Several preliminary remarks: It is a pleasure to participate in this first program inspired by friends of Roger O’Reilly. I knew Roger well, almost from the start of his career with Liberty Mutual. But, we never had a case together, neither as opponents nor as fellow counsel for the defense. Nevertheless, I immediately grasped how his memory can be the springboard for a continuing reminder of the need for a professional behavior check.
And, it is equally a pleasure to be selected with Judge Aspen and Bob Clifford. Since his days in the law jury section of the Circuit Court in Cook County, Judge Aspen’s reputation has been as an exceptionally capable trial judge who has an innate sense of fairness and respect for both the litigants and lawyers who appear before him. It is not surprising that he was asked to address you today for he has written, lectured and otherwise been associated most of his judicial career with helping lawyers rise to the level of true professionals.
Bob Clifford, in turn, has risen to the top rung of the trial bar representing plaintiffs. He has had some of the most prominent cases of recent times. Cases with novel or emerging concepts - and he has developed his reputation without having his ego overshadow the whole process. He has a reputation for fair and even handed practice.
The topic of civility is an intriguing one, partly because it has so many shades of meaning. I, for one, have always been mildly put off when the light has been turned on me. After all, doesn’t every defendant or accused person want to be represented by a "real fighter?" In the defense bar lawyers are often remembered as capable of giving opponents "a real fight." So much so that several considerable reputations were built on that style of advocacy. On the other hand, we have all known lawyers, on both sides, who didn’t seem to care and gave in on their cases too easily. Often we thought they were conceding unnecessarily. So, there is always a suspicion that "being a gentleman" or exercising whatever the listener believed the word "civil" to connote was not the quality a client wanted for defense counsel in a difficult lawsuit. In other words, was it really good for business to have a reputation of "being a real gentleman?"
Probably not. But, after all, results are relatively easily measured in a trial practice. We all know who brings cases to a jury. And, it is not difficult to find information about a trial lawyer’s reputation for skill and competence.
So, those colleagues of mine who "work smart," pick and choose their battles, concede the obvious, collect a reputation for credibility in the discovery process, they will last longer, post a fair number of NGs and come close to turning out a cost efficient product.
If the crux of any lawyer’s practice is to achieve a good result for the least expense, why do some lawyers become time wasters in their actions? Why are some lawyers obstructionists, shouters, liars or just plain foolish? It is probably a gross over-simplification to establish categories for them but, nevertheless, it seems a certain number confuse pugilistic advocacy with effective trial strategy; some do it as a calculated method to attract business, its their marketing ploy; and, others because they become so emotional they lose good judgment. It is almost as if they have taken on to themselves their client’s problems and they lose their cool and focus.
It seems that every journal contains some expression attempting to define what it means to be professional. Any number of aspirational standards are in publication to give guidance to the practitioner. In the defense counsel’s world there are standards published by the American College of Trial Lawyers, the IADC, DRI, U.S. District Court for the Northern District of Illinois, and others. Despite the existence of these ideals the problem seems to continue. We read and hear of lawyers who employ scorched earth tactics with a war of faxes or late Friday night motions to be heard on Monday a.m. at the emergency call, or who shout and curse at depositions. Is civility a hopeless visionary goal? Is it an unrealistic uplifting vision while the problem is woven into the fabric of trial practice so that what we call civility defies appeals to logic or professionalism?
Monroe Freedman has written on this topic from his faculty position at Hofstra Law School. In 1995 he published one article with the provocative title, "Civility Runs Amok." His point was that the New York Times had conducted a survey and found that courtroom disorder was not a problem. He believes the current emphasis on the topic began in 1984. Then Chief Justice Burger, exasperated by civil rights lawyers and some of their antics, began a crusade to change the behavior of certain lawyers; he enlisted the ABA and ever since then we have been bombarded with "voluntary creeds" that turn into mandatory rules. He asks the question, "Well, what harm can they do?" He answers himself by noting that it is axiomatic that "every lawyer shall represent his client zealously within the bounds of the law," this zeal of representing the client is the fundamental principle of the trial lawyer.
Freedman goes on to say that everyone is for civility and courtesy but everyone defines it differently. He cites definitions of incivility ranging from fraud and deceit to failure to return phone calls. He found that in between the two extremes there is: being a junkyard dog; being sneaky, mean or misleading; not being ethical; failing to provide discovery; badgering a witness; ignoring deadlines. In other words, different things to different people. He makes no pretense of defending these practices but says that each of them is already subject to more than one rule providing for sanctions or disciplinary action. In that regard, the 2000 Annual Report of the ARDC reports under the heading: Classification of Charges Docketed in 2000 by Violation Alleged.
Fraudulent or deceptive activity, including lying to clients, knowing use of false evidence or making a misrepresentation to a tribunal (892)
Improper trial conduct, including using means to embarrass, delay or burden another or suppressing evidence where there is a duty to reveal (358)
Conduct prejudicial to the administration of justice, including conduct which is the subject of a contempt finding or court sanction (276)
Filing frivolous or non-meritorious claims or pleadings (185).
And, as a catch-all, disciplinary Rule 771 provides that no lawyer shall act or comport themselves in a manner that will bring the profession into disrepute.
Freedman complains that aspirational codes or even mandatory rules are not necessary. Worse yet, he believes they are more often vague and even misleading and are inconsistent with the bar’s traditional ethic of zealous representation of our clients’ interests.
