By Judge John L. Kane Jr. [Originally published in NYPRR June & July 2006]
[Editor’s Note: John L. Kane Jr. is a Judge of the U. S. District Court for the District of Colorado. He was nominated for the Court by President Jimmy Carter. The nomination was confirmed by the Senate on Dec. 15, 1977. He assumed senior status on April 8, 1988. The text of this article was the subject of a talk by Judge Kane before the Denver Law Club on May 12, 2006.]
A great deal of emphasis is placed by the courts and the organized bar on the subject of civility. Few topics, if any, begin with the essential issue of definition. So we need to ask: “What is the definition of ‘civility’?” How often do you find yourself in a disagreement only to discover that you and the other participants are not talking about the same thing? How often are you in a meeting or court session and find that what someone else is saying and what you are thinking are like ships passing in the night? How often do you find yourself asking, “Wait a minute, what is it I am trying to say?”
My experience as a judge has taught me that most disputes are based on confusion in language and usually resolve themselves when the issues are clearly defined. The answers to questions do not matter so much as what the questions mean.
Most of 20th Century philosophy was devoted to the search for meaning in language. Law, I suggest, is applied philosophy. It is not surprising therefore that the essential problem in law is that of definition. (I once wrote an article on how courts attempt to define the term “reasonable doubt” and came to the intentionally ludicrous conclusion that no court has succeeded in formulating an intelligible definition. The lead sentence in my article was, “I don’t know what reasonable doubt means, and I can prove it.”)
The most frequently violated rule of definition in briefs, judicial opinions and statutes is the rule against tautology. In the simplest of terms, this rule proscribes defining a word by using that same word in the definition. The American Bar Association once spent a small fortune funding a task force to report on professionalism. The report was hundreds of pages long and publicized with great ballyhoo, yet not once in all its splendor did it define the term which was the subject of the report. Even dictionaries violate this rule. Incredibly, the second definition of the word “tautology” itself as listed in Merriam Webster’s Collegiate Dictionary, 10th Edition, is: “a tautologous statement.” In almost every conversation about contemporary politics and policy, the terms “liberal” and “conservative” are thrown about with reckless abandon. People will say that everyone knows what those words mean and yet the truth is that nobody does. Even more confusing, the meanings can change from sentence to sentence and sometimes even from phrase to phrase. Whatever meaning there is has to be extrapolated from context and by then it is too late for any purposeful statement to have been made. And if you think “liberal” and “conservative” are troublesome, try using that infamous four-letter word L-O-V-E and see what happens.
So, to avoid all this nonsensical waste of time, let us begin, unlike most of what you have read or listened to about today’s topic, with some definitions. I don’t ask that you necessarily agree with the definitions I will develop, but only that you accept them for the purpose of understanding just what it is that I am saying.
Those who live in a city should be grateful to our language. In ancient times people who lived in a city were supposed to be more civil in their manners and more civilized in their behavior than those dwelling in the countryside and hinterlands. Both of these words, — “civil” and “civilized,” are derivatives of the Latin term civis which means, “one who lives in a city.” City folk regarded themselves as more cultured and well-housebroken. English also borrowed the Latin word urbs, which likewise means city, and created the word “urbane” which describes the smooth manners and sophistication that were presumed to be characteristic of a civilized community. (If any of you happens to be a New Yorker, take limited pride in the term “Gotham” because it comes from the name of a village in Nottinghamshire, England noted for the blundering stupidity of its inhabitants.)
Understanding words requires a trip to the Oxford English Dictionary. It defines “civility” as the state of being polite (that is, following social conventions), “considerate” (that is thinking before acting), “refined”(that is being precise) and “educated” (which is to say having developed intellectual and moral powers.) But “civility” means more than manners or politeness. It is the self-discipline produced by thought and practice that enables one to live in a community without offending others or violating established norms of behavior. This is the definition I will be using.
We also must distinguish between the term “ethics” and the specialized term “professional ethics.” The two are clearly not the same. Aristotle defined ethics as “a state of character displayed in good actions.” He taught that the repetition of actions develops habits of behavior by which we identify character. If those actions are good, i.e., moral, then good character develops.
