Litigation Section Blog: Professionalism and the Art of Civility:

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  • Litigation Section Blog
    August
    23
    2016

    Professionalism and the Art of Civility

    Emile H. Banks Jr.

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    The very core of our professionalism should be to espouse civility in every matter that we handle. The essence of what litigators do is resolving conflict, writes attorney Emile Banks Jr. Representing clients zealously must not include treating opposing counsel with discourtesy or disrespect.

    The Merriam-Webster Dictionary defines “civility” as “polite, reasonable, and respectful behavior.” Increasingly, the deterioration of civility among attorneys, particularly litigators, has brought significant disrepute to our profession.

    Most of us are familiar with a quotation from William Shakespeare in “Henry IV,” Part II, “The first thing we do, let’s kill all the lawyers.” A 2013 survey by Pew Research Center ranked lawyers at the bottom of their list regarding professional public esteem. For many, lawyers represent fertile ground for comedic relief while others believe we contribute very little to society but remain a necessary evil.

    The public often forgets that the enhancement of product safety around the world has nearly singlehandedly been due to the efforts of lawyers zealously representing clients severely injured as a result of companies taking shortcuts in manufacturing and design in the name of increased profitability. One can also look at desegregation of schools, the right to protest, the right to free speech, and a plethora of other contributions that litigators have made to society.

    A Disturbing Trend

    Not only are attorneys criticized outside of our profession, but inside too. Many have noticed a disturbing trend of a growing lack of civility toward fellow litigants. Increasingly, some blame the portrayal of lawyers on television and in movies. Others point to the growing number of inexperienced lawyers directly out of law school hanging their own shingles with no legal mentoring as they enter the profession. Yet others blame technology and the ease one has expressing comments on legal social media websites while still holding onto their anonymity. Some even blame their clients, indicating that the client is expecting a pitbull approach to the handling of their case, and so they provide them what is expected.

     Emile Banks Jr com emile emilebankslaw Emile H. Banks Jr., Ohio Northern University 1984, is a founding member and shareholder in the law firm of Emile Banks & Associates, LLC, Milwaukee. His practice focuses primarily on medical malpractice defense.

    Most litigation-based practice is all about the fight over money. Therefore, instead of a goal to obtain a fair result for respective clients, the focus is too often on winning and doing so at any cost as opposed to allowing the true facts to dictate the outcome of the litigation. The “win at all costs” philosophy typically is the fuel used to activate or validate unprofessional behavior. Many believe that the uncivil behavior places them in a position of strength. However, in reality, it is more likely the result of insecurity on behalf of the actor and usually places the proponent of this behavior in a position of weakness. The most esteemed and successful lawyers usually have little problem finding a proper balance between proper advocacy for clients and accomplishing it in a professionally civil manner.

    Elevating Our Professionalism

    To improve professionalism under our system will take a multifaceted approach. It will begin with supreme courts like South Carolina imposing sanctions for uncivil and unprofessional behavior by attorneys. Relatively recently, a South Carolina lawyer was sanctioned when the court found that a letter he sent to an opponent violated a number of South Carolina ethical rules. The attorney represented a church in a dispute that his client had with a town. In a letter to the church that was also sent to the town manager and the town attorney, he stated:

    You have been sent a letter by purported Town Manager K_ M_. The letter is false. You notice M_ has no Order. He also has no brains and it is questionable if he has a soul. Christ was crucified some 2000 years ago. The church is His body on Earth. The pagans at Atlantic Beach want to crucify His body here on Earth yet again …. First graders know about freedom of religion. The pagans of Atlantic Beach think they are above God and the Federal law. They do not seem to be able to learn. People like them in S.C. tried to defy Federal law before with similar lack of success. In re White, 391 S.C. 581, 585, 707 S.E.2d 411 (2011).

    The South Carolina Supreme Court explained that it suspended the lawyer as a result of what it deemed to be an unprofessional and unethical letter, stating: “[A]n attorney may not, as a means of gaining a strategic advantage, engage in degrading and insulting conduct that departs from the standards of civility and professionalism required of all attorneys.”Id. at 588.

    In defense of the letter, the attorney argued that he thought his letter was protected by free speech. In rejecting his position, the court pointed out that he “could have zealously protected his client's rights by means other than using derogatory and demeaning comments.” Id. at 590.

    Working together as a profession to change common perceptions will lead to a more prestigious bar to once again be admired by society.

    South Carolina’s approach to incivility is a good start toward elevating our professionalism. However, this alone is not sufficient to make a large enough dent in the legal profession’s problem whereby we see a significant turnaround.

    Another measure that will assist in a significant turnaround is encouraging or requiring law schools to begin to provide a professionalism course or make the subject a mandatory part of their curriculum as the future of our profession matriculates through law school. Likewise, a number of state bar associations and legislatures have begun implementing professionalism courses requiring all new bar applicants to take a mandatory multi-hour course on professionalism. Many of them also require all active members of their respective bar to take the course within so many years of its implementation.

    Reversing the Negative Trend

    Ultimately, it will be up to the legal profession itself to establish and maintain a high level of professionalism toward one another. This will be accomplished by each lawyer understanding his or her true role of advocating on behalf of respective clients with the direct intention of not bringing disrepute to the profession.

    There is no question that the road will not be an easy one given how saturated incivility is within our profession. However, if a majority commit to being civil in every action that we litigate, then success will not be as far off as many currently believe. Since incivility is often more prevalent among litigators, it is incumbent on us to begin the process of reversing what appears to be a negative trend as to how we treat one another so that the next generation can lead us out of the basement of professionalism studies and toward the top of every such list, where we truly belong.

    Ultimately, it will be up to the legal profession itself to establish and maintain a high level of professionalism toward one another.

    Both individually and collectively, we must fight the temptation to fight fire with fire. When a colleague steps off the wagon of civility, it is incumbent on the opposing litigator to assist him or her back on by reciprocating with the highest level of professionalism and sincerely expressing the desire to handle the dispute amicably, as opposed to an “eye for an eye” approach. If the behavior of the uncivil lawyer continues, then it is incumbent on the lawyer to maintaincivility and continue doing so in as classy and professional way as possible. This type of response is a sign of ultimate strength and resolve and will usually result in a successful strategy and ultimately the best result that can be achieved on behalf of the client that is being served.

    This is a profession wherein the majority of attorneys represent their clients zealously and without resorting to unprofessional and uncivil behavior. Working together as a profession to change common perceptions will lead to a more prestigious bar to once again be admired by society.





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