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Do I have an ethical obligation to be nice?

Stacie Rosenzweig

Stacie Rosenzweig is an attorney at Halling & Cayo S.C. in Milwaukee. Her practice centers on working with lawyers and other credentialed professionals in a variety of licensing, professional responsibility and disciplinary proceedings.

Civility, niceness, and more specifically incivility and meanness, are big news today.

From divisive politics to anonymous rants on the Internet, hostility seems to be everywhere.  A recent study by Weber Shandwick and Powell Tate with KRC Research found that 75 percent of Americans see incivility at a “crisis level,” while many people complain of incivility on the road, while shopping, in their neighborhoods, and online.

A major exception? Eighty-six percent of respondents said that their workplace was a civil one (though 34 percent have experienced incivility at work in the past). People are actually finding refuge from the world’s rough edges…in their offices.

The published study, Civility in America VII: The State of Civility, breaks down results only by broad profession and industry, and does not indicate where lawyers and law firms fit in. We are all thinking we work for, or with, the other 14 percent, aren’t we? We all know “that guy”—you know, that person whose name on a notice of retainer makes you go, “oh, jeez, that guy.” That guy (who isn’t necessarily a guy) who interrupts everyone at the deposition, is overly aggressive for no reason, openly gloats over a minor win at a motion hearing, is rude to his or her own paralegal, and won’t give you an extension of time to respond to the million-document discovery request despite your emergency appendectomy.  Yeah, jeez, that guy.

You don’t know that guy? Maybe you are that guy. And if you are that guy, chances are you won’t admit it. Despite most people considering incivility a “crisis,” 94 percent of the survey respondents said they are always or usually polite and respectful to others.

Ethically, can you be that guy? The Supreme Court Rules prescribe and proscribe certain standards of behavior—lawyers need to adhere to standards of professionalism, courtesy, good manners and dignity, in court (SCR 62.02), should avoid doing things simply to harass or maliciously injure another (SCR 20:3.1), and shouldn’t engage in dishonest, fraudulent, or deceitful conduct (SCR 20:8.4). However, the Rules themselves do not include an affirmative requirement to “be nice,” especially outside of court. It’s not unusual to see versions of Eddie Haskell in practice—polite and polished in court, but foul mouthed and condescending when nobody is looking.  Barring extremes, that sort of conduct isn’t really regulated.

What sort of extremes? The Attorney’s Oath every lawyer takes to qualify for admission to practice requires us to “abstain from all offensive personality” (SCR 40.15) and lawyers have been disciplined for failing to do so (SCR 20:8.4(g)).

“Offensive personality” is one of those nebulous phrases that mean different things to different people. But thus far, the Supreme Court has held that the term is not so vague or overbroad as to be unconstitutional when applied to an attorney’s professional conduct. There is no bright-line test, but the reported decisions in cases where violations were found were more or less clear: You’re not allowed to scream at a hearing examiner and take over the hearing. You’re not allowed to assault someone in a register in probate office, or threaten to kill an adverse party. You can’t distribute flyers with a picture of your child’s father, caption it “accused serial rapist” and call for a boycott of his wife’s law firm.

Writing a snarky letter (or several) to a local newspaper, thus far, is safe. We will defer judgment about snarky legal ethics columns to a later date.

That said, most instances of incivility probably don’t rise to the level of a violation of the oath or the Supreme Court Rules in general (and are therefore not publicized in a formal complaint or reported decision).  Even so, grievances are often peppered with complaints about an attorney’s tone or demeanor; even if tone and demeanor (again, barring extremes) are not proper subjects for discipline by themselves, they can make a minor violation seem worse.

There are times, of course, when advocacy for your client means you can’t be nice—sure, there are occasions when you feel sorry for opposing lawyers who missed a deadline. But unless your clients are feeling sorry, too, you can’t make excuses and have to tell them to file a motion for relief. Sometimes, you need to use a more strident posture in court or more bellicose language in a brief than you might feel comfortable using, because the situation demands it.  For some people, it’s simply a matter of being constitutionally more aggressive than others – a trait that will come out in writing and in arguments.

Still, “being nice” is different from not being a jerk, and even if the situation or your temperament dictates you can’t do the former, you don’t have to engage in the latter. Giving in to the urge to be “that guy” can also make life miserable for people around you—53 percent of those responding to the Civility in America survey have declined to buy from a company because of the lack of civility shown by its representatives, and 24 percent have actually quit a job that was in an uncivil workplace.

Ultimately, although downright egregious behavior may result in discipline, whether or not to be “that guy” is, at this moment, more of a reputational decision than an ethical one.

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