The optimum public result of developing good character is that ethical behavior occurs naturally and eventually becomes a matter of habit. Behaving ethically becomes a normative response. The training and repeated actions that mold and correct one’s mental faculties in order to acquire this habit form what is called discipline. The discipline of ethics is thus an integral part of civility and it is impossible to practice civility without being ethical.
A “Canon of Ethics” is a rule of discipline intended to set one on a prescribed course of conduct. The term “legal ethics” means the pursuit of the moral values inherent in legal practice. Some of the rules of professional ethics are not ethics at all, but rather negative proscriptions, many of which are overly simplistic. I am not suggesting that such rules are unnecessary, but there is a danger of confusing rules of professional conduct with ethical principles. The former prohibit and the latter command.
Let me put it this way: Most of the so-called ethical problems you face in practice can be answered with a few aphorisms. The first, unless of course your mother was Cruella DeVille or Lizzy Borden is this: “What would your mother tell you to do?” Another is this: If you have to ask, then don’t. A third bit of folksy wisdom that will keep you out of trouble is: If it ain’t so, don’t say it, and if it ain’t right, don’t do it.
There are, of course, legal ethics issues that evade these simplistic statements, but most grievances against lawyers and disciplinary actions involve procrastination, lying to a client by saying something is done which isn’t, and, the ticket to disbarment, spending other people’s money. One hardly hears of grievances involving betraying a client’s confidences and the most frequent violation, sheer incompetence, is almost never prosecuted. Lying to judges, citing bad law, and suborning witnesses are seldom grieved. Rather, judges usually deal with such matters by admonishing the lawyer and letting other judges know to beware. Thus are reputations lost.
Some of the most serious professional ethics issues never see the light of day. These are the ethical conundrums that have no right answer. They usually occur when two ethical postulates conflict, and under those circumstances most lawyers and judges agree that you should obtain the best advice you can and then follow your conscience. For example, what do you do when your client surprises you by testifying on cross-examination to a critical matter and you believe he is giving a false answer?
Another example is told by a Florida lawyer who was interviewing a client accused of stabbing his spouse. The client handed him a letter opener he said he had found in his jail cell. He told the lawyer to get rid of it because it was dangerous and contraband. The lawyer never said how he handled that one, and frankly, I’m not sure I would ever want to know.
Consider this example: You have a client you’ve represented in numerous matters for a number of years. You’ve known her to be a very smart and capable businesswoman. She has no family and lives alone. For reasons not entirely clear, her business decisions become less smart, and her instructions to you are contrary to her own best interests. The situation worsens and you suggest as subtly and diplomatically as possible that she should get a medical or psychological evaluation. She nearly fires you and tells you to mind your own business and do as she instructs you to do, or she will get another lawyer who will. Your experience and best judgment tell you that she has changed for the worse, but she doesn’t come near the standards for a determination of incompetency and appointment of a guardian. What do you do? There is no hornbook answer.
Though civility isn’t often discussed in terms of ethics, it should be very clear that it is unethical to be uncivil. In terms of professional ethics, it is likewise unprofessional to be uncivil. It is in fact a violation of the oath of admission. Every lawyer admitted to practice swears that he or she will abstain from all offensive conduct. The Bar’s creed clearly states: “I will abstain from all rude, disruptive, disrespectful, and abusive behavior and will at all times act with dignity, decency, and courtesy.” There is no exception to the civility requirement. There is no time when abusive behavior or lack of courtesy is acceptable for a member of the legal profession. Never.
Some lawyers will say, “I treat my opponents as well as they treat me.” That is just not good enough. Litigants can be expected to have their emotions override their reason and do things out of anger, frustration or peevishness, but the very function of a lawyer is to stand between the client and his own destructive impulses. Lawyers are expected to act with grace and good judgment under conditions of extreme stress. It is essential for a lawyer to step back from the exigencies of the moment and think calmly for the client’s benefit. Being uncivil means that a lawyer is out of control.
