The Case Against Incivility: Restoring Respect in Law

Episode Notes

Transcript

David A. Grenardo:

If we actually want to have accountability, we need mandatory civility rules. In my research, I see so many states, cities, local bar associations with these calls to civility or return to civility or to return a call or to return the last call of civility. It starts to get ridiculous and hoping somebody is going to change their behavior even though we’ve seen nothing but incivility from them. Unless there are rules and there’s accountability, it’s just naive to think some people will change.

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Welcome to the award-winning podcast, Lawyer 2 Lawyer with J. Craig Williams, bringing you the latest legal news and observations with the leading experts in the legal profession. You are listening to Legal Talk Network.

J. Craig Williams:

Welcome to Lawyer 2 Lawyer on the Legal Talk Network. I’m Craig Williams, coming to you from Southern California. I occasionally write a blog named May It please the court and have three books out titled How To Get Sued the Sled and My newest book. How Would You Decide 10 Famous Trials, the Changed History? You can Find All three on Amazon. In addition, our new podcast miniseries in Dispute, 10 famous trials that changed history is currently featured here on the Legal Talk Network and on your favorite podcasting app. The latest episode, spotlighting the infamous OJ trial is now available. Please listen and subscribe. Civility within the legal profession can be defined as the courteous and respectful behavior exhibited by legal professionals throughout their practice. Personal attacks, not agreeing to reasonable requests, writing inflammatory emails, briefs, or motions are just a few examples of incivility within the profession.

These actions have prompted calls for return to civility, where some states have adopted codes of civility. A fight for mandatory civility continues today on Lawyer 2 Lawyer . We will spotlight civility in the legal profession. We’ll take a look at mandatory civility and teaching the importance of civility to our law students and to those within the legal profession. And to help us better understand today’s topic. We’re joined by special guest David A. Grenardo professor of law and associate Director of the Holleran Center for Ethical Leadership in the Professions at St. Thomas School of Law. David earned the prestigious Warren e Berger Prize awarded by the American ends of court for his article. Civility Rules, debunking the major myths surrounding mandatory civility for lawyers and five mandatory Civility rules that Will work. Grenardo was researched and promoted civility for over a decade, and he is the leading proponent of mandatory civility in the legal academy. Welcome to the show, David.

David A. Grenardo:

Thanks for having me, Craig.

J. Craig Williams:

Well, David, give us a little bit of background about yourself. Talk to us about your role as the associate director of the Holleran Center and tell us why got involved with ethics.

David A. Grenardo:

Well, that’s a great question, Craig. So I grew up in Colorado. My mom was born and raised in Poland. My dad was born and raised in Guyana in South America. I grew up in Colorado. Their last place, they were both in the Army. They met in the Army and the last place they were stationed was Fort Carson, Colorado. So I grew up in Colorado Springs, was recruited to play football at Rice University and then went to Duke Law School and practiced law at three different law firms. Jones Day in Los Angeles, DLA Piper in Century City, which is right outside of Beverly Hills and King and Spalding in Houston. So I practiced for almost a decade, Craig, and two of the things I was most passionate about were pro bono work and also civility, treating other lawyers, treating the court, treating staff, everybody with dignity and respect.

So when I started teaching, this is now my 14th year of teaching, I was at Ave Maria School of Law in Naples, Florida, and then St. Mary’s School of Law for nine years. I was at St. Mary’s two years at ave. So what attracted me to the Holleran Center here, Craig, is that it focuses on the professional identity formation of law students. And what that means is it’s trying to help law students go from law student to lawyer. How do they make that transformation, not just in learning how to think like a lawyer, which is what a lot of law school is focused on, but how to act like a lawyer, how to be a lawyer, what are the most important characteristics and traits of a lawyer? So actually the Hallin Center has become a national leader in professional identity formation and their efforts led to a change in the A standards that now requires every law school to provide substantial opportunities for their law students to develop their professional identities.

