A Good Lawyer & the Golden Rule

Article by David Maron Featured Author

Posted May 2012

Incivility is one of the greatest threats to our justice system. Whether rudeness or outright personal attacks, unprofessional behavior (once the exception) has become more frequent. Certainly at times the tension and stress of the adversary system can take its toll on our better judgment. As Luther Munford's article on the consequences of "legal warfare" notes: "Much unprofessional conduct occurs when attorneys substitute feeling for thinking. Fear and frustrated expectations stir up emotions block good judgment, and lead to uncontrolled haranguing of judges, colleagues, and witnesses."¹ That accurately assesses a majority of the problem; but other unprofessional conduct is not so understandably explained. Instead it has become a tactic—part of an intentional, Machiavellian win "at all costs" strategy that, sadly, is rewarded with success and often is tolerated as part of the "adversary system."

"…Incivility diminishes the practice of law and its reputation and, not surprisingly, erodes the public trust and respect for the justice system."

Whether a lapse in judgment or intentional, incivility diminishes the practice of law and its reputation and, not surprisingly, erodes the public trust and respect for the justice system. And it is not always an ethics issue, either. While some of these practices may violate the Mississippi Rules of Professional Conduct and/or Rule 11, many do not. Simply expecting lawyers to accept these practices as appropriate for the "changing times" is not a solution. Nor would additional rules² solve the problem because, as Winston Churchill once observed, "[with] 10,000 regulations, you destroy all respect for the law."

The issue belongs to lawyers—each of us. Beyond formal regulations, the law is one of the few remaining self-governing professions—a fact that places both the blame and the solution for the current situation primarily in our hands. And self-governance is not limited to following or enforcing the written rules. In fact, the preamble to our Rules of Professional Conduct acknowledges that in addition to the rules, "a lawyer is also guided by personal conscience and the approbation of professional peers."³ Our collective conscience hasn't changed that dramatically; but it may be asleep.

In the Foreword to his ethics treatise, Professor Jeffrey Jackson hints at a potential source of the problem: The Rules of Professional Conduct "mandate honesty, loyalty, competence, diligence, discretion, fairness and respect for clients, adversaries, third parties, and for the courts. Good lawyers understood this even before the MRPC made that plain."⁴

What is "good lawyer?" Good lawyers don't always win—just read To Kill a Mockingbird. Financial success can't be the sole measure of a good lawyer either. It means something more; something like "honorable" — a word that, outside the military and formal titles, has been left the shelf collecting dust. But words like "honorable" and "integrity" have meaning and best reflect the authentic character of a true professional — a good lawyer.

True professionalism is not a shallow, public display for important people (judges, bosses, and clients); nor can it be reduced to (the appearance of) congeniality among adversaries. As Supreme Court Justice Anthony Kennedy observed "civility is not some bumper sticker slogan, 'have you hugged your adversary today?' Civility is the mark of an accomplished and superb professional, but it is even more than this. It is an end in itself." Civility, integrity, professionalism are not theoretical aspirations either. They must be foundational to our profession not merely because they make our jobs more pleasant (which they do), but because they are essential to a functioning and respected justice system that the public entrusted to us.

If, as Justice Kennedy observed, civility should be an end in itself: "what should it look like in practice? And what practical steps can we take we ensure that it remains a lasting legacy of our profession?" Those were far easier questions a generation ago. But today we have principled standards that capture the essence of professionalism and civility and tell us what it should look like in practice. Two excellent examples are The Mississippi Bar's A Lawyer's Creed ⁵ and the American Board of Trial Advocates' (ABOTA) Principles Of Civility, Integrity, And Professionalism.⁶ Mississippi Bar's Lawyers' Creed provides straightforward guidance.

The Creed answers our first question (what it should look like in practice) by requiring honor, dignity and integrity; and it gives meaningful guidance by describing a lawyer's duty to his clients and colleagues in the practice of law applying the timeless principle of the golden rule. As with the Biblical injunction "so whatever you wish that others would do to you, do also to them…" ⁷ our duty is not passive restraint. It requires action. To ensure these standards endure within the practice of law requires that we: (1) control our own behavior and (2) positively influence those around us.

As a self-regulating profession, we own this issue both individually and corporately. Reform won't happen on its own. It starts with each of us. Our second question is more personal: How can we ensure that these qualities endure? In the Foreword to his ethics treatise Professor Jackson begins "In law practice, I had a mentor…" Mentoring is vital to both personal character and professional development — and each is essential to producing the next generation of good lawyers. Mentoring is teaching through both words and actions; consistently following professional standards of our practice (honesty, integrity, civility, and courtesy); encouraging respect for the law; and reflecting a commitment to the practice as a learned profession.

Whether formal ⁸ or informal, mentoring is not optional. Professor Jackson's mentor taught him that good lawyers conformed to norms of professional behavior even without rules and importantly "even when not being observed by others." Mentoring (or at least influence) happens whether we know it or not because rarely is no one watching. Perhaps, more than any well-meaning instruction, what is done under adversity and against hostility — especially when the correct thing is also the unpopular thing — is probably the most instructive and remembered teachers of these values.