[Editor’s Note: Part 2 of Judge Kane’s talk follows (originally published in NYPRR July 2006).]
Here are some examples of lawyer incivility I’ve witnessed in the last few years. At a motion hearing, a lawyer responded to his opponent’s comment by saying, “That’s a lie.” When is it acceptable to say that about your opposing counsel? The answer is, never. The appropriate course is to direct your remarks to the court, not to the opponent and say, “Your honor, I believe counsel is mistaken. Our exhibits indicate precisely what I said.” Or, if you have been inaccurate, say, “I stand corrected. I was mistaken.” Such a response makes your opponent look like the north end of a southbound horse without your saying so.
Judges handle those problems in open court in different ways. Unfortunately, too many judges ignore incivility and thus give it tacit approval. Occasionally I say something like, “How nice, thank you for sharing your feelings with us. Now can we return to the issues” If such conduct is repeated, I will say, “That’s strike one. The next one will cost you a thousand dollars and there is no strike three.”
In the middle of a pre-trial conference the lawyers disagreed over whether they had previously stipulated to the admission or merely the authenticity of certain exhibits. One of the lawyers said to his opponent, “Now I know first-hand why you can’t be trusted.” Aside from being inappropriate, how could this possibly have helped his client’s case? All it does is encourage the opposing lawyer to be even less cooperative.
It should be obvious, but it apparently isn’t, that civility is good advocacy. In almost all cases, civil and criminal, there comes a time when opposing counsel must reason together in an attempt to reach a settlement. Incivility lessens the chances for successful negotiations and thus reduces the lawyer’s opportunity to render competent service both to the client and to the court. It also significantly reduces the ability of the lawyer thereafter to be persuasive with the judge or jury.
A few months ago I was deciding an appeal from the Bankruptcy Court. One of the errors alleged by the appellant had to do with the imposition of seemingly unbalanced sanctions by the bankruptcy judge. The attorney for the appellant complained that, yes, he had failed to file his list of witnesses on time and the court therefore prohibited him from calling those witnesses who had not been previously deposed. Hardly, I thought, a Draconian sanction. The gist of the lawyer’s complaint, however, was that the judge did not strike a brief of opposing counsel that had not been filed by the same due date.
Upon questioning, I discovered that his opposing counsel had called the day the brief was due and said his word processing equipment had broken down. He asked the appellant’s lawyer to agree to a one-day extension. The other lawyer refused and told me he couldn’t agree because he didn’t have authorization to do so from his client whom, implicitly, he couldn’t reach. I became unglued and quite uncivilly asked him if he was a lawyer or a robot. I now regret my sarcasm because I know that malpractice actions and grievances have been filed and indeed tried on the basis of even more trifling matters.
Most of these examples are about lawyers because lawyers are the people I am talking to, but I want to be very clear about this: Judges have absolutely no right to be uncivil. It is just as unethical for a judge to be uncivil as it is for a lawyer and, in fact, a judge’s incivility is even less excusable. Judges are treated better than lawyers and the correlative expectation is that judges should conduct themselves better as well. I will, however, leave my critical observations of the judiciary for another time.
In another recent case, two lawyers I know well and respected highly until then came before me with a stipulated pre-trial order. They didn’t like each other and had kept their contacts to a minimum. For an auto accident injury case they had listed more than 60 witnesses, a lengthy string of exhibits, no stipulations at all and a request for a twelve-day trial setting. The issues involved four or five claims for relief for the same damages under differing and mutually exclusive theories. The affirmative defenses looked as though they were copied from the table of contents of the latest edition of Prosser on Torts and their tendered jury instructions exceeded one hundred pages with no agreement on any of them. So much for the purpose of pre-trial orders to simplify the issues to be tried.
I told the lawyers they had presented nothing but mindless drivel. I refused to sign the order or set the case for trial until the exhibit list was cut down, the witness list pared, stipulations made as to inconsequential matters and the issues reduced to those actually in controversy. I said bluntly that neither had done well for his clients and that as officers of the court responsible for the efficient administration of justice their conduct was lamentable. (This is one of the ways judges get reputations for being grouchy and ill-tempered curmudgeons.)
