By Roy Simon [Originally published in NYPRR June 1998]
In September 1997, effective immediately, the New York courts adopted Standards of Civility, a nonbinding set of “guidelines intended to encourage lawyers, judges and court personnel to observe principles of civility and decorum Does anyone need these things? The Craco Committee thought so. The November 1995 Final Report of the Committee on the Profession and the Courts, a blue ribbon committee picked by Chief Judge Judith Kaye said:
Now we have Standards of The Committee urges the Unified Court System to adopt a code of conduct…that will reorient the bar and bench toward the observance of courtesies that have long enhanced the quality of professionalism in New York. Aspirational in tone and content, such a code will form a frame of reference to assist both bench and bar in discerning the bounds of civility among other things.
Civility. Will they resurrect the bar’s tradition of professional courtesy? On the surface, it doesn’t seem likely. Most lawyers already agree with the Standards of Civility and those who don’t aren’t likely to pay attention. The Standards are about as unobjectionable as the messages on Hallmark greeting cards. Consider the major headings in the section entitled “Lawyers’ Duties to Other Lawyers, Litigants and Witnesses”:
Lawyer’s Duties to Others
• Lawyers should be courteous and civil in all professional dealings with other persons.
• When consistent with their clients’ interests interests, lawyers should cooperate with opposing counsel in an effort to avoid litigation and to resolve litigation that has already commenced.
• A lawyer should respect the scheduling commitments of opposing counsel, consistent with protection of the client’s interests.
• A lawyer should promptly return telephone calls and answer correspondence reasonably requiring the response.
• The timing and manner of service of papers should not be designed to cause disadvantage to the party receiving the papers.
• A lawyer should not use any aspect of the litigation process, including discovery and motion practice, as a means of harassment or for the purpose of unnecessarily prolonging litigation or increasing litigation expenses.
• In depositions and other proceedings, and in negotiations, lawyers should conduct themselves with dignity and refrain from engaging in acts of rudeness and disrespect.
• A lawyer should adhere to all expressed promises and agreements with other counsel, whether oral or in writing, and to agreements implied by the circumstances or by local customs.
• Lawyers should not mislead other persons involved in the litigation process.
• Lawyers should be mindful of the need to protect the standing of the legal profession in the eyes of the public. Accordingly, lawyers should bring the New York State Standards of Civility to the attention of other lawyers when appropriate.
Maybe you feel better just reading these uplifting words. But as Walter Mondale once said to Gary Hart, “Where’s the beef?” The Standards of Civility are preaching to counsel in the choir.
Still, it is far too early to write off the Standards of Civility as ineffective or meaningless. We have to remember that they emanate directly from the courts, and they indicate deep judicial frustration with abusive litigation tactics. The Standards are flashing caution lights telling attorneys not to thumb their noses at the rules of the road. Like Rudy Giuliani’s policies on jaywalking, squeegee men, and loud boom boxes, the Standards of Civility are aimed at quality-of-life transgressions, and are emblematic of greater police vigilance everywhere. Translation: Judges are on the lookout for unruly litigators. The Standards of Civility are not enforceable per se, but lawyers who violate them will be profiled for closer inspection, like hippies going through customs or bearded Arabs boarding international flights.
Judges, of course. They armed themselves with upgraded weapons against incivility. Amended 22 NYCRR Part 130, effective March 1, 1998 [see “Stiffer Sanctions for Frivolous Litigation Conduct,” NYPRR April 1998], authorizes judges to crack down hard — up to $10,000 per incident — on frivolous or improper litigation conduct. Uncivil lawyers, like poorly dressed teenagers, should expect to be treated more harshly than their civilized colleagues at the bar.
Grievance committees, which are arms of the courts, are also ready to pounce on incivility. Name calling, table pounding, shouting, and other gross discourtesies are more likely than before to be labeled as conduct “prejudicial to the administration of justice” in violation of DR 1-102 (A)(5). Obstructive discovery tactics are more likely to run afoul of DR 7-102 (A)(3), which makes it improper to “[conceal or knowingly fail to disclose that which the lawyer is required by law to reveal.” White lies in negotiation are more likely to be viewed as “conduct involving dishonesty, fraud, deceit, or misrepresentation,” in violation of DR l-102(A)(4), or to violate DR 7-102(A)(5), which makes it unethical to “knowingly make a false statement of law or fact.” And discourteous outbursts in open court are more likely to be referred to grievance committees.
In short, while the new Standards of Civility are unlikely to have much direct impact on the day-to-day practice of law, they suggest a new atmosphere in which lawyers are expected to be civil and courts are ready and eager to sanction conduct that oversteps the bounds of zealous advocacy. Lawyers in the habit of “winning through intimidation” (to borrow the title of a popular book) should thus be forewarned that even more powerful and more intimidating forces — the courts and the grievance authorities — are manning the parapets of civility, and may be ready to shoot on sight to repel aggressive acts of rudeness or unprofessional conduct, The atmosphere is tense, the authorities are on high alert, and lawyers who want to star out of trouble should strive to be on their best behavior.
Roy Simon is a Professor of Law at Hofstra University School of Law and Director of Hofstra’s Institute for the Study of Legal Ethics. He is the author Simon’s New York Code of Professional Responsibility Annotated, published annually by West.
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