officer of the court bestows attorneys with a professional role beyond just representation of and advocacy for a client. [8] As Justice Oliver Wendell Holmes stated in 1885, years before joining the U.S. Supreme Court: “Of all secular professions this has the highest standards.” [9]

Ethics and Civility
The importance of ethics before tribunals should not be overlooked, and will be addressed in other articles published with this series. However, this article highlights how the need for maintaining civility undergirds the attorney’s role as an officer of the court. Ethical conduct is often anonymous, while civility is interactive; that is, while ethics can be defined as behavior when no one is watching, civility can be defined as behavior where others are directly affected. As licensed professionals, attorneys have daily opportunities to be civil—or not to be. As officers of the court, attorneys have no better arena to display civility than in their appearances before the court, but civility remains equally important in the numerous day-to-day interactions which are not being observed by the court.

Defining “Officer of the Court”
“A lawyer, as a member of the legal profession, is a representative of clients, an officer of the legal system and a public citizen having special responsibility for the quality of justice.” [10] Although the terms “lawyer” and “officer of the court” are often interchanged, for the purpose of this article, there are distinct differences. Several theories debate the origin of the term “officer of the court,” [11] but arguably, the bestowment of such a title to those licensed to practice law and appear before a court suggests obligations which are in addition to and may, in fact, transcend the requirement to represent one’s client in a zealous, ethical and professional manner. [12]
           
The unique practice of bankruptcy law provides a fast pace that might be used as an excuse to cut corners, not return phone calls or not try to work out parts of contested matters. The swiftness of this practice should not be misinterpreted as an excuse for incivility or a lack of manners. Additionally, the practice of bankruptcy often involves interactions with many parties, other than the usual two-party dispute; therefore, within these many interactions are numerous opportunities for attorneys to choose civility.
           
From the court’s perspective, bankruptcy attorneys, as any other attorneys, have obligations to exercise civility as officers of the court. To amplify this fact, the U.S. Bankruptcy Court for the Eastern District of New York recently adopted the New York State Standards of Civility for the legal profession, [13] with specific directives to attorneys practicing before it. These directives to maintain civility are not specific to any geographic region, and include the following:

Lawyers can disagree without being disagreeable. Effective representation does not require antagonistic or acrimonious behavior. Whether orally or in writing, lawyers should avoid vulgar language, disparaging personal remarks or acrimony toward other counsel, parties or witnesses. (I B)

Lawyers should allow themselves sufficient time to resolve any dispute or disagreement by communicating with one another and imposing reasonable and meaningful deadlines in light of the nature and status of the case. (II B)

In the absence of a court order, a lawyer should agree to reasonable requests for extensions of time or for waiver of procedural formalities when the legitimate interests of the client will not be adversely affected. (III A)

A lawyer should promptly return telephone calls and answer correspondence reasonably requiring a response. (IV)

Papers should not be served at a time or in a manner designed to inconvenience an adversary. (V B)

A lawyer should avoid discovery that is not necessary to obtain facts or perpetuate testimony or that is designed to place an undue burden or expense on a party. (VI A)

A lawyer should respond to discovery requests reasonably and not strain to interpret the request so as to avoid disclosure of relevant and nonprivileged information. (VI B)

Common-sense directives such as these became necessary because civility had taken an unacceptable downward spiral that reflected poorly on our noble profession and blemished our public image. [14] Many attempts have been made to codify civility or promulgate codes that encourage it. [15] In 1980, the American Inns of Court was established with the stated mission “to foster excellence in professionalism, ethics, civility, and legal skills.” [16] However, the courts cannot police civility amidst the numerous interactions between attorneys and of attorneys with parties and witnesses. Therefore, attorneys must reinforce the need for civility first and foremost through their own interactions.
           
Toward this end, it is not enough to observe how the other person acts and then react; a better step is always taken in a manner deserving of the noble distinction of officer of the court, a path that has its own rewards. Zealous advocacy should not be used as an excuse for rudeness, disparaging remarks or conduct designed to inconvenience the other side or its attorney. [17] Winning does not require or entail making a matter so distasteful or expensive that the other side surrenders; winning is achieved through preserving the integrity of the advocacy process, which emanates from a system of justice, doing right and finding truth. An attorney should not ever be drawn to conduct that conceals or distorts facts in the name of advocacy, [18] nor should an attorney deploy ignoble conduct in the name of seeking justice. [19]

As one court stated, in citing standards of litigation conduct established in Dondi Properties Corp. v. Commerce Savings & Loan Ass’n, [20]:

If opposing counsel’s arguments are weak, they are to be challenged on the merits; the arguments can be characterized as wrong or incorrect without referring to them as “garbage” or “legal incompetence” or referring to the attorneys as “various incompetents,” “inept” or “clunks.” Characterizing an attorney or firm as a “puppet” or “stooge” of another adds nothing to a determination of the merits of their arguments. Many of the alleged comments…are classic ad hominem arguments that have no place in legal practice in this district. Even if every remark were absolutely true, they would still be objectionable under Dondi. [21]

Professionalism and Civility for All Officers of the Court
To foster justice for all, those who work with and in the court must also interact with civility. Some professionals within the justice system are regulated by rules of discipline and conduct, which are woven from threads of civility. For example, licensure as a lawyer requires adherence to certain rules of professionalism, and failure to comply could subject a lawyer to discipline. [22] Undeniably, these rules of professionalism buttress the foundation of obligations for the officer of the court. Indeed, “[l]awyers, as emissaries of our system of law, should by extension act as the very personification of civility.” [23] To maintain these standards, lawyers must act within their own personal high standards of civility as an example and raise the bar, while also meeting court- or bar-established standards. [24]
           
Judges also have obligations of civility, embedded in the Canons of Judicial Conduct, which dictate judicial officers’ obligations to the public and the legal process. [25] Judges, as officers of the court, also owe an obligation to “be patient, courteous and civil to lawyers, parties and witnesses,” be prompt in issuing decisions, and be punctual in conducting hearings or trials. [26] Court personnel, also, “should be courteous, patient and respectful while providing prompt, efficient and helpful service to all persons having business with the courts.” [27] By working together, the system prevails.

Getting Back to Basics: Strive to Be Civil
Beyond the enumerated, situation-specific requirements of conduct set out in the Standards of Civility, reference should also be made to the Oxford English Dictionary, which defines civility as “[b]ehaviour or speech appropriate to civil interactions.” [28] Although current vernacular has added to the definition some “negative overtones [connoting] the minimum degree of courtesy required in a social situation,” [29] officers of the court should strive for the highest standards, as Justice Holmes articulated in 1885.
           
This article emphasizes that the minimum is not what is expected of an officer of the court. No chain is stronger than its weakest link, and no building can stand on a porous foundation, so too must our system of justice be built on sturdy blocks of politeness, courtesy, and consideration. To agree on issues where agreement can be found is minimal; to disagree without being disagreeable is essential. As attorneys we can strive mightily for our clients, confer dignity upon our profession, and eat and drink as friends.