NYS Bar Issues New Civility Guidelines for Lawyers

Thanks in large part to the proliferation of social media (and, I would argue, the current WH occupant) civility has been going the way of the horse-and-buggy in public discourse. Emails, Tweets, Instagram, etc etc have made it easy and the norm to be rude, offensive and demeaning in a variety of communication platforms.

So now comes the New York State Bar Association trying to civilize an ornery group: lawyers. It’s House of Delegates in February of this year, issued new “Standards of Civility for the Legal Profession.” The standards will be presented to the administrative board of the state court system. If adopted by the administrative board, they will give more support to those reviewing lawyer complaints but they remain mostly aspirational as they don’t set consequences for a breach of the standards.

As a NY litigator for over 30 years, I find that as with most situations in life, the vast majority of lawyers do not need civility rules, they are just civil; and those that need civility rules won’t have their conduct changed because NYSBA decides to issue new standards.

Lawyers really just need to abide by one rule written long ago:

Do unto others as you would have others do unto you.”

In my NY Practice class at Touro Law School, I advise the lawyers-to-be that despite how large a pool of lawyers there are litigating and practicing in New York, it is a very small circle and your reputation quickly precedes you. I tell the young lawyers at my firm the same thing. They have quickly developed their own lists of which lawyers are unnecessarily combative, offensive, disrespectful, rude, and petty. I tel them I expect our firm to be be very aggressive and direct in representing our clients without being any of those things.

I have found that emails have also lead to more hostility. Lawyers, up at night , working late, see a response to an earlier email of theirs from an adversary, and they lose their damn minds about a word or phrase that they perceive as a slight or as a twisting of their words. Immediately they send out a “rant and rave” email back without thinking it through. I have attached quite a few of those to motion papers as exhibits and they look bad in the light of day. Yelling at your adversary over the phone was never usually preserved so there was plausible deniability. Not so much anymore.

So the Bar wants to do what it can to promote and increase civility? Great! I am on board. Here are some of the main points of the new Standards:

  • A lawyer should not impose deadlines that are more onerous than necessary or appropriate to achieve legitimate commercial and other client-related outcomes.
  • A lawyer should focus on the importance of politeness and decorum, including such elements as the formality of the setting, the sensitivities of those present and the interests of the client.
  • A lawyer should be careful not to proceed without proper authorization or otherwise imply that authority from the client has been obtained when such is not the case.
  • A lawyer should promptly return telephone calls and electronic communications and answer correspondence reasonably requiring a response, as appropriate.
  • Lawyers should not mislead.

OK those are fair rules. These new codes should not need to be written down; this is basic common sense and civility that should already be a mandatory part of every lawyer’s practice. But having them in writing, disseminated from the State Bar, may help those of us that occasionally have to bring motions in court to spank an unruly child lawyer. The Standards provide no guidance on what courts should do when breaches of these Standards occur and provide no punishment or discipline when they are breached, however. So its kind of like this:

The Standards also make clear that they apply to lawyers who do transactions and not just litigators. NYSBA even set out a code of conduct for judges:

I. A Judge should be patient, courteous and civil to lawyers, parties and witnesses.

A. A Judge should maintain control over the proceedings and insure that they are conducted in a civil manner.

B. Judges should not employ hostile, demeaning or humiliating words in opinions or in written or oral communications with lawyers, parties or witnesses

C. Judges should, to the extent consistent with the efficient conduct of litigation and other demands on the court, be considerate of the schedules of lawyers, parties and witnesses when scheduling hearings, meetings or conferences.

D. Judges should be punctual in convening all trials, hearings, meetings and conferences; if delayed, they should notify counsel when possible.

E. Judges should make all reasonable efforts to decide promptly all matters presented to them for decision.

F. Judges should use their best efforts to insure that court personnel under their direction act civilly toward lawyers, parties and witnesses.

Many judges in the NYC Metropolitan area break almost all of these standards on a regular basis, particularly the “Judges should be punctual. . ” part. I have been in many courtrooms where the nastiest, rudest, least civil person is wearing a black robe. You would think for $200,000+ a year, they could at least get on the bench on time and treat you with respect. Is that really too much to ask? Hopefully seeing this code in writing will give those members of the judiciary a goal to aspire to.

Practicing in New York is hard enough. Lots of competition, overcrowded courts, impatient court staff. Practitioners can make the road smoother for all of us by meeting these minimal civility guidelines. Let’s see how it plays out.

Follow me on Twitter @oscarmichelen@gmail.com

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