Since this issue belongs largely to lawyers, what can we do? Here's a few practical guides.

1. Don't start it.
   And when you feel drawn into the fray, don't take the bait and respond in kind. As the old saying goes: "Never argue with an idiot, someone watching might not be able to tell the difference."
2. Talk about it first.
   When you receive a "hot" letter, "toxic" email, or the unilaterally set deposition, try practicing the golden rule. It may not succeed; but at least first try to talk with opposing counsel — by phone, at lunch or over a cup of coffee.
3. Keep perspective on what is at stake.
   While responding in kind might make us feel better in the short term (about 3 seconds after pressing "send") it rarely does anything to advance our client's cause, our own credibility, the reputation of the profession, or — most importantly — the public's respect and trust for the justice system.
4. Don't be Rambo.
   Remember guerrilla warfare is a terrorist tactic. Zealous representation never requires hostility or cheap shots. If the NFL thinks they're dangerous, not to mention bad for its image, lawyers should learn a lesson.
5. Guard your credibility & reputation.
   The importance of reputation with the court and among your peers cannot be overstated. In his article, How to Persuade a Judge — The Art of Legal Writing, U. S. District Judge Daniel P. Jordan succinctly captured the issue: "Judges talk, and they know who does great work and who they can and cannot trust. This is not to say that judges intentionally alter rulings to favor certain attorneys; but the line between success and failure is often thin, and your reputation can affect the judge's attitude toward your arguments." ⁹
6. Never make it personal.
   For the times a lawyer's conduct is the issue, the solution still will involve the facts and the law, not whether you feel that your opponent is a no-good, lying liar — however true it may be. Instead, make your record. Introduce relevant evidence. Argue the law. Do everything possible to keep the dispute on the facts and law instead of a personal attack. Zealous advocacy is not venomous advocacy and ad hominem attacks should always be avoided. They rarely are persuasive; and, worse, when you (inevitably) overstate your case, they will backfire. As the Mississippi Supreme Court has cautioned: "This litany of unreliable representations…compels us to place little reliance on [counsel's] briefs and we strongly urge [him] to carefully consider and check the accuracy of his representations to this Court before signing them." ¹⁰
7. Get to know your fellow lawyers.
   Long before conflict has a chance to arise, get to know your colleagues as more than names on letterhead, an email address or signatures on a pleading. Get involved with your state and local bar associations. One of the greatest benefits of the Mississippi Bar, CABA and other bar associations is the opportunity to develop relationships with fellow lawyers whether at the bar convention, other social events, or working together on public service projects.
8. Avoid even the seemingly harmless jab.
   Remember "a soft answer turns away wrath, but a harsh word stirs up anger." ¹¹ By consciously refusing to practice or tolerate even "incremental" incivility, (angry letter, sarcastic argument) your relationship with others is less likely to escalate to scorched-earth or personal attacks. And when someone does push your button, wait. Let your letter sit for an hour. Ask someone else to read your email or draft motion before it is sent.
9. If you need to ask, the answer is usually "no."
   The Rules of Professional Conduct and the "personal conscience and the approbation of professional peers" provide sufficient clarity in most situations. But what if (and especially if) there is no rule that seems to directly provide guidance? The Mississippi Bar's Lawyers Creed incorporates the principles of the golden rule. And if the golden rule proves too esoteric, try the following: The "smell test." The newspaper headline test. The exhibit to a motion test. The "would I want the person I most admire to know what I've done/said" test.

These suggestions are certainly not all-inclusive. But hopefully they offer some practical guidance. The Mississippi Bar Lawyers Creed calls us to "strive to keep our business a profession and our profession a calling in the spirit of public service." Ultimately, to keep true professionalism engrained in the practice of law, let's all be vigilant examples and defenders of these principles.

1. Luther T. Munford, The Peacemaker Test: Designing Legal Rights to Reduce Legal Warfare, 12 HARV. NEG L. REV. 377, 413 (2007).
2. The Mississippi Rules address honesty, diligence, candor, loyalty, but some state bar associations have formally included civility as part of their oath of admission. Florida's oath, for example, includes the following pledge for its new admittees: "To opposing parties and their counsel, I pledge fairness, integrity, and civility, not only in court, but also in all written and oral communications."
3. Miss R. Prof Cond. Preamble (emphasis added).
4. Jeffrey Jackson, Donald Campbell, Professional Responsibilities for Mississippi Lawyers, MLI Press (2010) at iii (emphasis added).
5. http://www.msbar.org/admin/spotimages/2400.pdf
6. https://www.abota.org/index.cfm?pg=ProfEthicsCivility
7. See Matthew 7:12 (emphasis added),
8. Many law firms have formal mentoring programs and the Mississippi Bar's James O. Dukes Professionalism Program also includes a pilot mentoring program to match up mentors with new bar admittees. Information on this is available on the Mississippi Bar website at www.msbar.org/professionalism.php
9. Judge Daniel P. Jordan III, How to Persuade a Judge—The Art of Legal Writing, The Mississippi Lawyer, 11, 14 (March-April 2010).
10. In re Blake, 912 So. 2d 907, 913 (Miss 2005).
11. See Proverbs 15:1