Rambo Litigator Or Chivalrous Knight?
LIKE knights of olde, lawyers are supposed to be bound by a code of conduct. Embracing duty, loyalty, integrity, gallantry, honor, and courtesy, the knights' code - what we call chivalry - earned the trust of sovereign and subject. Today many thoughtful people in the legal profession are concerned about a loss of chivalry in their own realm.
Of course, they don't use that quaint term. ``Civility'' and ``professionalism'' are the buzz words today among attorneys, judges, and scholars who are worried about eroding standards of lawyerly conduct. But the point is the same: Too many lawyers now are behaving less like members of a high-minded order than like street brawlers with a diploma.
Polls of lawyers and judges, along with corridor talk at legal conferences and letters to legal publications, reveal a growing sense throughout the profession that law practice is becoming nasty and brutish. A Massachusetts trial lawyers' monthly journal recently devoted an entire issue to the problem.
Complaints range from conduct that is simply boorish, such as lawyers calling each other names or hanging up on each other, to sneaky practices intended to inconvenience an opponent, such as scheduling depositions at inopportune times or refusing to grant routine extensions of deadlines.
Worse still, many observers say, is an increase in litigation gamesmanship that raises opposing clients' legal costs, (such as sweeping discovery requests), and that burdens the courts (such as filing unnecessary motions).
Experts attribute the decline in civility, as it is often called, to intensified competition among lawyers and demands from clients to win at all costs.
So-called Rambo lawyering has taken much of the pleasure out of law practice, many attorneys say. More important to the bar as a whole, critics say, the erosion of professional conduct will further reduce public confidence in the legal system. ``If people lose faith that disputes can be fairly and efficiently resolved through litigation, they will look for other means,'' says Thomas Elkind, a Boston lawyer who helped draft a code of civil-litigation standards just adopted by the Boston Bar Association. ``It's in lawyers' self-interest to make the system work as smoothly and congenially as possible.''
Other bar groups and court systems also have devised ``civility codes'' for lawyers practicing in their jurisdictions. The American Bar Association is giving professional conduct high visibility in its conferences and publications, as well. ``The ABA is at war with bad lawyering, because it kills the reputation of all lawyers,'' says New York City attorney Seth Rosner, chairman of the ABA's Standing Committee on Professionalism.
Though related to the movement to raise ethical standards among lawyers, the concern about civility focuses less on morality and more on decency. ``Ethics are what's required of lawyers; professionalism is what's expected,'' says Edward Waller Jr., a lawyer in Tampa, Fla., and co-chair of the Ethics and Professionalism Committee of the ABA's Litigation Section.
The civility codes are generally regarded as ``admonitory'' or ``aspirational,'' and violations will not result in punishment by states' lawyer-discipline tribunals. But judges have the authority to enforce the codes in their own courtrooms, and some judges express a new resolve to sanction misbehaving attorneys.
Law schools, which started paying more attention to legal ethics a decade ago, may start working professional conduct into the curriculum as well. One innovator in this area is William Weston at University of Baltimore Law School. In his course on professional responsibility, Professor Weston has students act out scenes in ``A Man for All Seasons'' in which Sir Thomas More tries to figure out his obligations as a lawyer to King Henry VIII.
A few skeptics think that attempts by the bar to get hard-nosed attorneys to mind their manners are quixotic. But for many others, the image of the lawyer as chivalrous knight is neither absurd nor unattainable.