Disagreeing without being disagreeable
By Patrick E. Kelly
"Do as adversaries do in law; Strive mightily but eat and drink as friends."
This passage from Shakespeare's The Taming of the Shrew was quoted recently by the Court in a Pennsylvania U. S. District Court opinion ordering an offending lawyer to take a CLE civility class and to eat a meal with opposing counsel whom he had, among other things, called an ---hole four times during a deposition-on the record. Shakespeare's quote, and the Court's recognition of it, is a timely reminder to us all that, as lawyers, one of our obligations is to rise above pettiness and treat our adversaries in a professional, courteous and respectful manner.
While fortunately most of us do not often encounter "Philadelphia lawyers" here in the genteel South, few of us have not been witness to, or bore the brunt of, boorish behavior by other attorneys, including occasionally members of this Bar.
One contributor to lawyer incivility may be the extraordinary growth of our Bar. With more than 4300 lawyers practicing in Mecklenburg County, our Bar is no longer comprised of a small coterie of friends who socialize regularly over lunch in the Law Building. We no longer know many of our fellow attorneys personally or professionally. And, given the increased size of our Bar, it is possible to have isolated dealings with lawyers whom we may not see again for months or years, if at all. If you are like me, you have been asked in recent years to rate a list of lawyers for Martindale Hubbell, only to realize that most, if not all, are unfamiliar.
There are other contributors to lawyer incivility. No doubt the impersonal nature of e-mail communication can promote incivility. Firing back a curt email response may be more efficient, but at what cost to civility?
The continued coarsening of our society discourages civility. Our political discourse has become hyper-partisan. Opponents are demonized instead of debated. Traditional manners and courtesies are viewed by many as old-fashioned or sexist. Vulgarity has been mainstreamed on radio, television, the blogosphere and even in the hallowed halls of Congress, where a recent Vice-President dropped an f-bomb on a Senator who he believed had unfairly criticized him. While this exchange made for great theatre on the 24-hour news cycle stage, it contributed to the further erosion of mutual respect in our public discourse and for our institutions.
Increasing competition within the legal profession may also contribute to incivility. When zealous advocacy is misconstrued as "winning at all costs," almost any behavior can be rationalized as being in the client's best interests.
As lawyers and members of the legal profession we are called upon to rise above these pressures and adhere to a higher standard in our dealings with other lawyers. Our courtrooms, much to the credit of our judiciary, remain one of the few surviving bastions of civility. When civility is absent, as in recent events in our District Court attest, our profession as a whole is diminished. But more importantly, respect for justice and the rule of law are diminished.
There are many things that we as a Bar do and can continue to do to encourage and promote civility among lawyers. Here are a few:
1. Honor and emulate those who set the example. Each year, the MCB awards the Ozzie Ayscue Professionalism Award to a lawyer who exemplifies through his or her conduct that to which we should all aspire. Conversely, don't glamorize or reward those who engage in unprofessional behavior.
2. Take time to get to know your fellow lawyers. We are all prone to be suspicious of or distrust those whom we don't know.
3. Don't take the bait. It takes two to tango.
4. Don't delude yourself into believing that zealous representation of clients is license to check your manners at the door. Some misguided folk believe that rude and overly aggressive behavior is what clients want and are entitled to. However, such conduct is rarely effective. More often than not it prolongs disputes and increases client costs.
As we embark on a New Year, one worthy resolution for our Bar is to strive to be courteous and civil, even to those with whom we disagree. In the words of Bernard Meltzer, "if you can disagree without being disagreeable, then you have discovered the secret of getting along-- whether in business, family relations or life itself."