And what’s interesting is that when you look at the scholars who have written on professional identity formation, two of the major scholars out there have talked about two or three. They’re from Mercer, Daisy, Floyd, Tim Floyd and Pat Longen. They’ve identified civility as one of the key traits for any lawyer that wants to be a good lawyer. So that’s kind of how it came together and understanding that I could help students on a national level. At the Holleran Center, we have a workshop coming up just this week. We’re going to have law schools from all over the country learn about what we do. We’re going to learn about what they do to help law students develop their professional identities. And it ties into the work I’ve been doing for over 10 years on civility.

J. Craig Williams:

It’s interesting that you’ve kind of started to focus on it because it seems, at least in my opinion, that overall the country has had a significant decrease in civility, just even on the political scale, but even on a social scale, how can we overcome that societal discord in the profession?

David A. Grenardo:

Well, you make some excellent points there, Craig. And we see there was a, and in some of my articles on civility, I’ll cite some of these studies, but there was an a, a survey of civic literacy in 2023, and it talks about, the first line says a massive 85% of US residents believe civility is worse compared to 10 years ago. And a majority believe social media and other things are to blame. But what’s happened is, yes, I do believe, I agree with a lot of the studies out there that civility is on the decline and incivility is on the rise and the legal profession is not immune to what’s happening in the rest of society. But we’ve seen Rambo litigation tactics, we’ve seen incivility for years in the legal profession, but it seems to be getting worse. And there have been a number of ways over the years that bar associations local and state have tried to address this.

One of them has been creating civility or professional codes or creeds. Professor Donald Campbell looked at, he said there were 140 different professional codes and creeds and civility codes that he looked at, but those are all aspirational. Another thing that 24 states have done is they’ve added language relating to civility in the attorney oaths that attorneys take when they’re admitted to practice law in a state. Most of those, not all, but most are again, aspirational. Interestingly, South Carolina is one of the states that is a mandatory civility state for lawyers and they base it on their attorney oath, but that’s one of the ways that different jurisdictions have employed to address incivility and legal profession. There’s also fund CLEs out there that ABO A does the American Board of Trial advocates called Civility matters. And there are others that are out there as well. And certainly teaching civility in law school to law students is critical, but all of these things are aspirational for the most part.

All these things are hopeful. Boy, I hope this person acts right. I hope this person treats somebody with dignity and respect. But if we actually want to have accountability, we need mandatory civility rules. In my research, I see so many states, cities, local bar associations with these calls to civility or return to civility or to return a call to return the last call of civility. It starts to get ridiculous and hoping somebody is going to change their behavior even though we’ve seen nothing but incivility from them. Unless there are rules and there’s accountability, it’s just naive to think some people will change. So that’s why I vigorously argue for mandatory civility for all lawyers.

J. Craig Williams:

One of the judges I regularly appear in front of has a daily quote that encourages civility and frequently expresses is discussed that it is not mandatory as well. But before we can really start to address it, I want to pick up on one thing that you said early on in your answer about how it is that incivility occurs and what the root cause of it is. But incivility happened with Rambo litigation tactics long before the internet came along. So what’s the root cause of this in our profession?

David A. Grenardo:

Well, that’s a great question, Craig. So the root cause can come from a number of different places. One of the things is media, television and radio and movies, mainly television movies. And you brought up a judge when you’re talking about a judge Craig, and I’ve spoken to, I spoke to Pennsylvania state court judges a few years ago, and one of the major issues they have with litigants sometimes are pro se litigants who are representing themselves and these pro se litigants, they get into court and they’re obstreperous, they’re obnoxious, they’re loud. And finally, a lot of times these judges will try to get to the bottom of, why are you acting like this? And they say, well, this is what I thought lawyers act like. This is what I see in the movies. This is what I see on tv. So part of it is this depiction in media of what lawyers are.

