This year, Law Day is being held on May 5, 2023, and the theme is Cornerstones of Democracy: Civics, Civility, and Collaboration.1 This theme could not be more relevant. The pandemic has kept many of us isolated and remote. The toll this has taken is, in many ways, incalculable and still uncertain. As we regroup and begin live appearances and gatherings, we cannot discount the importance of civility to the bench, to our colleagues, and to our clients.
Civility is not only desired; it is written into the rules of professional conduct. The entire rules of professional conduct hinge on maintaining proper decorum, advocacy for the client, fairness to counsel, respect for the tribunal, and adherence to the law. Selected captions of some of the rules support these requirements.
Rule 3.3: Candor Toward the Tribunal
Rule 3.4. Fairness to Opposing Party and Counsel
Rule 4.1. Truthfulness in Statements to Others
Rule 4.4. Respect for Rights of Third Persons 2
Civility permeates the rules of civil procedure as well. R.I.Civ. P. 37 provides in pertinent part:
Rule 37. Failure to Make or Cooperate in Discovery: Sanctions
(a) Motion for Order Compelling Discovery. A party, upon reasonable notice to other parties and all persons affected thereby, may apply for an order compelling discovery as follows:
…
(2) Motion. If a deponent fails to answer a question propounded or submitted under Rules 30 and 31, or a corporation or other entity fails to make a designation under Rule 30(b)(6) or 31(a), or a party fails to answer an interrogatory submitted under Rule 33, or if a party, in response to a request for production or inspection submitted under Rule 34, fails to respond that inspection will be permitted as requested or fails to permit inspection as requested, the discovering party may move for an order compelling an answer, or a designation, or an order compelling production or inspection in accordance with the request. The motion must include a certification that the movant has in good faith conferred or attempted to confer with the person or party failing to make the discovery in an effort to secure the information or material without court action. When taking a deposition on oral examination, the proponent of the question may complete or adjourn the examination before applying for an order.3
(emphasis added)
In an article published by The American Bar Association on September 18, 2014, Jayne R. Reardon wrote:
The concept of civility is broad. The French and Latin etymologies of the word suggest, roughly, “relating to citizens.” In its earliest use, the term referred to exhibiting good behavior for the good of a community. The early Greeks thought that civility was both a private virtue and a public necessity, which functioned to hold the state together. Some writers equate civility with respect. So, civility is a behavioral code of decency or respect that is the hallmark of living as citizens in the same state.4
Sometimes there appears to be a tension between civility and zealous advocacy. There need not be. Zealous advocacy does not require the attorney to defer to every whim or desire of the client, nor does civility require the advocate to remain uncritical or acquiesce to every request from opposing counsel. An advocate can be uncompromising, yet maintain civility.
A colleague of ours, now retired, had a very successful family court practice. In every case of which I was aware of her involvement, she maintained a firm, often unyielding position on behalf of her client. Yet she did so in the most civil manner possible, always explaining why her client would not yield or why the proposal was unacceptable. She would involve her client in the ongoing negotiations, and provide the client options, but maintain a position, often testing it before the court. She was a zealous but civil advocate.
I am also aware of circumstances in which the advocate was no less zealous but failed to balance his zealousness with civility. One such instance involves a colleague who was undergoing a tragic personal situation involving the critical illness of a close family relative. He was under order to produce certain documents by a particular time and requested an extension of time from the court to submit the documents. In his motion, he spelled out the reason for the request. The submission was not time-critical to any pending issues in the case. The opposing counsel objected. The hearing judge asked the reason for the objection, and counsel responded that “the client requested it.” The hearing judge was not happy and severely admonished counsel, reminding him of his obligation not to inflict pain just for the sake of it.
Another instance involved a case scheduled for a jury trial. The court requested pre-trial memoranda, and the advocate briefed an issue that would have effectively nullified the claims presented by his opponent. The position taken by the advocate was, however, untenable since the issue raised had been corrected by statute. This was brought to the attention of the advocate, who indicated that he had been aware of his untenable position all along but notwithstanding thought he should present it anyway. Very uncivil.
Many of us have had to deal with similar circumstances from time to time. We have also had bad days where we perhaps could have been more civil in our conduct. Hopefully, they will remain a small exception to the rule. When they do occur, they stand out because they are offensive to our rules of conduct and interaction.
Thus, as we adjust from the isolation caused by the pandemic, let’s remember, as our Law Day theme notes, that the cornerstone of our democracy is civics, civility, and collaboration. Let’s then do our best to remain zealous, yet civil advocates and counselors.
Endnotes
1 There is still time to volunteer to participate in Law Day if you have not done so already! Bar members interested in volunteering for this important program are asked to contact Director of Communications, Erin Cute by email at ecute@ribar.com.
2 Article V. Rules of Professional Conduct Preamble and ... – rhode island (no date). Disciplinary Board. Available at: https://www.courts.ri.gov/PublicResources/disciplinaryboard/PDF/Article5.pdf (Accessed: February 13, 2023).
3 Superior Court Rules of Civil procedure – rhode island (no date). Rhode Island Superior Court. Available at: https://www.courts.ri.gov/efiling/PDF/Rules-Superior_Court_Rules_of_Civil_Procedure.pdf (Accessed: February 13, 2023).
4 Reardon, Jayne, Civility as the Core of Professionalism (9/8/14 ABA Section: Business Law Today) https://www.americanbar.org/groups/business_law/publications/blt/2014/09/02_reardon/.