Communicating with Other Lawyers and Third Parties: Ensuring Respect and Civility

I spoke recently on a national teleconference on the topic of "Attorney Professionalism: Translating Philosophy into Daily Practice." My comments addressed the unremarkable proposition that legal incivility among lawyers is not ethically acceptable. Many states and bar organizations have adopted "principles of professionalism" that, even if without the force of law, provide guidance that is not simply aspirational.

For example, Virginia's "Principles of Profesionalism" provides that:

Virginia can take special pride in the important role its lawyers have played in American history. From Thomas Jefferson to Oliver Hill, Virginia lawyers have epitomized our profession's highest ideals. Without losing sight of what lawyers do for their clients and for the public, lawyers should also focus on how they perform their duties. In their very first professional act, all Virginia lawyers pledge to demean themselves "professionally and courteously." Lawyers help their clients, the institutions with which they deal and themselves when they treat everyone with respect and courtesy. These Principles of Professionalism serve as a reminder of how Virginia lawyers have acted in the past and should act in the future.

In my conduct toward everyone with whom I deal, I should:

- Remember that I am part of a self-governing profession, and that my actions and demeanor reflect upon my profession.

- Treat everyone as I want to be treated - with respect and courtesy.

With that understanding, "[t]he Virginia Rules of Professional Conduct are precisely what they are described by their title to be: rules of professional conduct. They exist to further, not to obstruct, the professionalism of Virginia attorneys. Professionalism embraces common courtesy and good manners, and it informs the Rules and defines their scope. Accordingly, we will not construe the Rule to penalize an attorney for an act that is simultaneously non-malicious and polite."  Zaug v Virginia State Bar, 737 S.E.2d 914, 918 (Va. 2013).  In other words, "The traditions of professionalism at the bar embody a level of fairness, candor, and courtesy higher than the minimum requirements of the" ethical rules.  Gunter v. Virginia State Bar, 385 S.E.2d 597, 600 (Va. 1989).

By way of contrast, consider In the Matter of Jared E. Stolz, Docket No. DRB 13-331 (N.J. Sept. 3, 2014), in which an attorney faced disciplinary proceedings arising out of his litigation conduct, highlighted in communications with opposing counsel as follows:

“Don’t feel you have to email me daily and let me know just how smart you are.”

“Did you get beat up in school a lot? Because you whine like a little girl.”

“Why don’t you grow a pair?”

“This will acknowledge receipt of your numerous Emails, faxes and letters. … In response thereto, Bla Bla Bla Bla Bla Bla.”

Physical contact occurred between the attorney and the complainant lawyer, who told him not to touch him. The lawyer allegedly replied, “Why would I want to touch a fag like you?”

In response to the disciplinary complaint, the lawyer apologized for his comments and also noted that:

I neglected my files, I played too much golf, I went to Punta Cana with my family all within two months.

Was it wrong? I don’t know. This is the lifestyle that I’ve chosen, the practice I’ve chosen because I worked at [my firm] for 15 years in a cubicle rising to managing director. I didn’t want that anymore. I want to play golf. I do insurance work. I missed it. I screwed up. I had no motivation to lie to the judge about this particular thing.…

Should I have done things differently? Absolutely. Did I learn a lesson about this? Absolutely. After this, and I got that I now have hired two other attorneys, they review things, I review everything that comes in. Am I going to get lazy again and play more golf? I hope so. But I certainly did not intentionally lie.

Following consideration of the recommendations of the Disciplinary Review Board, the Supreme Court of New Jersey upheld a three-month suspension of the lawyer's license to practice law.  106 A.3d 482 (NJ 2015). 

Jeff Geiger assists attorneys and law firms with ethics and professional responsibility matters.  If you have any questions about this post or other issues, please contact Jeff at (804) 783-7248 or jgeiger@sandsanderson.com.