And then even having taught for 14 years, Craig, I see with law students, we have to disabuse them of that notion, that misconception that all lawyers are jerks and you have to be the loudest person and the most obnoxious person to win. And if you’re quiet, if you’re introverted, boy, the law is not for you. That’s totally wrong. So part of our job as law professors is helping them understand, one, you can be whoever you want to be and people appreciate your most authentic self. That’s when you’re going to be the most effective when you’re being genuine and authentic. And two, you don’t have to be that loud, obnoxious person. You don’t have to be mean, you don’t have to be rude. And we’ve seen when I taught, so I taught in Texas in San Antonio at St. Mary’s Law School for nine years, and I would always get the Joe Jamile.

Well, what about Joe Jamile? Joe Jamile on Texas style deposition on YouTube threatens to beat somebody up during a recorded deposition. And people say, well, he was successful. I would argue he was successful in spite of incivility. A lot of people that know him will say he was brilliant, he was well prepared, he had a great rapport with juries and he was fearless. That’s why he was a great lawyer, not because of the incivility. So sometimes it’s the media, the tv, the movie depiction of lawyers, sometimes it’s a few lawyers who are basically spoiling it for the rest of everybody. And so that’s part of it. Another part of one of the root causes that comes out, and this is when I talked to Merit Vasella, she’s the chief bar counsel, chief disciplinary counsel at Arizona, which is one of the four states that has mandatory civility so that Arizona, Florida, Michigan, and South Carolina.

So Merri Vasella said she loves mandatory civility because now what she can do if somebody’s yelling or screaming at somebody in court or after court or during a deposition and she gets a complaint, Hey, somebody was just out of control. She can call that person up and say, what’s really going on? And she says, many times the person will say, I just lost my only paralegal. I’m a solo practitioner. I’m dealing with a loss of a family member. I have substance alcohol or substance misuse issues. So mandatory civility allows these disciplinary counsel, when they start investigating these complaints to catch these issues early, the health and wellness issues where somebody has anxiety, they’re depressed, they have all these issues that we’ve talked about, and it’s not typically when you have some type of incivility complaint, first of all, typically it doesn’t even result in any type of sanction.

A lot of times, even if there is a sanction, it’s going to be a private reprimand with a letter or a phone call. And a lot of times they’re dismissed. But even if there is some, okay, there’s something here. It may be I’m going to send you to lawyer’s Concern for lawyers or your state’s Lawyer’s assistance program, or I’m going to get you into a law practice management course or anger management, or we’re going to figure out where we can get you some therapy for the anxiety or depression that you’re facing. So there can be a lot of reasons that are the root causes, Craig, of where the incivility comes from. But what’s really interesting, Craig, when we talk about mandatory civility in the states that have looked at it, Michigan has case law opinions that say one isolated incident of incivility does not rise to the level of a violation of their civility rule.

So it’s baked in to the rules and the system and those adjudicating it, investigating and adjudicating it. They understand that the practice of law includes passion and they understand that the practice of law is going to have cases where it’s bet the company cases or somebody’s freedom is at stake or somebody’s control custody of their kids are at stake. So they understand you call somebody a name once or twice, that is not enough to rise to the level of incivility when you have mandatory civility rules. So there is some leeway. That’s one of the myths that, oh, if there’s mandatory civility, holy cow, I’m going to just lose it one day and I’m going to get disbarred. None of that is true. None of that’s true.

J. Craig Williams:

Well, David, we need to take a quick break to hear a word from our sponsors. We’ll be right back and welcome back to Lawyer 2 Lawyer . I’m joined by Professor David A. Grenardo. He’s the associate director of Holler and Center for Ethical Leadership in the Professions at St. Thomas School of Law. We’ve been talking about ethics and a couple of particular issues that you faced when you said that incivility can make the legal profession look like we’re the Real Housewives. Obviously, as you pointed out, TVs and movies and the media portray lawyers in a particular fashion. What obligation does Hollywood for that matter? And we as lawyers who may consult with Hollywood to say, let’s be a little bit more accurate in our portrayal of lawyers so that we don’t project this style of incivility.

