Originally published on the December 12, 2009 issue of the Oklahoma Bar Journal available online at:
The Monster in the Mirror: Declining Civility in the Practice of Law, 80 Okla. Bar J. 2545 (2009).
Most of us begin to learn the importance of good manners from our families. This process continues at church, in school, and social settings as we learn about the standards for behavior considered appropriate in particular places and situations. Most young attorneys are first exposed to the accepted manners of the legal profession in law school, but very little education in legal professionalism is a part of the core curriculum. As a result, an interesting paradox has developed in the legal profession.
Senior lawyers lament the lack of civility in up and coming lawyers. They share war stories to reinforce their notions that the profession is taking turn for the worse. Senior lawyers say that in days past the practice of law was more fun. The next thing thy do is go out and tell law students and young attorneys about how the best and brightest attorneys are stepping outside the bounds of civility.
It is hard to argue that many attorneys abandon what little professionalism they have learn in law school once they are placed in the pressure-filled marketplace of private practice.1 Many attorneys lose sight of the human side of the law and adopt a win-at-all-costs strategy in their quest to win cases, increase profits, gain clients, and build strong reputations. The question many ask is why is this happening in the next generation of lawyers.
While it may be a tough pill to swallow, the answer question is staring back at senior lawyers every morning when they look in the mirror. It is hard to find a senior attorney who does not have a war story or two thy love to share. It may be a personal experience or an attorney they know or have worked with, but the stories tend to have a common theme. The theme that echoes through the halls of law schools is that underhandedness and ethical tightrope walking is rewarded handsomely. A recent article published by the American Bar Association held up seven men a “Lions of the Trial Bar.”2 This article went on to detail why these men had obtained the status that they had. Two examples stood out as why the young lawyers of today are not as civil as senior lawyers feel they should be.
The first “Lion” that comes to mind is an attorney out of Georgia by the mane of Bobby Lee Cook.3 I do not know Mr. Cook; I have no first hand experience to comment about his legal skills. No doubt, he is fine attorney. That said, the subhead on his write up says it all: “Bobby Lee Cook: Kickin’ Asses that needed Kickin’” The bio goes on to detail how he pulled a sheriff out of the witness box and beat him senseless in open court.
The second “Lion” is Joe Jamail.4 The ABA article on Mr. Jamail details his less colorful moments, such as forging documents to get into the marines. However, the Delaware Supreme Court has forever memorialized the bellwether of legal incivility in the case of Paramount Communications Inc. v. QVC Network Inc.5 In the Paramount case, Mr. Jamail was admonished by the Court that in telling an opposing attorney that he “could gag a maggot of a meat wagon,” among other things that he had not only served his client well, but has engaged in misconduct.6
How can we expect a generation of lawyers to grow up to be civil in their dealings within the bounds of our legal system, when we are telling them that attorney’s like Mr. Jamail and Mr. Cook are the best of the best. While these men are successful attorneys, they are held up as role models and their conduct does not seem to match with what other attorneys want to see in co-counsel and opposing counsel. The antics described may be exceptions to generally civil conduct by these two men, but these are the stories being celebrated, as these men are held out as the finest examples of trail attorneys in practice today.
Of course, the easy way out would be to pass these men off as another bar’s problem. It would be easy to say that the lions of the Oklahoma bar do not act in such an uncivil manner. To do so would be disingenuous at best.
There is an attorney right here in Oklahoma whom I have been told repeatedly over the course of my legal education is the pinnacle of fine lawyering and an excellent example of what an attorney should aspire to. Yet, the one war story I know about this attorney is when he intentionally buried opposing counsel with banker boxes full of paper in response to a discovery request. He produced, as many documents as he could possibly conceive of justifying to the court, some of which he knew were not responsive to the request. When this attorney told me the story first hand, he admitted to doing so in an effort to hide a “smoking gun” memo. This lawyer went on admit that he buried opposing counsel knowing that they lacked the capacity to review all the documents produced before trial. The story goes on to show that this attorney got a verdict in favor of his client, but in subsequent litigation the memo was located and the results of subsequent trials were not so favorable to the client.
Is this a man I should emulate? I have been told repeatedly the correct answer to that question is yes. However, how do I reconcile his actions with the cry for civility as I begin my career in the next few months? The message I receiving is that I should aspire to be like these seasoned, respected attorneys. I am told stories about how they acted out in sometimes blatantly improper, uncivil ways. I am told stories about times they stretched the ethical rules to their breaking point. In the next breath, I am told that I need to act in a much more civil manner than what is described in the war stories I commonly hear.
While I am not in a position to say whether civility is truly declining, I can offer this observation as a soon to be member of the bar. Actions speak much louder than words. When someone tells me to emulate Mr. Jamail and then describes how he abuses opposing counsel or tells me be like the attorney in next office, and then takes me over to hear how buried the smoking gun in an avalanche of unresponsive paper, what lesson do they really expect me to take away?
For the duration of my legal education, I have been sent conflicting messages as to what the proper bounds of civility really are. Being the first in my family, immediate and extended, my perceptions of how to play nice with others and have a successful career are still in the early formative stages. Many of my classmates find themselves in similar situations and are entering an increasingly competitive legal market. How do we make sure that people like me avoid the lack civility detailed earlier in this article?
To cure the ailment of incivility in the practice of law, it needs to be treated much the same way you would any illness you face. The disease has been diagnosed as declining civility in the practice of law. The medication that is need is a strong mentoring program.
The syrup may look like the penicillin a child takes for an earache, but it could not be farther from the truth. Mentoring will not provide an overnight cure, but rather a steady does over a prolonged period of time will be required if civility it to be maintained at the levels many would like to see.
Mentors need to be willing to take time way from their everyday practice to help a younger attorney learn not only proper practice techniques, but also how to play well with others. While mentoring is important within the walls of a firm, it needs to reach beyond the confines of firms and their new associates. The reality of the legal profession is that most attorneys will find work in small firms and offices as they come out of school and form their legal personality. There is a danger in such scenarios that mentoring will be in sufficient or even nonexistent. Lawyers who are fully invested in the future of the Oklahoma legal community need to step up to the plate and take the time to mold the next generation of lawyers and in doing so they can help influence the civility of practice overall.
Additionally, for mentoring to be successful, we need to overcome the myth that one person can be an adequate roll model. Most new lawyers will need multiple mentors to help them find their voice within the legal community. As their careers mature, they will naturally gravitate away from some mentors and closer to others who have built a practice similar to the one they are building and have done so in a way that resonates with their personality.
To stem the erosion of civility in the practice of law, mentors are needed. Much as the blind listen to the familiar tones of audible signals to cut through the sounds of a busy city and guide them to safety as they cross the street, law students and young attorneys need a strong familiar voice to drown out the current cacophony of messages besieging them. When they have that voice to follow, they will develop into well-rounded members of the bar, who understand what civility truly means.
1For a discussion of economic pressures and their contribution to the decline of civility in see Amy Mashburn, Professionalism in the Practice of Law, 28 VAL. U. L. REV. 657, 689 (1994).
2http://www.abajournal.com/news/article/meet_our_7_over_70_the_lions_of_the_trial_bar/ (last viewed November 29, 2009)
3http://www.abajournal.com/magazine/article/bobby_lee_cook (last viewed November 27, 2009) (last viewed November 27, 2009)
4http://www.abajournal.com/news/article/joe_jamail (last viewed November 29, 2009)
5Paramount Communications Inc. v. QVC Network Inc., 637 A.2d 34 (Del. 1994).
6Id. at 54.