Keynote Speaker David Grenardo (State Bar of Texas Annual Meeting 2024)

Episode Notes

Transcript

Rocky Dhir:

Hello, and welcome to another episode of the State Bar of Texas podcast. We are recording live from our state bar annual meeting in Dallas, Texas. This is your host, Rocky Dhir, and today we’ve got our keynote speaker from our bench bar breakfast here in 2024. We have Professor David Grenardo from the University of St. Thomas School of Law. He talked this morning about something, every lawyer, that’s our favorite word, civility, is that right? David? Welcome.

David A. Grenardo:

Thanks for having me. It should be our favorite word. It’s one of the benchmarks, the cornerstones of the practice of law. We’re trying to, when we are trying to develop law students into lawyers, civility is one of the main things that a number of law schools are focusing on to make sure that we’re producing lawyers who are going to be treating others right. And it makes the justice system more efficient. It makes lawyers’ lives better when you’re dealing with some obstreperous jerk on the other side.

Rocky Dhir:

Were you just trying to work that word in obstreperous? That sounds like a throat condition. I’ve gotten obstreperous. Please stay away at least six feet.

David A. Grenardo:

My brother’s a doctor and he might think that as well, but it’s a word when you’re trying,

Rocky Dhir:

He got his medical degree from law school. Yeah. Okay. That’s fine.

David A. Grenardo:

You’re interfering with how things are going. You’re trying to just meddle, you’re trying to ruin the other person’s day. So when you practice, if you have somebody on the other side, opposing counsel that’s like that, it makes life miserable. And then also, if we’re fighting about everything, we’re ending up in court on silly things that’s wasting the court’s time. That’s also taking up our client’s money.

Rocky Dhir:

Now let’s just be clear. Are you for or against, or are you taking kind of a nuanced position when it comes to, you call it mandatory civility rules. So tell us what those rules are and what your position is on whether they should be mandatory. And I guess what that means too. I mean, so many bar associations have rules on civility, but I guess are they not mandatory in some sense?

David A. Grenardo:

Okay, great questions. Great questions.

Rocky Dhir:

I fired ’em out at you.

David A. Grenardo:

You did, yeah. Compound questions, but it’s okay.

Rocky Dhir:

I’m being obstreperous.

David A. Grenardo:

You are extremely! So right now, there’s four states that have mandatory civility. And what that means is that there are rules in place that if someone acts uncivil, then they, they may be sanctioned for their conduct. So that’s what mandatory, that they’re mandating, they’re regulating, they’re requiring civility from their attorneys. There are states that require it four states. And those four states are Florida, South Carolina, Michigan, and Arizona. California is on the verge potentially of becoming the fifth state. The board of trustees of the state bar of California have approved changes to add a civility rule to make civility mandatory to the rules of professional conduct, which are the ethical rules that are in place for lawyers. Okay, sure. And the Supreme Court of California, it’s the last step for them to determine if they will allow this civility rule to be adopted in one hour of CLE on civility and having the lawyers retake the oath so they’re on notice that civility is required of them. So one of the great things about mandatory civility, because I’ve been studying this, researching it for over 10 years, talking to the disciplinary counsel in those states because the disciplinary counsel, they’ll get the complaints about somebody being lack of communication, lack of diligence, and it could also now include lack of civility

Rocky Dhir:

And deadlines, not agreeing to extensions or accusing opposing counsel of misconduct.

David A. Grenardo:

So your point was what do these rules look like? Right. And you’re right. There’s been 140 professor Donald Campbell said, there’s over 140 civility codes that he’s looked at from local and state bars that include civility rules, and sometimes the rules are very general, that you’ll owe a duty of courtesy and respect to opposing counsel. And there’s 10 common core concepts that if you read the article I wrote, my latest one talks about those things. So South Carolina has an oath and they base their civility, mandatory civility just on their oath that attorneys take. And it just says that they owe civility to others at all times. So it’s to opposing counsel to pretty much anybody involved in the legal process. Michigan has one of their rules of professional conduct that talks about not making derogatory remarks about someone else personal attacks. And they specifically say, we’re definitely worried about if it’s based on race, color, cre, gender, those types of things.

So there’s some of the less specific and the less specific one from the oath in South Carolina, that was actually upheld by the Supreme Court of South Carolina in a case where there is an email that was sent out by a lawyer to another lawyer on a family law case, a domestic matter. And the lawyer said in the email, Hey, it’s kind of weird that your daughter, the daughter had nothing to do with the case. Your daughter was caught buying crack in a bad neighborhood. And does that make you and your wife bad parents? And the wife of the lawyer is also a lawyer. And it goes on to say the email. I just find it ironic that you think our case is complicated, but what’s more complicated than someone growing up in a fluent high class white family ending up buying drugs on the corner of fifth

Rocky Dhir:

Street? Wow. He went there. Okay.

