Scott Farrell comments:

Can someone in an adversarial, aggressive profession conduct themselves with chivalry and honor — and be successful? This author, who is also a practicing attorney, reminds us that there are pitfalls to approaching such a job with a win-at-all-costs attitude. It diminishes professionalism and self-respect, and in the long run, it may not even be in the client’s best interest. Attorneys are fighters, but they are also champions. Read this piece, then read Prof. Shannon French’s article Why Do Warriors Need A Code? — the similarity between these two articles is a testimony to the enduring value of Chivalry Today.

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The Advocacy System and the Code of Chivalry

The legal profession is giving much current lip service to the importance of “civility.” Rambo-style litigators are being branded and disparaged by the legal profession. Yet the truth is that most clients don’t give a damn about their council’s interpersonal behavior. In fact, most want war. They want a mean, junkyard dog to carry their cause. The client wants an attorney to reflect his own belligerent attitude toward the enemy. In short, clients want a warrior to do battle for them against their adversaries.

Acrimony is an expected part of the rules of engagement. The public may simply not stand for an elevated standard of civility. The client may ultimately reject the congenial lawyer and replace a pussycat with a polecat. This is especially true where the client benefits from unsavory professional practices.

Are the concepts of being a warrior and acting with civility mutually inconsistent? Most warrior classes historically have had a recognized code of conduct. This may range from an overly courteous medieval Code of Chivalry to a brutal Code of Bushido. No matter — some recognized standards of behavior are common to virtually all warrior castes.

In some states, like Michigan, as a part of the oath of office, an attorney is required to swear under oath that they will refrain and abstain from all “offensive personality.” In New York, a state not noted for its easy-going population, they have attempted to elevate the standards by adopting a Unified Court System. Here are some of its provisions:

• Lawyers should conduct themselves with dignity and refrain from engaging in sets of rudeness and disrespect.
• When consistent with their client’s interest, lawyers should cooperate with opposing counsel in an effort to avoid litigation and resolve litigation that has already commenced.
• The timing of service of papers should not be designed to cause disadvantage to the party receiving the papers.
• A lawyer should adhere to express promises and agreements with other counsel.
• Lawyers should not engage in conduct intended primarily to harass or humiliate witnesses.

So, at last in such states, the attorney whose personal conduct is obnoxious and is closer to the Bushido end of the behavior spectrum is at risk of losing the right to remain a member of the warrior class of litigators. Rudeness, incivility, crankiness or idiosyncratic behavior at some point on the conduct continuum can cross the threshold into unprofessional behavior.

Going Blind One Eye At A Time

Many attorneys operate just inside the ragged edge of the perceived behavior envelope. Weighing their behavior and deciding when sanctions or expulsion from the professional warrior class is appropriate is a difficult task. It is principally the responsibility of the various states’ professional licensing entities to decide where that threshold lies and when it is crossed. Their determinations should properly be a true reflection of the group’s norms and standards, and should neither be too broad or narrow.

Yet a lawyer’s job is to be contentious. An attorney is expected to act as a warrior, doing battle for the client because by definition, there is a disagreement. That makes them inherently disagreeable. But when assertiveness is taken too far, as is true with a military warrior’s atrocities, the professional whose personal behavior exceeds the perceived bounds of professional decency is out of control and needs to be sanctioned.

One of the principal dangers of an unrestricted lack of a civility and all-out war is that it will induce retaliatory behavior or matching conduct that reflects the conduct received. There is a tendency when a grenade is thrown over the fence to simply toss one back in kind: An-eye-for-an-eye is considered by many to be acceptable behavior. Thus, the conduct of one “bad apple” can taint the barrel by its infectious affect on others as a whole. The tenor of conduct tends to degenerate to its lowest common denominator.

In addition, overly gratuitous or obnoxious behavior can run up costs to the client and produce delay because it invites reflective relation. This can work against the interests of the client. Having to deal with thrown grenades of misconduct takes time, and that means money. Just as in war, dirty tricks require containment and set the standard for response.

By maintaining some minimal code of legal chivalry and professional conduct, focus can be maintained on key issues. Prussian General Carl von Clausewitz maintained that war should be directed to advance the purposes of the contest and achieve the objective. No one fights a war gratuitously and merely for the sake of doing so.

Likewise, gratuitous rudeness is a cultural (or lack thereof) phenomenon. It has nothing to do with objectives, overall goals or strategy. At best, it could be a perceived means to the desired end. The problem is that it can work at cross-purpose to the very end desired. It can provide a powerful incentive to the other side that can motivate resistance and retaliation.

The Eastern District of Michigan has even gone to the extreme step of establishing a “civility plan,” with an Advisory Group to propose a plan and guidelines. The desired effect was to reduce expense and delay in civil cases. The means to their desired end is to “foster congeniality.” They apparently feel that the client’s objective can be achieved without the adversaries having to wear a “war face” and operate in an atmosphere of open hostility.

The Warrior’s Reflection

A major collateral benefit hoped for by improving civility between lawyers is to improve the general image of attorneys. By operating at a higher degree of professionalism, and defocusing on the sleazy, junkyard dog image (such as portrayed by Danny Devito in The Rainmaker) some members of the bar hope that an increase in goodwill and a more positive image will result in the eyes of the public.

However, it’s difficult to breed out inherent personality traits in most individuals, and the very type of individual that is attracted to the rancor and discord of litigation brings that same attitude with them into the profession. Nothing short of a full frontal lobotomy, neutering or outright disbarment will change many or most of these “hard core” types. However, if accepted standards are violated as the result of an obnoxious personality that operates outside the envelope of acceptable behavior, a proper personality or attitude may be a prerequisite to remain admitted to the practice.

The bottom line is that a professional does not have to be a jerk to be a success. Decency can be effective, too. The concepts of ethics, civility, professionalism and advocacy are not mutually exclusive. One can still be a tough and fair individual and still be a respected member of the “warrior” class of litigators and attorneys. The warriors can treat fellow members of their class with respect, dignity and civility and still advance the cause of their patrons and clients.

© 2004 John Scott Hoff

About the author: John Scott Hoff is a trial attorney and partner in the Chicago law firm of Hoff & Garley, P.C. He is a 1975 graduate of Southwestern School of Law. Mr. Hoff has been a member of the Nebraska State Bar Association since 1983. This article has been digested by permission from “Attorneys as Warriors,” which appeared in the Dec. 1998 edition of The Nebraska Lawyer. You can also download the pdf file of the full, original text.