Imagine you are working diligently in your office when the telephone rings. You answer the phone, identifying yourself, and are immediately confronted with an angry voice on the other end. After listening for a few seconds, you conclude it is opposing counsel yelling at you and using profanity.
Despite the yelling, you gather that opposing counsel is angry about the motion you filed the day before and is claiming that motion is frivolous. You know, however, based on your research and the input from your supervising attorney, that the motion you filed was proper. When you try to explain yourself to opposing counsel, counsel refuses to listen to you, and after a whirlwind of a conversation, hangs up.
While this is a scenario that I hope most lawyers have not and will never experience, it is something for which any lawyer should be prepared to respond. The Standards of Civility, which were adopted by the New York State Unified Court System on Jan. 1, 1998, were issued to prohibit this type of behavior, as well as other conduct, which the courts have deemed to be “uncivil.” The 10 standards are available at: www.nycourts.gov/press/old_keep/stnds.shtml.
The Civility Standards are considered aspirational and cannot be enforced by sanction or disciplinary action. However, many of these standards overlap with the Rules of Professional Conduct or other state and federal statutes, which address uncivil conduct by attorneys and do carry the force of law.
For example, in Alexander Interactive Inc. v. Adorama, Inc., 2014 WL 4058705, at *FN3 (SDNY Aug. 14, 2014), the court noted that Prof. Rule of Conduct 8.4(d) prohibits a lawyer from “engaging in conduct that is prejudicial to the administration of justice …” It further noted, however, that “not every act of incivility stands to prejudice the administration of justice,” Id. at *2.
In that particular case, the court admonished an attorney for addressing opposing counsel with profanity in an email, and for dishonestly representing to opposing counsel that she had taped a prior telephone conversation, Alexander Interactive, Inc. v. Adorama, Inc., 2014 WL 2968528 (SDNY June 26, 2014). The court acknowledged that the attorney’s conduct violated both the Civility Standards and Professional Rule of Conduct 8.4(d).
Overlap also exists between Civility Standard II, which states “[w]hen consistent with their clients’ interests, lawyers should cooperate with opposing counsel in an effort to avoid litigation and to resolve litigation that has already commenced” and Rule of Professional Conduct 3.3(f), which provides conduct appropriate for a lawyer “appearing before a tribunal.” Rule 3.3(f) prohibits an attorney from “engaging in undignified or uncourteous conduct” or conduct intending to disrupt the tribunal, among other prohibited behavior, see In re Hayes, 7 A.D.3d 108 (1st Dept. 2004) (publicly censuring attorney for making insolent, disrespectful remarks to the court clerk, including accusing the clerk and court of prejudice and racism). This rule, unlike the Rule of Prof. Conduct 8.4(d), does not govern the conduct by counsel, which occurs outside of the presence of the judge or tribunal.
As an alternative or in addition to reporting opposing counsel’s incivility to the court, where an attorney violates the Rules for Professional Conduct, an attorney may opt to report the conduct to the Disciplinary Committee, see In re Teague, 15 N.Y.S.3d 312 (1st Dept. July 15, 2015) (suspending attorney for repeatedly making offensive statements to other attorneys in violation of Rule of Prof. Conduct 8.4(h)); In re Sondel, 111 A.D.3d 168 (1st Dept. 2013) (suspending attorney for making offensive and disrespectful statements to Immigration Judge).
The complaining attorney may also have potential redress through bringing a formal motion for sanctions in state or federal court pursuant to 22 NYCRR 130-1.1, Fed. Rule of Civ. Proc. 11, or 18 U.S.C. §1927, see e.g., Zappin v. Comfort, 2015 WL 5511519 (N.Y. Co. Sept. 18, 2015) (granting attorneys’ fees among other sanctions for attorney’s repeated incivility toward counsel and counsel’s expert). With regard to what sanctions a court may order, in Chambers v. NASCO, Inc., 401 U.S. 32, 33 (1991) the Supreme Court noted “Federal Courts have inherent power to . . . control the conduct of those who appear before them. In invoking the inherent power to punish conduct which abuses the judicial process, a court must exercise discretion in fashioning an appropriate sanction, which may range from dismissal of a lawsuit to an assessment of attorney’s fees.”
While dismissal of a lawsuit based upon uncivil conduct alone is unlikely, courts have required the payment of sanctions and attorneys’ fees where an attorney is forced to deal with frivolous or harassing conduct, see Zappin, 2015 WL 5511519, at *6-11. However, it should be noted that the standard for awarding sanctions is high, and a court may deny sanctions, even though it acknowledges the attorney at issue engaged in offensive or repugnant conduct against opposing counsel on a repeated basis, see Revson v. Cinque & Cinque, P.C., 221 F.3d 71 (2d Cir. 2000).
With regard to violations of the Standards of Civility that are not covered by the Rules of Professional Conduct or another statute, lawyer based groups, such as bar associations, have taken the lead in providing attorneys with resources to appropriately respond to this conduct. One reason these resources are important is that even where one attorney repeatedly engages in inappropriate conduct, if the attorney on the receiving end eventually reciprocates that conduct out of frustration, both parties can be subject to disciplinary action, see Alexander Interactive, Inc., 2014 WL4058705 at *2 (noting the court may take “claims of provocation by opposing counsel … into account in mitigation but concludes that they do not provide justification for [counsel’s] conduct.”). Therefore, it is essential for attorneys who are dealing with uncivil conduct, to handle it without reciprocation.
Bar associations and legal analysts are also concerned that incivility in the legal profession creates a bad image for the legal profession to the general public, see David A. Grenardo, “The High Costs of Incivility,” ABA Law Student Division, April/May 2015, available at http://bit.ly/1iLH5X0. Legal analysts and bar associations, including the ABA, have also expressed concern that the lack of civility in some of these relationships have gone as far as to take on the dynamic of a bullying relationship, see Peter Graha, PhD, Acument Assessment LLC, “Bullying by and of Lawyers: Why It Happens and What to Do About it” (ABA Webinar, Sept. 16, 2014) (currently available through the ABA online store).
Many forms of uncivil conduct between attorneys are much more subtle than the example described above, and it is essential for all attorneys (and new attorneys in particular), to have the tools to respond to uncivil conduct when it arises. Below, is a list of tips for dealing with opposing counsel who repeatedly exhibit uncivil conduct.
• Keeping written records of all uncivil interactions with opposing counsel. Handwritten notes, or writing a memo to file for particularly inappropriate telephone conversations will be helpful if the need to report the conduct to the Disciplinary Committee or the judge arises.
• Writing a letter to opposing counsel regarding your concerns about their conduct, and enclosing a copy of the Standards of Civility and/or the Rules of Professional Conduct.
• Speaking with other attorneys in your law firm, such as a supervising attorney or a mentor and asking for their advice.
• Setting limitations and stating consequences. For example, inform counsel that if they use profanity in telephone conversations, you will no longer communicate with them via telephone.
• If the attorney whose conduct is inappropriate is being supervised by a more senior attorney, consider reaching out to that attorney, or the managing partner for the law firm and informing them of the inappropriate conduct.
• If counsel’s behavior is uncivil and continues after repeated warnings, consider walking out of settlement discussions or a deposition.
• If counsel’s conduct during depositions is uncivil, or the attorney repeatedly violates deposition rules, such as by making speaking objections, consider insisting that all future depositions be videotaped.
• If opposing counsel’s conduct persists, consider bringing their conduct to the attention of the court, or reporting them to the Disciplinary Committee.
Laura Myers is an associate at the Wolford Law Firm LLP, where she practices in the areas of business, commercial and employment litigation.