David A. Grenardo:

And he said, and so the argument in the Supreme Court of South Carolina was, that was zealous advocacy. That was his first argument. And then he said, wait a second. Now I don’t know what civility is and what it isn’t. The oath just says I need to be civil. But that’s so vague. It violates the due process clause in terms of giving me fair notice about what the violation would be. And the court said, are you crazy? This goes way beyond,

Rocky Dhir:

Are you on crack? Yeah. Like the daughter of that person you just talked about. Yeah. Okay.

David A. Grenardo:

This goes way beyond the pale and it’s not even close to whether this is civil or not civil. This is way out of bounds. And the lawyer said, well, you’re chilling my free speech as a lawyer to defend my client, I should be able to say whatever I want. But lawyers have limited free speech. It’s not unlimited. So it’s interesting because some people worry about, so the article talks about the myths surrounding mandatory civility. One of the myths is that is, well, there’s a number

Rocky Dhir:

Of ’em. I’m sure there’s a lot of ’em.

David A. Grenardo:

Yeah, there’s a number of them. But one of ’em is, well, it’s too vague. We don’t understand what it is, and there’s not going to be noise, but we know what’s right and what’s not right. We know what’s respectful, what’s not respectful. And I define civility as treating others with courtesy, dignity and respect, and also showing restraint and cooperation.

Rocky Dhir:

Here’s maybe a question, I dunno to what extent you’ve ever had to address this in front of an audience, but I’m going to ask what might be a controversial question. And there’s all these rules on civility, and you’ll get panels of judges all over the country who will say, oh yeah, we expect our lawyers to behave in a civil way. We talk to one another. There’s a reputation. The problem comes when you’re in court or you’re in litigation and you have an opposing counsel who is acting in a very unprofessional fashion, sidebars under the breath, objections in the middle of closing arguments, all that stuff that we all bristle at, and it goes unpunished by the judge. That happens all the time. The judges will tell us to behave, but then they won’t punish those who are misbehaving. So then at that point, if you’re the ethical lawyer, if you’re the civil lawyer, you’ve got a situation where you’re effectively getting outmaneuvered in court because the other side is breaking the rules. What would be your response to that? And to what extent would mandatory civility rules address that situation of non-enforcement that can take

David A. Grenardo:

Place? That is a great question. So there’s a few things going on there. One, if it’s not happening in front of the judge, judges don’t want to play kindergarten teacher or hall monitor and figure out, well, who is telling the truth, who’s not? Sometimes things are on the record, sometimes unprofessional behavior is not on the record. Sure. So when it could be for a number of different reasons, maybe they don’t want to take out the time in court to deal with it. Sometimes you’re in a state like Texas where state judges are elected. So do I want to get into this mess into the sandbox and pick a side and then upset the other side because the one that I haven’t picked, okay, now I’m going to sanction them. Alright? Now that firm or those individuals, they’re going to be upset with me. What you could do with mandatory civility, the judge could hand that, just refer it to the state bar.

I see. If it becomes a rule of professional conduct, which is what it is in Michigan and in Arizona, there’s a number of different rules they look at, but it’s still the state bar handling those complaints. And then certainly in Michigan, it’s the state bar, the disciplinary counsel, the grievance commission, they caught there. They’re the ones that are addressing these issues. So you don’t have to waste the court’s time and the court doesn’t have to get in the middle of it. Now, if it’s happening in front of the judge, then the judge has the inherent power to say, okay, knock it off, stop that. But judges don’t want to get into the middle of that. So if you have a mandatory civility rule, now you’re freeing up the courts, you’re not wasting their judicial resources.

Rocky Dhir:

But then theoretically, even in that structure, like the Michigan one, even referring something to the grievance committee that can look like you’re either taking sides or you’re elevating it, you could still end up ticking off one side or the other depending on what’s going on. And that can become a weapon too, that, okay, I’m going to take this to the judge and it’s going to go to the grievance committee. Could that just end up back logging the whole grievance process? I mean, could that be one of the That’s

David A. Grenardo:

A great question. And the two disciplinary counsel that I interviewed and their interviews are in the article, they’re written down, they talk about how they didn’t have to add any staff when incivility or civility became a rule. So it’s not as if, now, interestingly enough, Arizona Council said, we did get a number of unprofessional conduct charges, but they were able to handle it without additional staff in Michigan. They said, no, we don’t have a lot of incivility complaints. And when we do, here’s a big thing. When we do, they typically handle it with private reprimand or just admonishment. And this is one of the advantages, the huge advantages of a mandatory civility rule. Not only is there accountability when you have those folks acting rude like jerks and our favorite word, we’re not going to repeat it. I’ll repeat it.

Rocky Dhir:

Why do you stare at me without blinking? When you said rude, I mean, come on David. I thought we were

David A. Grenardo:

Friends. Well, there’s a lot of people here staring at you. That happens a lot. So I just thought it was normal. Right? But it’s not just accountability, but when someone has a bad day and is yelling at someone going crazy,

Disciplinary counsel, when they get that call about that lawyer, they can give that lawyer a call and say, what’s going on? What’s happening? And so many times they get, my paralegal just left my office. Okay, I’m down a person. I’m a solo practitioner, or I’m depressed. I have anxiety. There’s some substance misuse going on. So allows we care about health and wellness. Right? Of course, we’re talking about it a lot more, which is great. This allows disciplinary counsel to catch that early. And what happens, also, the case law, it bears this out in common sense. One act of incivility, even if it’s multiple times. One time, there’s this case in Michigan calling somebody a name, bleeping a-hole. The grievance commission says that doesn’t rise to the level of sanctionable incivility because the practice of law can be very passionate and there can be a lot of things at stake when you practice.

