There is a framed newspaper article hanging on the wall of my law school classmate Tom Garlitz’s office with a group photograph of the 19 members of the Charlotte Bar Association taken in 1887. They are a scruffy looking bunch, and of course all are white men. At least several of them are Confederate veterans who are identified by rank, including General Robert D. Johnston and Colonel Hamilton C. Jones.
I would be willing to bet that even almost 130 years ago, the older lawyers were bemoaning a loss of civility among their younger brethren and pining for some imagined Edenic age when punctilious courtliness was the order of the day. Never mind that such an era would have encompassed such societal rudeness as slavery, the Civil War and Reconstruction.
‘Twas ever thus. Ever since I’ve been a lawyer the assumption is that we lawyers used to act a lot nicer with each other than we do now. One hears a great deal about a “loss of civility”—never a word acknowledging a “gain” in civility.
In my opinion that’s wrong. I think, at present, the level of civility among the Bar is as high as it has ever been, and there is reason to expect that this trend will become even more pronounced among our younger lawyers. I also feel that after nearly 40 years of practicing primarily litigation and having served in such positions as chair of the local grievance committee, chair of the Disciplinary Hearing Commission, superior court judge and youth soccer coach, I have the knowledge and experience to qualify as an expert under Rule of Evidence 702 to offer an opinion on the identification and typology of jerks—specifically lawyers who are jerks.
First, let’s be lawyerly and define the terms we are talking about. By “civility” I mean the ordinary dictionary meaning of “polite, reasonable and respectful behavior.” That is encompassed by but narrower than the term “professionalism,” a word whose meaning now embraces so many attributes as almost to defy succinct definition. By “jerk” I mean the informal definition of “a contemptibly obnoxious person.” A jerk is to be distinguished from a person who actually lies, cheats or steals. That sort of lawyer is by definition unethical and merits a stronger epithet, usually in the vernacular form of a synecdoche referring to some bodily organ having an excretory and/or procreative function. (The English majors among you will recognize that a synecdoche is a figure of speech where a part is meant to stand as the whole.)
My thesis is that, while the number of jerks in the lawyer population per capita may be fairly constant, the severity of the jerkiness has been ameliorated and the essential nature of it has evolved into a form that is largely curable. It’s true that there isn’t any reliable empirical data to support this notion. Rather, I have to rely on anecdotal evidence. So here’s some anecdotes.
One of my favorite movie lines is from “Pulp Fiction” where “The Wolf,” played by Harvey Keitel, says, “Just because you are a character doesn’t mean that you have character.” (The English majors among you will recognize that figure of speech as an example of antanaclasis, a figure of speech where there is repetition of a word with a different meaning each time.)
When I started with my first firm out of law school in 1978 there were quite a number of characters in the Mecklenburg County Bar. Consider that one does not usually get a reputation as a “character” by being a nice guy. More often than not it’s by being a jerk, preferably a jerk with a certain flair, but still a jerk. Most of these character/jerks were senior lawyers who grew up during the Great Depression. Most also served in World War II or the Korean War. As a result of these formative experiences, they often played with the rules rather than by the rules.
One of these characters who was more of an eccentric than a jerk was the senior partner in the firm where I had my first job (obtained primarily through a recommendation from a member of my mother’s bridge club who was a secretary there—hey, whatever works). He dressed beyond flamboyantly, usually sporting a homburg hat, a ruffled shirt, cufflinks the size of half dollars, a clown school tie, spats, two-toned shoes, an engraved walking stick and a custom suit that looked like it was made from leftover drapery material from the set of “Gone with the Wind.” He also had what to me seemed to be the coolest and weirdest duty ever in World War II: piloting an anti-submarine blimp that patrolled the Panama Canal.
While fundamentally he was actually pretty likable so long as you did not work for him or oppose him as a lawyer, within the realm of law practice he was simply impossible to deal with. In litigation matters, no discovery request was ever actually answered but with multiple objections. In transactional matters, dead horses were beaten so severely as to be rendered into glue. He ultimately got into some trouble in a lawsuit over his handling of an estate when it was determined that he had on occasion billed for more than 24 hours in one day. Years later, his secretary, who started on the same day with the firm as I did, reminded me of what I had said to her as I stopped by her desk after having my orientation session with him, “Ms. Byers, what have we gotten ourselves into?”
Moving further along the spectrum toward pure jerkdom, consider the legendary Elbert Foster. Elbert was an insufferable old coot who in his pre-law career had been a court reporter for hearings on the Teapot Dome scandal during the administration of Warren Harding. It was virtually a rite of passage for a new lawyer to be sent to meet with Mr. Foster at his office in the Law Building. He would inevitably end up yelling at you and kicking you out of his office, even if you had brought along a settlement check for his client’s entire demand, plus attorney fees and maybe even a fruit basket.
Everybody who encountered Elbert probably has a story about him. James E. “Bill” Walker, a great lawyer, father of my law partner Nancy Walker and my predecessor as bar president exactly 50 years ago, told me that he once was arguing a domestic case against Elbert. Things got a bit heated until the judge warned both of them to, “Sit down and shut up. The next one of you who says a word is gonna be held in contempt.” Bill and Elbert duly took their seats while the judge looked down and read something from the file. Bill leaned over to Elbert and whispered to him, “Kiss my ass.” Elbert immediately shot out of his chair, foaming with rage and loudly protesting Bill’s unprovoked verbal assault against him. The judge summarily held Elbert in contempt for being “the next one who said a word,” and ordered the sheriff to take him to lockup. Bill just sat there and grinned.