David A. Grenardo:

We definitely have a role. I’m not sure how many lawyers actually have access to the folks who are creating the shows or the movies where lawyers are being depicted about this, but in these ways as uncivil and rude. But as lawyers, if you look at the preamble to the Rules of Professional Conduct talks about how we are public citizens who have a special duty to justice, and we are officers of the court, we’re representatives of the justice system. So when these stories come out and my research assistants, they like reading these cases about incivility because they’re crazy because there’s somebody slapping someone. There’s somebody who is calling somebody a buffoon. And you referenced the Real Housewives. I’ve said that before. There was a case in 2023 where a big law attorney and I was a big law attorney as well, but a big law attorney in 2023 referred to the government’s brief as a hot mess.

That wasn’t the media, that wasn’t a movie, that was a lawyer in a brief to the Supreme Court of the United States describing another, the opposing counsel’s brief as a hot mess. How does that help us? How does the judge figure out, oh, this is the merits of the case. Oh, I like this argument. I don’t like that argument. It doesn’t help anybody. And then these are the stories that are picked up by the ABA Journal by other outlets and it makes us look silly. It makes us look absolutely silly. And there’s other costs of incivility too, not just making lawyers look bad, but it increases the stress for attorneys when you have somebody, a jerk on the other side. And if practiced long enough, you could probably think of one or two names that pop up on your phone and your blood just starts to boil of opposing counsel.

It also increases the cost for clients and waste judicial resources. If I’m fighting with you, Craig, about everything on this discovery and I’m not giving you any answers, then you have to write a meet and confer letter that’s costing your client money. I then have to write a meet and confer letter to you that’s costing my client money. And then if we go to court to argue about it, the client is paying us to argue this case. Same thing. If somebody wants to continuance on a case, then if the other side has a good reason for that continuance and it’s not going to materially adversely affect my client, there’s no prejudice to my client, I should grant that. Especially if it’s, Hey, my wife is sick, I have a sick kid, the client has an issue. Whatever the case may be, let’s continue that hearing that trial because if you, I oppose it, now I have to write the opposition now that’s costing my client money, and then I have to go argue that that’s going to cost my client more money.

And then if the judge sees I’m opposing this motion about your sick spouse or partner, they’re going to think badly of us. And whether it’s subconsciously or consciously, they may find in favor on certain things of the opposing party. So it’s one of those things where trying to treat opposing counsel with dignity and respect, trying to treat them how we want to be treated, because we never know when we may need time extra time on something because something comes up in our family. I had opposing counsel say, look, my kid’s sick, can I get some extra time to get you this discovery? Absolutely. Because if they didn’t and I got the incomplete discovery, I’d have to send a meet and confer letter. It’s going to cost my client money. But what I tried to do, I’m sure you’ve done this as well, Craig, and a lot of lawyers do.

Whenever I had a case with a new counsel, I’m calling them up and that first call is probably 30 minutes of, tell me about yourself. What’s your family? What do you like to do? I try to get to know them personally. And yeah, we go into court and we try to destroy each other, attack the arguments and the merits. But I never try to attack hopefully them personally to the point where Craig, that I had one opposing counsel. We went into court plenty of times, argue against each other in discovery, had issues as well resolve those that once opposing counsel was deciding on leaving their firm, she called me and asked if I could be a reference for her. That’s the type of relationship I want to have with opposing counsel. And I’m not one of those folks, Craig, that says, let’s take zealous out of every rules of the preamble and every rule and the rule of professional conduct. Lawyers should be fighting for their clients and clients want lawyers that’ll fight for them, but it’s how we fight that is most critical. Again, we can attack the other side’s arguments and their evidence. We don’t have to attack anyone personally.