So it’s not like if there’s one act of incivility, you’re disbarred your career’s over, you’re done. No, people understand. The people are investigating who are adjudicating these cases, who are hearing it, the judges, the disciplinary committees, they understand that’s the practice of law. So one act of incivility is not even going to rise to the level of being sanctioned. A lot of times it’s going to be, how can we help this person with some other maybe a diversion program? Let’s get this person into a lawyer assistance program or meet with lawyers concerned for lawyers or have an anger management or a law practice management class. So that’s one of the myths that people are worried, oh my gosh, I’m not going to open the door for someone and I’m going to get disbarred. That’s not how it works. That’s not how it works, that it works in the real world.

And the people who adjudicate it, they understand that. So some of my proposed civility rules are based on rules that were already out there. Some of ’em were from the Dondi case, and I believe that was in the northern district of Texas. Yeah. Here. That was the first federal district court, I believe that made civility mandatory. There are a few others now, but one of ’em was you cannot make disparaging remarks about someone else’s personal disparaging remarks. So you could still attack their credibility on the witness stand. So my mom was born and raised in Poland. I told this story. My dad was born and raised in Guyana in South America. So if someone wanted to attack my weird looking eyebrows, I think that’s how I got these that would go beyond the pale, right? That has nothing to do with being a zealous advocate. So that’s what we’re trying, the name calling the personal insults not necessary or insulting someone’s work product. I talked about in the speech about a brief filed in the Supreme Court of the United States last year, one of the briefs referred to opposing counsel’s brief as hot garbage. At least

Rocky Dhir:

It was hot. Look, it could have been worse. I’d take that as a compliment.

David A. Grenardo:

Well, what happens is, first of all, that doesn’t help the judges figure out, well, what is deficient in opposing counsel’s brief? And it makes the legal profession look like we’re the real housewives of whatever city they’re in now. I believe they’re in every city. So that’s one proposed rule I have another proposed civility rule is if you make any changes in a document, you have to make them clearly and let the other side know. So right now, sometimes people say, well, we have rules in civil procedure, local rules, rules of professional conduct. They don’t cover transactional attorneys. They don’t cover a lot. When there’s no pending litigation, typically it’s not going to cover that particular rule. Transactional attorneys who’ve heard that proposed rule, they like it. And it’s a simple one, and it’s easy to enforce. But also having litigated, I’m writing a settlement agreement, I want to know what the other side has changed as well.

I don’t want them to sneak in a provision without me seeing. Another one of the proposed rules is if we need to try to work together in good faith to come up with scheduling. And if I find out, if we schedule something and I know that something is now a conflict, I have to tell you immediately, these are basic. We’re talking about the ethics rules are the lowest common denominator of behavior before you get sanctioned. This is one very small step up, and it is not a big ask, but the way that it would help, the other thing is that if there’s any extensions that the other side asks for that you grant them provided they don’t abuse it, it’s not ping your own client or it’s not materially adverse to your own client. Sure. So I told a story during the speech about a lawyer in San Antonio.

Opposing counsel said, Hey, can we continue the trial for another month because my wife is sick? And the lawyer said, yeah, of course we can do that. No problem. A month later, opposing counsel, Hey, can we continue the trial in another month because my wife is sick? And yeah, okay, no problem. The third time the lawyer asked, the opposing counsel did. This lawyer said, all right, he’s playing a game. He’s trying to get more time for some reason. No, you can’t have more time. They show up for trial. And on the morning of that trial, opposing counsel says, Hey, can we start the trial in the afternoon? I’d like to attend my wife’s funeral. Wow. So one of the things when you’re practicing, if something comes up unexpectedly, you would hope that you would get that extension granted by the other side. And when I practiced, I always granted the extensions first asking the client, is it okay if we grant this? Then they said, yes, absolutely. If they need more time because their child is sick, because the client is not able to answer or help them answer the interrogatories, whatever it is, I would want that same courtesy as well when unexpected things happen. So those are some of the proposed civility rules. Pretty straightforward, even more straightforward and more definite than South Carolina in its oath, which has already been upheld as a valid rule. And constitutional

Rocky Dhir:

Well, it sounds like these aren’t just just civility rules. These should be marriage vows, is what I’m thinking. But unfortunately, David, that is all the time we have for this particular installment of the State Bar of Texas podcast. I want to thank you for joining us, professor David A. Grenardo.

David A. Grenardo:

Thank you for having me.

Rocky Dhir:

Absolutely. And also, I want to thank you, our listeners for tuning in. You guys are amazing. If you like what you heard, please rate and review us wherever you get your podcasts. I’m Rocky Dhir. Until next time, thanks for listening. See you.