Not too long ago I had to rule on a motion to vacate a default judgment where a defendant was one day late in filing an answer. The defense attorney’s elderly aunt had died and, as frequently happens, relatives go to the lawyer in the family to handle arrangements. Of course I granted the motion and observed that the entire event was a waste of time and money. I told plaintiff’s counsel that in the good old days a law firm would have fired a lawyer for being so uncivil as to move to default the other side under such circumstances.
His response still gives me a tight feeling in the stomach. “Judge,” he said, “my client’s in-house counsel ordered me to do it.” I can’t tell you how much I wanted to order that in-house counsel to the outhouse where he belonged. What I did say, however, and I hope it does some good was this: “Well, I hope you tell your client’s in-house counsel that from now on your client will be held to that same exacting standard. What’s sauce for the goose is sauce for the gander.”
It really has come down to this: The United States Supreme Court has rendered decisions that have turned a once proud profession into a mere business. Case law has increased malpractice liability for lawyers to a standard of near-strict liability. Judicial and staff appointments have not increased commensurate with case filings. State courts are budgeted at pauper levels and even ordinary whiplash cases have turned into Stephen Spielberg productions. The whole kit and caboodle grunts along on a system that contemplated printing by the use of a manual typewriter and copying by adding sheets of carbon paper.
When the rules of civil procedure were enacted in 1937, lawyers sometimes traveled to distant places, but they did so by train and they didn’t bill by the hour. In the 1930’s, a system of notice pleading followed by boundless discovery and evidentiary rules of inclusion rather than exclusion were praised as progressive and innovative, but with today’s technology our paradigm of procedure is simply fatuous.
My own view of the present plague of incivility is that the outmoded rules of procedure combined with the highly impersonal methods of communication such as e-mail and the transition from a local legal community to multi-state practice have made it inevitable. The very condition of living in a city, in the surround of others that gave us the word civility, has changed to the point that we live and work in isolation. We drive in little steel boxes and develop road rage. We eat standing in stalls at fast food shops we wistfully call restaurants. Business offices are divided into cubicles and industrial assembly lines no longer have people working on them. We walk the streets with cell phones stuck in our ears and rarely stop to chat. I’m sure you can add to this list. Consider the effect on civility of electronic filing. Few, if any of us, can give the names of people living in the same block. So separated, there is less reason to be civil.
The frenzy for imposing sanctions such as attorney fees is nothing but a stop-gap measure to coerce the bar into doing more than the rules themselves are able to effect, or less than amoral clients demand. Many, if not most, of the complaints about lawyer competence and incivility are rooted in the impossibility of expecting everyone to cope with the inadequacies of the system. To be ethical and practice civility, one must be defined in terms of those actions that encourage and enhance dignity and integrity and in the opposition to those actions that distort and denigrate them. As the great historian, Will Durant, once said, the important thing to remember is that civilization is not inherited; it must be acquired by each generation. Each action must be approached with a sense of reverence for the best that is in us.
These are my thoughts. I’ll close with this: If you can’t be ethical and civil because it’s the right thing to do, then do so because it’s the smart thing to do and insures your success. No, on second thought, do it because it will develop your character. That alone will surprise the hell out of your opponents. This is the definition I bring to you. There are more than a few vandals in the world today and you don’t have to be one of them.
DISCLAIMER: This article provides general coverage of its subject area and is presented to the reader for informational purposes only with the understanding that the laws governing legal ethics and professional responsibility are always changing. The information in this article is not a substitute for legal advice and may not be suitable in a particular situation. Consult your attorney for legal advice. New York Legal Ethics Reporter provides this article with the understanding that neither New York Legal Ethics Reporter LLC, nor Frankfurt Kurnit Klein & Selz, nor Hofstra University, nor their representatives, nor any of the authors are engaged herein in rendering legal advice. New York Legal Ethics Reporter LLC, Frankfurt Kurnit Klein & Selz, Hofstra University, their representatives, and the authors shall not be liable for any damages resulting from any error, inaccuracy, or omission.