J. Craig Williams:

Right. Well, David, we’re going to take another quick break to hear a word from our sponsors. We’ll be right back and welcome back to Lawyer 2 Lawyer . I’m back with Professor David A. Grenardo. David, you mentioned early on that there are mandatory rules of civility, apparently five of them. What are they?

David A. Grenardo:

Well, I have five proposed rules, Craig, and there are some states that already have rules. So mandatory civility rules. So I read to you, I didn’t read this to you, it’s the South Carolina oath. So the South Carolina oath says to opposing parties and their counsel, I pledge fairness, integrity, and civility, not only in court, but also in all written and oral communications. So that’s South Carolina’s oath that then they made the basis for their mandatory civility, meaning there could be sanctions if for uncivil conduct, but a lot of times there’s not. And they also, interestingly enough, they had every single lawyer who wanted to retain their South Carolina law license. They had them retake that oath so that then they were on notice that they were required to be civil. So another example is Michigan, and they have their civility rules. One of them, it’s right in their rules of professional conduct.

And that rule states a lawyer shall treat with courtesy and respect all persons involved in the legal process. A lawyer shall take particular care to avoid treating such a person, disco, courteously or disrespectfully because of the person’s race, gender, or other protected personal characteristic. To the extent possible, a lawyer shall require subordinate lawyers and non-lawyer assistance to provide such courteous and respectful treatment. So those are a couple of the rules out there, Craig, that are already in play in mandatory civility states. I have five rules that I propose. Again, if a state wants to use any of those rules that I just mentioned, south Carolina’s oath or Michigan’s rule of professional conduct, that would be great. I propose five rules, and the first one, I’m not going to read it, it’s in my last article that you mentioned at the beginning of this interview. Folks can read the full one there.

If they read that article, they’ll be the third person to read that article. Besides my mom and my grandma, I’m kidding, my mom doesn’t read any of my stuff. But the first proposed rule is a lawyer shall avoid disparaging personal remarks towards any individual involved in a case, including anybody included that’s involved in the legal process. So court staff, judges, paralegals, everybody. And then it also includes later on in that same rule, proposed rule that you can’t be insulting a lawyer’s work or work product. Okay? So that’s their brief as a hot mess. Alright? So that doesn’t mean that we can’t attack the credibility of the witness on a stand on the witness stand. That doesn’t mean we can’t attack the deficiencies in opposing counsel’s arguments in their brief. We just don’t need to resort to name calling and personal disparaging remarks. Another rule I have, the second rule is basically we have to try to work with opposing counsel to set schedules.

We have to work in good faith to try to figure out when we’re going to set hearings, meetings, depositions. And again, as long as it doesn’t prejudice our clients, we have to at least try. The third rule is very similar. We should, we shall grant reasonable extensions of time to opposing counsel where such extensions will not have a material adverse effect on the rights of the client. The fourth one, and this is what transactional lawyers love, Craig, because some of the ethical rules, the rules of professional conduct or the local court rules, they don’t get at transactional lawyers. So this fourth one is lawyers shall identify clearly for other counsel or parties, all changes that they have made in documents submitted to them for review. So that’s great for transactional lawyers. It also works for litigators because I wrote settlement agreements and you don’t want opposing counsel sneaking in certain terms.

But the fifth one is, when called on to do so, lawyers shall commit oral understandings to writing accurately and completely. So if you’ve been practicing long enough, you’ve reached agreement with opposing counsel on some matter, and now I’m writing about it saying, here’s what we agreed on. Unfortunately, some lawyers will add in things that weren’t agreed on or remove things that the parties actually agreed on these rules. My proposed civility rules pretty straightforward, takes away a lot of the discretion people are worried about. Although even with South Carolina’s oath, which was found constitutional by the South Carolina Supreme Court, because people said, oh, it’s overbroad, it’s chilling free speech, or it’s too vague. I don’t know what civility is or incivility that survive that oath that I read earlier that survive those constitutional attacks. But my proposed rules are even more straightforward and there’s even less debate. So again, if somebody adopted one of the rules, all of the rules, Michigan’s rule, south Carolina’s rule, that’s what I hope would happen because that’s where we’re going to have real systemic change in the legal profession because there are some people who are, we talked about the root causes, Craig, some people are just hardwired to be like that. So sometimes you need potential sanctions to get someone to actually act with dignity and respect for others. It’s sad, but if the carrot’s not working, eventually you need to use the stick.

