Be Nice: More States Are Treating Incivility as a Possible Ethics Violation

G. M. Filisko, Be Nice: More States Are Treating Incivility as a Possible Ethics Violation, A.B.A J. (April 2012)
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Issues of incivility in the legal profession are becoming a greater concern given the heated general tone of public discourse.  Incivility may be on the rise because of the increase in pleadings and discovery, the pressure lawyers are under to bill their hours, and the media portrayal of lawyers that give clients an idea of how their lawyer ought to behave and give the lawyer an idea of how he/she ought to behave.

Although there is no clear consensus of what is uncivil behavior, attacking a position or facts is probably within bounds; however, attacking an individual, “their training, personality, color, ethnicity, or age,” is where most would draw the line.

Lawyers who behave uncivility can be subject to court sanctions and increasingly are subject to discipline for violating ethics rules.  Some states have enacted provisions that explicitly address civility.  However, there is no direct provision addressing civility in the ABA Model Rules of Professional Conduct, Model Rule 1.1 (addressing competence) and Model Rule 8.4 (addressing dishonesty, fraud, deceit or misrepresentation, and conduct “that is prejudicial to the administration of justice” are the two most common provisions cited as implicating civility issues.

This article provides a few examples where disciplinary actions were imposed for uncivil behavior that demonstrate the unpredictability of what behavior a disciplinary panel will find merits a reprimand or disbarment and what such disciplinary actions courts will uphold.