My previous column commenting on the judge’s decision to cut legal fees in part because of courtesy (or lack of courtesy) had some interesting discussion. Some felt that judges should take a more active role in ensuring that lawyers behave civilly. Others think that lawyers need to be aggressive at times if it is in the best interests of their clients.
Almost everyone believes that lawyers should act civilly at all times. But the problem is, they can’t do it all the time. This is because courtesy usually benefits the winning side.
I have been told that sometimes incivility is a show. An opposing attorney might be a good friend, but his clients expect resistance from their attorneys, especially if they are paid a substantial guardian. Even if the opposing lawyer wants to resolve the matter efficiently, he cannot if his clients do not allow it.
And how should a lawyer react when they have good reason to believe that the opposing lawyer is lying? Scott Greenfield suggests that even using the civil euphemism of the liar can still be offensive.
But what if the opposing lawyer lies? Don’t you call him a liar because it’s rude? The court is right to turn into “destructive reciprocity” and take time that could have been used for “socially productive purposes”, whatever that means, demanding the judge’s time to “monitor hostilities” . But what do you do when the lawyer lies in a most polite tone? Of course, you can respond with similar courtesy that the attorney’s presentation of the facts gives off an unpleasant odor that tends to attract large numbers of flies, but still feelings can be hurt.
As I mentioned earlier, if courtesy is going to be a factor in deciding a case, when does the lawyer cross the line to become rude? We can agree that a physical confrontation meets this standard. This also applies to sending threatening e-mails to opposing lawyers who are characterized by profanity. What if the opposing attorney or his clients fail to submit documents when the attorney requests it? Is that rude behavior? When the standard is set by the personal sensitivity of the judge or the offended attorney, problems arise.
Let’s look at this from a different perspective. Suppose a customer is evicted for not paying rent due to COVID-19. One day an eviction procedure will be initiated. The customer has no money because he was laid off and spent everything on food and medicine. Assuming that the client has few options, should his lawyer say to his client: “Sorry, but I have to be polite to a lawyer because he is right”?
The consequence of the introduction of civilization rules could hinder the representation of a client by a lawyer who is facing the collection, eviction or deportation of debts. Would attorneys be inclined to represent these people if a passionate request for their case could result in sanctions for someone believing they are rude? And do I have to mention that most of the people who face these problems are people of color?
Perhaps it would help if the judges, and those who believe strongly in politeness at all costs, lawyers advise what to do when courtesy does not help their clients in need get their homes back or stay in the United States.
In a nutshell, perhaps a distinction should be made between civility, which is specifically used for harassment and delay, and not the passionate lawsuit against the case of their customers. I understand the line is blurred at times, but I’m sure the judges will recognize that any dispute cannot be resolved peacefully.
Steven Chung is a tax attorney based in Los Angeles, California. He helps people with basic tax planning and tax dispute resolution. He is also personable with people with large student loans. He can be reached by email at [email protected] Or you can connect with him on Twitter (@stevenchung) and connect with him LinkedIn.