I mention Elbert Foster by name without fear of repercussion because: (1) you can’t libel the dead; (2) even so, truth is a complete defense; and (3) I’m relying upon an official court document—his 1988 Mecklenburg County Bar Memorial Resolution, publicly available on the MCB website here
As described by the presenter, David H. Henderson, a true gentleman and father of my contemporary David L. Henderson:
“Against an opponent, he was a yellow jacket, or perhaps a whole swarm. He would sting you to death with depositions, interrogatories, verbal attacks, and was even known on occasion to swing a left hook . . . . He adopted in to the position of his client, and no man ever fought harder for the clients’ rights. Unafraid of the devil or the Supreme Court, he pressed interminably, sometimes ad nauseam, his strategies until some judge would threaten contempt charges. But he was never known to back away, and his clients loved it.”
“No man ever fought harder for the clients’ rights”—that statement embodies the lawyer’s rationale that singular devotion to the client’s cause justifies otherwise contemptible behavior. The classic formulation of this credo dates back to 1820 by Lord Henry Brougham in his defense of Queen Caroline in the House of Lords against charges of adultery by her husband, King George IV:
“An advocate, in the discharge of his duty, knows but one person in all the world, and that person is his client. To save that client by all means and expedients, and at all hazards and costs to other persons, and, amongst them, to himself, is his first and only duty; and in performing this duty he must not regard the alarm, the torments, the destruction which he may bring upon others.”
Less verbosely, it is more often the notion of “zealous” advocacy that is used to justify incivility. The “Z” words of zeal, zealous and zealously connote fanaticism and are in tension with standards of civility. Although zeal has historically been enshrined in attorney rules of professional conduct, zealous representation has over recent years receded in emphasis. For example, ABA Model Rule 1.3 used to read that it’s a lawyer’s duty “to represent his clients zealously within the bounds of the law.” The Model Rule, as well as North Carolina’s Rule 1.3, now reads that “(A) lawyer shall act with reasonable diligence and promptness in representing a client.” Although Z words can still be found in the comment to North Carolina’s Rule 1.3 and in the preamble to our Rules (“A lawyer . . . should provide zealous but honorable representation without resorting to unfair or offensive tactics”), clearly we have dialed back on emphasizing zealousness. Some jurisdictions have even gone so far as to purge all of the Z words from their ethical rules.
So why the change, and does it correspond with any general change in lawyer behavior? It seems to me that it parallels the increased emphasis on professionalism and the promotion of alternative dispute resolution that took off in the ‘90s. Law schools now teach professionalism courses and practicing lawyers are required to attend professionalism and ethics programs. More cases are resolved at mediation (where being a jerk is decidedly counterproductive) now than at trial. Furthermore, clients have less tolerance today than previously for the expense and delay that accompany scorched earth litigation tactics. They want problem solvers rather than siege warriors. Finally, the profession has taken note that lawyers not only have a duty to their clients, but also duties to opposing counsel, third parties and the courts that have to be balanced against the primacy of the interests of clients.
Getting back to those young lawyers. New admittees to the Bar have already been inculcated with notions of professionalism during law school. They also for the most part are Millennials, defined by the U.S. Bureau of Labor Statistics as that generation born between 1980 and 2001. As a parent of two of them, I can attest that Millennials really are different from Baby Boomers like me.
While it is a gross generalization, Millennials are team players, constant learners, diverse, socially conscious and achievement oriented. They seek flexibility in the workplace, expect frequent feedback, are comfortable with technology and are uncomfortable with rigid hierarchy in the workplace. They are likely to have networks outside of their employers and therefore may change jobs frequently. Those who are burdened by high student debt of necessity pursue high compensation in their careers.
Baby Boomers and Gen-Xers, in contrast, are more likely to take an individualistic “cowboy” approach to life and work. Such an attitude naturally gives one more freedom to be an obnoxious jerk than the collaborator, who cannot be an effective team player if he or she is constantly alienating others.
Back in the day, lawyers like Elbert Foster and his ilk knew exactly what they were doing and adopted offensive tactics as a conscious stratagem to achieve an advantage. Maybe I’m naïve, but I just haven’t seen much of that among the young lawyers I’ve encountered as a judge and a lawyer. In contrast, young lawyers now who act like jerks tend to do so more out of cluelessness. They may have had to go solo and have little or no access to mentors or other lawyers to coach them in the norms of expected lawyer behavior—the sorts of things they still don’t teach in law school.
Elbert Foster (and a lot of other lawyers both living and dead who shall remain nameless, but each of you readers probably has your own list) was set in his ways and chose to be a jerk because it worked for him. He wouldn’t have it any other way. On the other hand, for those new admittees who want to learn how to behave with civility, the Mecklenburg County Bar has a program. As described on the Bar’s website, “Linking Lawyers is an avenue for mentors and mentees to network, provide and receive guidance on issues of professional conduct, and gain insight into diverse practice areas through mentorship.” This is a great initiative and is always seeking new volunteers to serve as mentors and young lawyers as mentees. You can find out more about this program by checking out “Linking Lawyers: Mentoring” under the “Get Involved” tab at MeckBar.org.
I truly think the Bar has made gains in civility and am optimistic that civility in law practice will continue on an upward trend. And one more thing about that 1887 group of Charlotte lawyers: the youngest of them at age 24 was Heriot Clarkson, who following a long and distinguished career as a private lawyer served almost 20 years as an associate justice of the North Carolina Supreme Court until his death in 1942. So young lawyers really can turn out alright. ‘Twas ever thus.