J. Craig Williams:

Exactly. So well, David, as we sum up and finish up the episode here, I’m going to ask you just one last question. Are you really optimistic that we will see these changes in the legal profession when it comes to civility? And then as you finish with that question, give us your contact information so our listeners can reach out to you to discuss this further if they’d like to.

David A. Grenardo:

I’m very optimistic what has happened recently. In the last couple years, California created a civility task force to look at issues relating to civility in the legal profession. In California, the task force came back with recommendations one, to make mandatory civility a rule and a part of the rules of professional conduct in California to reinforce the oath that they have, and then also to add one required hour or make one of the 25 hours that are required for CLE credits. In California, you have to get 25 credits every three years, make one of those hours at least for civility. So the board of trustees for the state bar of California approved all of those recommendations. Now, thus far, the Supreme Court of California has not adopted mandatory civility, but they have added one hour, the required one hour of civility for CLE. You raise a good point.

My older son, he’s 16, and he knows that I talk about mandatory civility whenever I can. And he said, dad, how long have you been talking about and writing about mandatory civility? And I say, 12 years. He says, how many states have actually adopted it? I said, stop talking to me son, or else I’m not going to put money on your debit card, but I will stay optimistic, Craig, until the day I die. And Jerry Oregon, the co-director of the Horn Center, he said, on your gravestone, David, it’s going to read this a-hole really wanted mandatory civility. It’s so important and the costs are so important. We went over just some of the costs. You can read the article to look at the other costs of incivility, but trying to create an environment where young lawyers, senior lawyers, mid-level lawyers, they can just focus on the merits of the case and not worry about counsel on the other side, not wasting the client’s time, not wasting the court’s time.

There are so many inefficiencies with incivility, and it makes a lawyer’s life miserable when you have somebody on the other side that’s being obstreperous and a jerk for no reason. So having taught for 14 years practiced for almost a decade, I will never stop advocating for mandatory civility because I want lawyers to operate and practice in an area where they can, in an environment where they feel good and they’re focusing on the merits of the case and fighting for their clients in the right way. And my email is GREN 23 [email protected]. That’s S-T-T-H-O-M-A s.edu and GR 2380. That was my nickname in high school. Alright, just kidding. And then I’m also on LinkedIn if people want to find me,David A. Grenardo.

J. Craig Williams:

Great. Well, David, it’s been a pleasure having you on the show. Thank you very much.

David A. Grenardo:

Thank you, Craig.

J. Craig Williams:

Well, here are a few of my thoughts about this topic. As a brief writer, it really is important to remain dedicated to the facts and not attack the opposing counsel, especially the opposing counsel, or attack the opposing party unless it’s appropriate to do so based upon the evidence. But to just simply label a brief as a hot mess doesn’t advance anything and degrades the profession. So drop away from the incivility that we see in civil society or in civil society, and let’s try and make an effort as lawyers to be a little bit more kind and professional to one another. Well, that’s it for my rant on this topic. Let me know what you think. In April, we will be joined by retired Justice William Bedworth for a follow-up to this show where he will discuss key California civility cases and his ethics opinion on Mass Mill Corporation versus Vanderpool Law Firm. And if you like what you heard today, please rate us on Apple Podcasts or your favorite podcasting app. You can also visit us at legaltalknetwork.com, where you can sign up for our newsletter. I’m Craig Williams. Thanks for listening. Please join us next time for another great legal topic. Remember, when you want legal think Lawyer 2 Lawyer .

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