Freedman wants to know, are we simply talking about good manners in answering phone calls or being accommodating about scheduling? Because if that is what the fuss is about, he says, it is hard to justify the enormous investment of time and effort that has been lavished on the issues by judges, lawyers, and bar associations.
He argues that civil discovery rules, for instance, have created an unresolved tension between competing values. On the one hand, disclosure requirements and on the other, lawyer-client confidentiality and work product.
And yet, those ARDC complaints that I read more often than not do not end up in the formal process. ARDC reports that during 2000 the Commission docketed 5,716 investigations involving charges against 3,901 different lawyers. That is, about 5% of all registered lawyers. The Commission reports that:
1,146 cases were closed after an initial interview;
4,319 cases were closed after investigation;
224 complaints were voted after an inquiry review.
So, what happened to the triggering event? Did the lawyer change his ways? Did the letter informing that there was to be no formal action sufficiently chastise the lawyer? One wonders what more could have been made of the event.
And, you have to wonder whether we will meet a number of years from now to speak of the continuing decline of the public’s opinion of us and to share our anger or frustration on the seeming intractability of certain lawyers to understand what they are bringing down on all of us.
There are bar groups, however, that have taken the topic to the next level. The Arizona State Bar Association and the Palm Beach County Bar Association have each created a program that has provided an opportunity to address the problem in a logical and common sense way. Each of these two bar groups formed a Peer Professional Review process by which a lawyer whose behavior is clearly offensive but is not sanctionable in the disciplinary process is called to account for his/her actions. Or, as Palm Beach County puts it:
The purpose of their Peer Professional Council is to meet with attorneys who have conducted themselves in a manner inconsistent with the ideals and goals of their published standards.
In Arizona, they said the Peer Review Program was to reach conduct that did not involve a violation of the Rules of Professional Conduct but was misbehavior, nevertheless. Such as screaming, swearing and general rudeness to litigants, witnesses, opposing counsel and court personnel. Arizona guidelines had it defined what they were after in this fashion: All lawyers know it and all lawyers occasionally see it, but most members incorrectly assume nothing can be done about indecorous action.
In both places, Palm Beach County and Arizona, lawyers are called to explain themselves before a trained, experienced member of the Association. A cadre of practitioners who are known because of their reputation for fairness have been schooled in the techniques of intervention to confront the respondent with the complaint and are also trained to be ready to investigate further in order to reach a judgment on the intervenor’s part as to what went on and be able to draw a conclusion based on experience and judgment.
Hopefully, just the act of bringing the incident to the attention of such a committee will bring about a recognition on the part of the respondent so as to create a positive response in the mind of the lawyer.
What these groups have done is not designed to improve competence of lawyers, nor do they issue sanctions. It is more like the Lawyers Assistance Program (LAP) that has proved to be enormously successful in providing intervention and counseling to lawyers, primarily with alcohol problems. Peer professional intervenors in Palm Beach or Arizona are able to provide counseling or intervention to behavior problems. They become, in a way, behavior mentors.
Arizona is a volunteer program. Palm Beach is sanctioned by the Circuit Court. Each provides a central location to receive complaints; there is a screening process, each group gives notice to the offending lawyer and provides that the intervenor assigned to the case calls the lawyer and, if necessary, is able to conduct an investigation of the two sides. Each provides for early intervention, a prompt attempt to reach a solution and a brief report.
Can a Peer Professional Program succeed? Probably, if organized and staffed with care, if the intervenors are trained and if there is sufficient funding and support from the state and county bar associations. A target program limited to DuPage County that has relatively high quality members of the Bar would be a likely start.
Will all complaints be satisfactorily resolved? Probably not, but it is hoped that enough lawyers will have received the word, will have had the benefit of mentoring that might not otherwise have available to them, and the lawyers will learn in time to enjoy their practices and respond in a positive way to the adversary system.
The wonderful historian, Steven Ambrose, wrote a thin volume entitled, "Comrades, Brothers, Fathers, Heroes, Sons, Pals". In the forward he says that one of the joys of his adult life has been discovering friendships. Although the drift of his book is the friendship of men, the lesson that came from his book to me was that the same response can be said to be available to the trial bar and even to the profession as a whole.
He tells the story of two military commanders who fought at the Pegasus Bridge, where the first action of D-Day took place in June, 1944; one was Major John Howard of the British Sixth Airborne Division; the other, a German Colonel Hans von Luck. Howard was the company commander of the airborne troops that landed by glider at the Pegasus Bridge. Von Luck was the commander of the German Panzer Regiment that was charged with driving the British invaders at the Pegasus Bridge into the sea. Although they had fought bitterly at the bridge, since the war they had visited with each other, lectured together and had become friends.
Ambrose said it was the wonder of the friendship of this improbable duo that was so very special. He said it made him look forward to getting really old because he saw a chance that later in life he might develop a rewarding friendship with such men as they. Theirs was a friendship free of cant, free of competition and free of seeking advantage, a friendship rich in trust and recognition. The model these men gave him was one built on admiration and respect. They each had extremely difficult jobs and each completed his war effort with distinction, but as they met later in life they were simply comrades in arms. They were wiser than they had been as young men and more tolerant.
How wonderful it would be if by establishing a professional peer review process we could bring more lawyers to understand that it is possible to try lawsuits, totally committed to the client’s cause and still end up at the end of their careers a respected friend of their opponents, as comrades in the practice of law.