Bloomberg Law
March 23, 2020, 8:01 AM

INSIGHT: Attorneys Should Relearn Rules of Civility

Gerald Sauer
Gerald Sauer
Sauer & Wagner LLP

Recently, a judge before whom I appeared told me that I had an “old-school sense of ethics.” Her comment took me by surprise, but upon further reflection I realized that she was right: I always wear a suit and tie to court; I stand up when I’m speaking to a judge, and I treat witnesses and opposing counsel with respect. I’m decidedly “old school.”

How sad. That I’m considered an outlier in my profession speaks to the pervasive degradation of the practice of law. In a society increasingly defined by the norms of reality TV, it seems to have become acceptable for lawyers to push buttons and break rules.

Win-at-Any-Cost Mentality

Michael Avenatti was convicted for extortion when he engaged in a classic “shake-down” of athletic giant Nike: Pay me more than $20 million or I’ll go public with your misdeeds. The New York jury, fortunately, didn’t buy Avenatti’s argument that this was simply what tough, aggressive lawyers do.

But Avenatti is not alone. We are all watching the wholesale adoption of a win-at-any-cost mentality that conflates the practice of law with competing on Survivor, getting a rose on The Bachelor, and stealing signs in order to “fix” major league baseball games. Yes, it’s easier to seek forgiveness than to ask for permission, but some lines should never be crossed.

Within the past few months, hefty sanctions were imposed by a California judge against Morgan Lewis, an international law firm with approximately 1,900 attorneys, for discovery abuses. Another judge denied sanctions against Tesla counsel Sheppard Mullin, another international law firm, for similar alleged discovery abuses. These were not junior lawyer mistakes; they were calculated strategies of respected law firms.

That lawyers broke rules is no longer newsworthy. The news is that in at least one case they were assessed monetary sanctions commensurate with their wrongful conduct.

How difficult it must be for judges to rein in rogue attorneys in a ”win at any cost” legal Wild West. In my many decades of practice, I’ve watched legal and ethics lines increasingly being crossed, with judges simply throwing up their hands and looking the other way.

As we’ve become complacent about attorneys ignoring the rules that govern legal proceedings, we’ve also found it easy to discard basic rules of civility. A California lawyer was recently removed from a case after sending expletive-laden emails to opposing counsel, including one telling his adversary to “eat a bowl of dicks.” The lawyer argued that this was just a “negotiating tactic” done “for effect” and was not intended to actually be considered personal insults. He claimed a constitutional right to free speech, and an absolute privilege for litigation-related communications.

The lawyer may not have broken any rules, but he violated something even more fundamental: basic tenets of civility and decorum. How much lower can the profession sink?

There was a time, not that long ago, when the practice of law was honorable, and the judicial process was accorded respect. Lawyers stood when addressing a judge in court, and they addressed one another with appropriate and professional language and demeanor. In England, criminal barristers, as well as solicitors in civil trials, are required to wear robes and, in many cases, wigs to bring in a sense of formality and solemnity to the proceedings. Imagine, just for a moment, if American lawyers were required to do the same. Would the change in apparel remind attorneys that they are officers of the court and not rabid dogs fighting over a bone?

Bring Back ‘Old School Ethics’

In today’s “anything goes” culture, there is little to generate awe and respect toward lawyers or the judicial system. People come to court—as jurors, witnesses, litigants and observers—and are, in many places, confronted with buildings in disrepair. In Los Angeles, where I practice, it’s not uncommon to find filthy hallways and dirty or non-functioning bathrooms. Add to this attorneys dressed in casual clothes who trade barbs with each other, use language that used to be bleeped on TV, and show little regard for the judge.

Is it any wonder that courthouses are viewed no differently than WWF knock-down venues? Bearing in mind that many of our politicians are also attorneys, it’s easy to understand why statehouses across the country, as well as the U.S. Capitol in Washington, are considered places of filth. We hardly blink these days when our elected representatives engage in sordid conduct or hurl insults at each other across the aisle.

Just imagine, for a moment, if we were to bring “old school ethics” back to the courtroom. Like the new coronavirus, this germ could actually be contagious. When attorneys begin according their profession and colleagues the respect to which they’re entitled, politicians might also learn to behave in a more civilized manner toward each other. Civility is the engine that drives communication, and legislators could, we hope, learn what it means to reach across the aisle.

It’s long past time for lawyers to look in the mirror and begin taking steps to police themselves. The rules—legal rules, ethics standards, and principles of civility—were established not for the purpose of being pushed and broken but to ensure a system of fairness.

This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners.

Author Information

Gerald Sauer is a founding partner at Sauer & Wagner LLP in Los Angeles, specializing in employment, business and intellectual property law.