Lawyer speech triggers both civility and constitutional concerns -

Ethics

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Under ethics rules, there’s a fine line between zealous advocacy of a client and sanctionable conduct. As jurisdictions nationwide put an emphasis on lawyer civility, it’s important for attorneys to understand proscribed behavior that can run afoul of ethics rules and trigger sanctions.

In the 1985 case In Re Snyder, U.S. Supreme Court Justice Warren Burger noted that everyone involved in the judicial process owes a duty of courtesy to all other participants. And as officers of the court, “the license granted by the court requires members of the bar to conduct themselves in a manner compatible with the role of courts in the administration of justice.” When lawyers fail to follow this standard, they not only lower the bar for the profession, but they set themselves up for disciplinary action.

“A lawyer’s freedom of speech should not include the right to sling personal insults at opposing counsel or the opposing party,” notes ethics expert David Grenardo, who teaches professional responsibility at St. Mary’s University School of Law.

There are plenty of examples of what not to do in the professional discipline records. Inflammatory speech directed at judges, opposing counsel and others happens frequently in the courtroom and has been sanctioned. For example:

• In Florida Bar v. Norkin, one attorney wrote opposing counsel several inflammatory emails, including: “When is your unprofessional, ludicrous, downright unintelligent conduct going to stop? Before or after you are directed to pay my bills?”

In re Madison: Counsel informed a judge in a letter that “I do have profound doubts concerning your fitness to preside fairly over cases.”

• An attorney in Florida Bar v. Abramson told a jury that “the judge was the one that was completely disrespectful, lacking in respect, lacking in professionalism.”

• A lawyer disparaged a judge as a “clown” and a “bully” in Hancock v. Board of Professional Responsibility.

• Counsel called one judge a “lawless judge” and another “a weak man and corrupt judge” in Attorney Grievance Commission v. Frost.

The ABA Model Rules of Professional Conduct promote courteous and respectful behavior and limit offensive attorney speech. Rule 3.5(d) prohibits lawyer conduct “intended to disrupt a tribunal,” while Rule 8.2(a) prohibits a lawyer from “making a statement that the lawyer knows to be false” or with “reckless disregard” as to truth or falsity about a judge. And then there’s the catchall, Rule 8.4(d), which prohibits lawyers from “engag[ing] in conduct that is prejudicial to the administration of justice.” 

“Some lawyers may argue that they should be able to say whatever they want in the name of zealous advocacy,” Grenardo says. “Lawyers should know that their conduct and speech are regulated by the state bar and court rules because the practice of law is a privilege, not a right.” 

The push for civility

H. Scott Fingerhut, a law professor at Florida International University, explains that incivility can be traced to the adversarial nature of law practice in the U.S. “Civil and criminal litigation are both so perversely incentivized in America, and the practice of law so increasingly, stressfully competitive, bordering on cannibalistic, that perhaps civility is the best we can hope for—because the truth is both sides want to win, period, and too often do whatever it takes to do so.”

State bars have addressed the problem in myriad ways. Michigan has a special provision in its rules of professional conduct requiring lawyers to be professional and courteous to all in the legal system. Many states have so-called professionalism creeds. The New York State Bar Association hosts an annual conference titled “Lessons on Ethics and Civility.” The Utah State Bar has an Office of Professional Conduct and contains an ethics hotline and an ethics school. Illinois created a professionalism and mentoring program with the name 2Civility. The Illinois Supreme Court Commission on Professionalism 2014 statewide survey of Illinois lawyers found more than 90% of lawyers described their colleagues as generally civil/professional or very civil/very professional, while 85% said they experienced at least one incident of uncivil or unprofessional behavior in the prior six months.

“Civility and professionalism are bedrock principles essential to the legal profession,” says Jayne Reardon, who directs the 2Civility program and is the commission’s executive director. “We need judges to set firm boundaries with lawyers and not reward bad behavior.”

Making the pledge

Some jurisdictions require lawyer oaths with civility clauses. South Carolina’s civility oath reads: “To opposing parties and their counsel, I pledge fairness, integrity and civility, not only in court but also in all written and oral communications.” In 2014, the California Supreme Court amended the lawyer oath to include a civility clause. Texas followed suit in 2015. In her book Voice of Justice: Reclaiming the First Amendment Rights of Lawyers, Indiana University Robert H. McKinney School of Law professor Margaret Tarkington writes that “courts continue to require attorneys to promise compliance with rules enacted by the judiciary (even ones of dubious constitutionality) as a condition of observing or maintaining a law license.”

Some experts believe that more should be done to ensure that civility is increased in the profession.

“Since civility is that important, states should follow jurisdictions like South Carolina and Arizona and make civility mandatory,” Grenardo says. “Because incivility runs rampant in society and occurs too often in the legal profession, state bars need rules to change behavior on a large scale to fight the incivility epidemic that permeates the legal profession. Some lawyers are stubborn and will only refrain from attacking others personally or will only treat others with dignity and respect if there is a rule that requires them to refrain from those personal attacks or a rule that requires them to act civilly.”

Others worry that civility codes chill free speech and may not be applied evenly. “There are significant problems with mandating civility,” says Daniel Horwitz, a Nashville, Tennessee-based constitutional lawyer who handles professional discipline cases. “For one thing, even if mandating civility were compatible with the First Amendment—and it is not—subjective and abstract notions of civility will never be applied evenhandedly, and as such, civility campaigns both invite and guarantee selective enforcement.”

Criticizing judges

Insulting or criticizing judges is a common breach that prompts disciplinary action. “In many jurisdictions, there is no faster way to generate a speech-based disciplinary complaint than to criticize or insult a judge—even when a judge has badly erred,” Horwitz says. 

Tarkington’s book offers a similar perspective: “Courts and disciplinary authorities have used civility codes or rules that require courtesy to punish attorneys for speech critical of the judiciary.” 

Indiana University Bloomington School of Law professor Charles Gardner Geyh, who teaches courses on the legal profession and judicial conduct, warns of the pitfalls that can occur when notions of civility are applied subjectively. The concepts “can be misunderstood and misused to preserve homogeneity in an increasingly diverse profession,” Geyh notes.

“As the profession rejects its traditional niche as a white men’s club and opens its doors, spirited disagreement and dissent among its ranks are inevitable and essential, and are in no sense incompatible with basic notions of professionalism and civility.”

But Horwitz cautions against the idea that judges should be insulated from all oversight: “The notion that labeling private lawyers ‘officers of the court’ is a legitimate basis for disciplining lawyers who criticize judges is farcical.”

Nonetheless, lawyers are subject to the jurisdiction of the courts where they practice and need to be aware of the ethics rules that hold them to a higher standard, subjecting them to discipline and sanctions when they abuse the process, commit misconduct or go too far.

This article ran in the September-October 2019 issue of the ABA Journal with the headline “I Pledge to Be Civil: Lawyer speech triggers both civility and constitutional concerns.”