Part One of “The Trouble with Civility” centered on the fictional Atticus Finch and the fictional trial of the fictional Tom Robinson. There is much opinion in Part Two but no fiction.
The term “civility” is curiously absent from the Indiana Rules of Professional Conduct, perhaps because the concept of civility defies that degree of concise description befitting a rule. To my thinking, “civility” may be seen to exist on a continuum between decorum and integrity. I searched for a definition of “civility” in post-1969 Indiana caselaw and found nothing. I looked at the five cases since 2000 wherein the SCOTSI has used the word “civility,” and I am still lacking a concise definition. To paraphrase the late Justice Potter Stewart, I must say that while I can’t define civility, I know it when I see it. Likewise, I recognize incivility when I see it.
Even before my admission to the bar (in 1975) I heard about the “gentlemen’s practice of law” which too often involved a collegial pat on the back while the dagger was being inserted or two “opposing” lawyers in conference dividing the spoils of a broken marriage or a broken life. It wasn’t the gender bias of the term that bothered me. Rather, it was the hypocrisy or the pretense of civility obscuring greed and deception.
I once knew two partners, each having a good reputation for civility. Perhaps within the same year each partner took me aside to brag (“Who ya gonna tell?”) about having cheated the other by scoring an unreported fee. Was this civil?
One day many years ago I was approached by a recently divorced man whose Decree left him, his former wife, and his mother as tenants in common respecting the residence where the mother and the ex-wife continued to live. It seems that the mother had gratuitously put her live-in son and daughter-in-law on the deed through some misguided estate planning. By the time he saw me the divorced man couldn’t bear the thought of his ex-wife living in that family residence. He made it clear that he “didn’t care how much money” it would take for a partition of the indivisible real estate. When I asked “what about your mother?” I was told that she should live in an apartment. I sent that vile man away. A couple of hundred feet from my office he found a lawyer (known for both civility and piety) to take his money and do his bidding. Was this civil?
One day many years ago I had the occasion to represent a man who, after being beaten senseless with nunchaku (a/k/a nunchucks) over a parking space, retreated into his home and emerged with a shotgun. His attacker was gone or at a safe distance when police arrived. Dazed and bleeding from the head, the man ranted at the police without firing or even aiming the shotgun. The prosecutor decided on a charge of attempted murder of the police officers. In the course of the initial court appearance I described (to the Court) the absurdity of the attempted murder charge. I also filed a motion to dismiss. I was disappointed that the motion to dismiss was initially overruled but delighted that my client was awarded a rare adversary probable cause hearing. There was a finding of “no probable cause,” and the charge was dismissed. Meanwhile, a supervisor in the prosecutor’s office (known for his professionalism) wrote to my “boss” complaining of my overt criticism (in court) of the PC Affidavit and Information. He even included a few paragraphs of transcript. Was I civil in shaming a prosecutor for overcharging? Was the prosecutor civil in attempting to shame me?
Some years later I went to court with a client in tow to defend against a request for a preliminary junction. The court took a recess. I had stepped out to the lobby to stretch my legs when my client grabbed me by the arm, insisting that I return to the court room. And there stood my opposing counsel (known for his civility) standing at my counsel table viewing the contents of my file. Was this civil? By the way, opposing counsel lost.
There was a firm (known for its genteel civility) which occupied office space near my own office. When the firm (which no longer exists) had a notion to expand its occupied space, two tenants were in the way: a court reporting office; and me. I learned later (and by accident) that my law firm neighbors spoke to the court reporters about their willingness to move but spoke to the building manager (rather than to me) about the prospects of putting me out. Was this civil?
While litigating against another firm, I received a phone call from the associate who had appeared in the case with a firm partner. Presumably, the firm partner was “lead counsel.” The associate explained that the partner was out of town and couldn’t attend the hearing I had requested on a motion to compel discovery. I agreed to the continuance. Within a week or so my mail held a motion for partial summary judgment that I could not respond to adequately without the discovery that I never obtained. I telephoned the associate to ask him how he could ask me to continue hearing on my motion to compel when he was about to file for summary judgment. The unapologetic response was that his deception was not barred by the Rules of Professional Conduct. Was this civil? The firm in question (known for its civility) has not since received from me any consent to continuance or to an enlargement of time, and it never will. My point here is that civility, however defined, must be genuine and reciprocal to have meaning. Unilateral civility granted to scoundrels is simply an abomination.
On any given day I may encounter opposing counsel: lying in court about who thrice postponed a settlement conference; backdating a certificate of service and/or mailing; falsely certifying that contents of an appellate Appendix were part of the trial court record; or sending one of those silly and offensive “I-will-dominate-you” letters intended for the eyes of his impressionable, overcharged client. For my part, I try to begin any new case with absolute civility until such time that I am rewarded with incivility or a lack of integrity.
I mentioned above the continuum of decorum, civility, and integrity. Of these elements, integrity is the most important. Although integrity may (occasionally) exist in the absence of civility, no true civility can exist in the absence of integrity. While integrity should be an abundant self-renewing resource for the legal profession, it is too often in short supply. I would much prefer an opposing counsel who is short on manners but long on integrity than one who has mastered the appearance of civility while behaving without honor.
The trouble with civility from Part One is that sometimes a client needs a barbarian. The trouble with civility from Part Two is that too many members of the bar do not practice true civility and (accordingly) are unworthy recipients of the civility of others.
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