Reflecting on professionalism for a 'happy' New Year

Have you settled on your New Year's resolutions yet? As we approach the end of the year, there is a moment to pause for reflection before we turn the page. We have the opportunity to consider what stood out in the past year and how we could better move forward. Of the many opinions and decisions touching upon legal ethics and professional responsibility issued in 2023 one that stood out for me reminds us that civility is a critical component of professionalism, not just in the abstract, but in a very real, practical sense. One that not only impacts your peace of mind but can also hit you right in the wallet.

In Snoeck v. ExakTime Innovations, Inc. (2023) 96 Cal.App.5th 908, the lawyer prevailed in a FEHA action, recovering just over $130,000, then sought more than $2 million in legal fees. The trial court reduced the lawyer's fee by applying a .4 negative multiplier, to account for counsel's pervasive incivility toward both opposing counsel and the court. The appellate court upheld the reduction, referencing multiple emails in which counsel had made disparaging comments which defense counsel argued served no purpose in advancing the case and which appeared to be included in plaintiff's billings on multiple dates. The court also referenced attacks, made in court briefing, accusing opposing counsel of fraud on the court.

Snoeck relied on Karton v. Ari Design & Construction, Inc. (2021) 61 Cal.App.5th 734, in which incivility contributed to a two-thirds reduction in legal fees. Karton observed that "[c]ivility in litigation tends to be efficient, allowing disputants to focus on core disagreements and to minimize tangential distractions. It is a salutary incentive for counsel in fee-shifting cases to know that their own low blows may return to hit them in the pocketbook." Substantial reductions in recovery of legal fees due to incivility should give lawyers pause to reflect on how we conduct ourselves.

A recent Toronto survey found that 70% of lawyers experienced or witnessed uncivil behavior by another lawyer. Would a survey of California lawyers differ? With all of the emphasis on civility, including the numerous civility guidelines and rules developed at the state and local levels, why does incivility continue? Litigation can be very stressful. Lawyers can become personally embroiled in their client's causes. Clients can misconstrue uncivil conduct as a desirable litigation tactic. Attorneys can develop personal animosity toward their opposing counsel or the opposing party, which can negatively impact a case. Fictional attorneys in television, film, and novels may provide bad role models. Incivility can be rationalized as zealous advocacy. Rudeness and bullying tactics can become habitual.

Faced with a motion to recover fees, courts evaluate multiple factors, including incivility. One factor is the amount of the fee in proportion to the "value" of the legal services. The fee reductions in the Snoeck decision, and Karton before it, reflect the foundational premise that incivility generates fees that do not contribute "value." Snoeck specifically addressed emails that added no value. Any evaluation of the reasonableness of fees also takes into consideration the experience, "ability" and reputation of the lawyers performing the services and the "skill" needed to perform those services. Lawyers constantly engaging in incivility exhibit a deficit of skill and ability. Another factor in evaluating the reasonableness of legal fees is the time and labor "required." The Snoeck court concluded that uncivil communications and ad hominem attacks were "not necessary for the zealous representation of the client." The "work" involved in conducting one's legal practice in an uncivil manner results in "overlitigation" which is counter-productive, inefficient, fractious and thus more costly, and in the final analysis, simply not "required." Our ultimate goal as litigators is to help our clients resolve their disputes, yet incivility can delay and impair such resolution.

Civility is an important lawyering skill which may or may not be intuitive, and like all lawyering skills, requires development. The Snoeck decision stated that "Awarding the same amount of attorney fees to an uncivil lawyer as one who is civil [ ] would not constitute a reasonable fee." The Karton decision observed that "Excellent lawyers deserve higher fees, and excellent lawyers are civil." Those with long experience in litigation know this and have had the pleasure of dealing with many excellent and civil lawyers. Dealing with an uncivil opposing counsel generates unnecessary friction that, inevitably, takes more time, without advancing the case. Drafting and responding to personal attack emails and repeated invective-laden diatribes takes time. Engaging in and responding to ad hominem and disparaging colloquy during depositions burdens the exercise. Responding to accusations in court briefings burdens both opposing counsel and the court. Such tactics serve no real purpose in advancing the case. The process of developing the lawyering skill of civility requires not only the knowledge that civility is a component of professionalism, but also emotional intelligence, self-awareness, and self-management.

Client management also factors into civility because clients themselves often encourage aggressive tactics. While aggressive strategies that move the litigation forward are reasonable when conducted with an appropriate level of professionalism, incivility without purpose only serves to "blemish the dignity of the profession." Part of conducting oneself as a highly professional lawyer involves explaining this important distinction to clients. The many guidelines on civility provide ready reference for any appropriate client education about where lawyers should draw the line, as do the Snoeck and Karton decisions. As the Snoeck court indicated, frustration with litigation does not give lawyers a license to attack or berate defense counsel or the court, nor to use a tone that is belittling, and antagonistic, or verging on contemptuous.

Before the year closes, consider again the oath new lawyers take. Resolve as an officer of the court to conduct your practice of the law with dignity, courtesy and integrity. "Happy" New Year.