MICHAEL D. MARCUS’S MEDIATION MESSAGE NO. 103
CIVILITY PART 1– TREAT EACH OTHER WITH RESPECT
In 2003, when I started writing Mediation Messages and Arbitration Insights, I commented only on subjects directly related to mediations and arbitrations. I broadened the base in 2011 by discussing case law that impacted litigation practice and, more particularly, admissible evidence at trial. Now, three years later, I’m going to devote some of these monthly messages to the lack of civility in the practice of law because little has been done to correct the problem despite a lot of rhetoric that it’s got to stop. My thesis is that aspirational but otherwise unenforceable bromides (see, for example, the State Bar’s Attorney Guidelines of Civility and Professionalism) aren’t the solution because lawyers are not impressed by unenforceable standards; instead, like children, they need rules that, if not followed, can lead to consequences. And, there are enough standards in case law, statutes (for instance, the Business and Professions Code) and the Rules of Professional Conduct to define how lawyers should act, especially in court.
Let’s start with the broad generalization that lawyers should treat each other with respect. While there is no statute or Rule of Professional Conduct requiring such conduct, Kirsch v. Duryea (1978) 21 Cal.3d 303 and Tenderloin Housing Clinic, Inc. v. Sparks (1992) 8 Cal.App.4th 299 do so hold. Kirsch states, “In addition to competing strategies, an attorney is often confronted with clashing obligations imposed by our system of justice. An attorney has an obligation not only to protect his client’s interests but also to respect the legitimate interests of fellow members of the bar, the judiciary, and the administration of justice.” (Id. at p. 309; accord, In re Marriage of Flaherty (1982) 31 Cal.3d 637, 647.) Tenderloin emphasizes the above rule and then notes that it “makes it obvious that even if a legal step taken or legal procedure pursued has justification in law, the timing thereof may be oppressive and may constitute harassment if it unjustifiably neglects or ignores the legitimate interest of a fellow attorney.” (Id. at p. 306.)
Respect is not earned easily in the legal community, especially when there are thousands of lawyers preoccupied by other pressing needs. This is not a problem in legal communities with fewer number of lawyers who know one another. But, in more populous cities or practices, where anonymity prevails, lawyers generally do not develop close relationships with opposing counsel. To bridge this issue and attempt to establish a relationship with opposing counsel after commencing a controversy or litigation, call or email opposing counsel and suggest an early in person meeting at a neutral location to discuss issues that may arise, such as service of papers, order of discovery and vacation dates. This one-on-one will make it more difficult for opposing counsel to treat each other harshly when they have now have a face and identity.
Judge Michael D. Marcus (Ret.)
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Copyright Michael D. Marcus, October 2014