Civility

In re civility

“A judge is not supposed to know anything about the facts of life until they have been presented in evidence and explained to him at least three times.” Lord Chief Justice Parker (1900–1972), British judge.

“Judge—A law student who marks his own examination-papers.” H.L. Mencken (1880–1956).

Did it rankle you when they passed standards of civility for lawyers? It upset me, as though I was a child in need of a life lesson in courtesy. They might as well have legislated rules on breathing, for discourtesy was anathema in my family and one did not need to be reminded to treat others with kindness. Such behavior just wasn’t allowed, and my early professional life reinforced the principles of civility. The charm of practicing law was the graciousness of fellow counsel.
So what happened? A few years ago, a lawyer was disciplined in Connecticut for writing a letter to a probate judge that he had “prostituted the integrity of his office”. The lawyer’s defense? Free speech of course, and that he had written the letter as a private citizen. I don’t think so, and neither did the Connecticut Superior Court. At the same time, the Commission on Judicial Conduct censured a New York Supreme Court Justice for some rather discourteous behavior. Justice Lewis V. Dye thought it necessary to ask if an attorney was Jewish, and when counsel asked the Honorable Justice Dye to explain he said that he grew up in North Carolina where he had never seen a Jew or a West Indian and “the only Chinese people I saw were in the laundry.” Nice.
In a 1986 tenant eviction proceeding in New York City, an attorney called a woman companion of an adverse party “sleazy” resulting in a physical confrontation in the courthouse. He also called opposing counsel a “f------ liar” and that he was “going to kick his ass at trial”. The defense? He did it too. Nah, Nah, Nah.
These cases are sad, because the misbehavior of one attorney reflects badly on us all. For reasons unknown to me, the older I get the more I feel the necessity to defend the civility of the profession. And I do not buy the idea that incivility is just a “downstate phenomenon”. Remember Morgan Bloodgood? He was the Malta Town Justice who decided to write to a defendant, David Rosenblum, who had not paid a traffic ticket. After sarcastically admonishing the defendant on Town Justice letterhead, he signed off, “So long Kikie.” The Commission on Judicial Conduct rightfully removed Mr. Bloodgood in 1981 finding “When a judge demonstrates prejudice by deliberately using the term ‘kikie’, public confidence in the integrity of the courts is diminished, and the administration of justice is seriously compromised.”
Within the past few years I have had the pleasure of having a sitting judge ask me in open court when and where I was admitted to the practice of law after I made several overruled evidentiary objections. I know I can sometimes get under a judge’s skin, but I thought that was a little much. In any event, my skin is pretty thick and it didn’t offend me so much as make me feel compunctious for the litigants. Their respect for the process designed for the resolution of their dispute undoubtedly disintegrated at that point. Courts exist for people to resolve disputes in a civilized manner. If the lawyers and judges can’t act with courtesy towards each other, how can we expect citizens to do the same?
For the most part, these are isolated incidents, but they do happen. How do we resolve the problem? Simple. Remember that it takes two to Tango, and the invitation to incivility when met with courtesy dies on the vine. As my deceased fellow matrimonial practitioner and friend Stanley Rosen used to say, “I kill them with kindness.” You are not a better lawyer if you are perceived as tough, difficult or intransigent. You are not a good practitioner if you write to a judge or opposing counsel suggesting that the opposing litigant is a lying scoundrel. While that may make your client feel good, it does not promote the resolution of anything and constitutes pandering to your client. Let me tell you what I mean.
Several years ago a client of mine was waiting to get her hair and God knows what else done in a beauty salon. Another woman was railing on and on about the bastard Shyster who represented her husband. She wasn’t getting any support because she was humiliated on the stand by this slimy creep who insinuated that she was seeking support when she was fully capable of gainful employment. When asked the name of the troglodytic pettifogger, she replied, “Michael Friedman”. Immediately three women getting their hair dyed, dried or deep-fried pulled paper and pencil out of their pocketbooks and wrote my name down. Do I want to represent these women? No thank you.
When I meet clients for the first time, I usually say, “What can I do for you?” The answer seems to ferret out the crazies, but not always. Several times a year, I hear, “Mr. Friedman I want to hire you because I understand you are a son of a bitch.” Of course, I politely suggest that the potential client take his business elsewhere. I am not interested in representing those who seek retribution or bloodletting from their counsel, and if you take on such a client you will undoubtedly have a very unhappy camper in a few months. You see, they were unhappy to begin with, and you cannot and should not become the legal hammer for their dissatisfaction with life. They feel they have been dealt a bad hand, and eventually you will become just one more bad card. You are not the sword of their incivility.
By and large the judges and counsel I meet are a pleasure. We understand that our function is to guide our clients through the maze of the justice system to achieve a resolution. While our clients may struggle with each other, there is no need for uncivil behavior from counsel. If nothing else, we should be guided by the Jim Conboy standard. For those of you who have never met Mr. Conboy, he is a senior partner in Carter and Conboy. If you seek “civility” & “lawyer” on your favorite search engine, a picture of Mr. Conboy should come up. He has defined a very successful career by courteous courtroom behavior. A few years ago, the Albany County Bar Association nominated Mr. Conboy for the Attorney Professionalism Award of the New York State Bar Association. The accolades for Mr. Conboy from the judiciary, counsel, physicians and clients were astounding. In spite of some lobbying to the contrary, he receid the award. Whenever I and many others wonder how to behave in our firms and local courtrooms, we think of what Mr. Conboy would do and try to emulate him. If you do, you will be much happier and a better lawyer.

22 NYCRR 1200
Grunberg v. Feller, 132 Misc.2nd 738