Jamie Smith

Upon learning that I am a litigation attorney, many of my peers react in a similar manner—some variation on the theme of “…but you’re too nice to be a lawyer.” During my first months of practice, I chalked this reaction up to the various misconceptions and damning stereotypes cast on the legal profession and its members. After all, South Carolina attorneys are bound to the Lawyer’s Oath, under which each of this State’s lawyer’s pledged, to opposing parties and their counsel, “fairness, integrity and civility . . . not only in court, but also in all written and oral communications.” And so, standing firmly by the oath I’d so freshly and solemnly sworn to, I brushed off the comments of my peers and advised them with conviction that I am not too nice to be a lawyer; in fact, being nice is a necessary part of the job.

Today, after just three years of practice, experience has revealed that my vision of what that Civility Oath means to our profession is nothing short of idealistic. While most attorneys I have worked with thus far have been cordial throughout the litigation process, I have encountered my share of unpleasant, and even vicious, interactions with opposing counsel that blatantly violate the Lawyer’s Oath. There are, unfortunately, members of our bar who do not fully grasp the meaning or importance of the Oath so far as civility is concerned.

And So I Find Myself Revisiting the Question: What Is Civility?

Though the language offered by the South Carolina Supreme Court is somewhat vague, recent decisions provide ample guidance to delineate what behavior is expected from attorneys in their communications with opposing counsel, opposing parties, and the court. The South Carolina Supreme Court advises that “[a]ttorneys’ obedience to ethical precepts may require abstention from what in other circumstances might be constitutionally protected speech.”¹ The Civility Oath prohibits attorneys from “attacking” one another, requires that we “behave in a civilized and professional manner” while advocating for our clients,² and mandates that we “temper [our] criticisms in accordance with the professional standards of conduct.”³ In other words, the Lawyer’s Oath serves to ensure that our State’s attorneys abide by the golden rule—treat others as you wish to be treated. And so, while the civility requirement does not necessarily require attorneys to be nice, we are obligated to treat one another with respect and professionalism.

Why Is Civility Necessary in an Adversarial Profession?

A pervasive argument proffered by critics and violators of the civility requirement is that an attorney’s duty to zealously advocate for his clients may require the use of tactics that could amount to incivility; the two duties cannot always be carried out in harmony.⁴ However, the lawyer’s duty to zealously advocate and his duty to behave civilly can and must be simultaneously accomplished. Our Supreme Court has deemed the requirement that attorneys act with civility the “corresponding obligation” to zealous representation of clients,⁵ and the South Carolina Rules of Professional Conduct provide that a lawyer’s obligation to zealously advocate must be discharged “while maintaining a professional, courteous and civil attitude toward all persons involved in the legal system.”⁶

That the lawyer’s obligation to pursue a client’s interest effectively and with zeal does not extend beyond the civility requirement sheds light on the incredible importance our courts place on its prescribed standard of attorney conduct. Our Supreme Court reasons that the Civility Oath is necessary to protect the integrity of lawyer-client relationships, to prevent attorneys from engaging in conduct that compromises the integrity of the judicial process, and to promote objective representation.⁷

Perhaps most importantly, though, the civility requirement protects the attorneys themselves. The legal profession, particularly litigation, is by its very nature adversarial. The constant opposition attorneys face creates stressors unique to this field, resulting in alarming consequences. A recent study funded by the American Bar Association and the Hazelden Betty Ford Foundation shows that lawyers are far more at risk for psychological ailments than non-lawyers. One in five lawyers suffers from a substance abuse problem. Twenty-eight percent of attorneys nationwide suffer from depression, and 19% report symptoms of anxiety.⁸ Bar members suffer from depression, alcohol and substance abuse, and—in South Carolina—suicide, more so than any other profession in the United States. A recent ABA published survey revealed that practicing as an associate in a law firm is the most miserable job in America.⁹

The civility requirement is a necessary means to relieve some of the hostility that inevitably exists in the legal profession and to ensure that attorneys treat opposing counsel and parties with respect and professionalism. Removing the disparaging remarks, offensive tactics, and personal attacks from the already stressful conditions inherent to this profession is a step toward bettering these frightening statistics and developing more cordial relationships with the attorneys across the table.

How Can the Civility Oath Better the Legal Profession?

Despite South Carolina’s 2004 introduction of the Civility Oath, the problem of incivility persists, and the 2015–2016 Annual Report of Lawyer Discipline in South Carolina reports that complaints of incivility accounted for 1.62% of reported misconduct.¹⁰ Though a seemingly innocuous percentage, personal experience and conversations with other legal practitioners suggest that many instances of incivility go unreported. The concept of turning in a fellow attorney to the Office of Disciplinary Counsel is an uncomfortable one; filing a grievance may give rise to additional conflict, retaliation, or bad blood with an attorney with whom you may work future cases. Moreover, most lawyers already carry a tremendous workload—reporting misconduct and assisting in a subsequent investigation simply lengthens an already overwhelming to-do list. Often, the easiest way to handle incivility may be to ignore it, to shake it off, or to behave in like kind—none of which address the root of the problem.

The Civility Oath provides attorneys with a key to bettering the legal profession, but we must shed the reluctance to use it. Whatever the excuse may be to let incivility slide, failure to take action when attorneys demonstrate egregious or pervasive acts of incivility renders the Civility Oath ineffective. What purpose does the requirement serve if we do not enforce it? As attorneys, we fight to protect the rights of our clients every day; we need expand upon that advocacy to promote the well-being of ourselves and colleagues. If communications with opposing counsel begin to cross the civility threshold, we should remind our counterpart of the civility oath rather than acquiescing or reciprocating with hostility. If a firm reminder that unacceptable behavior carries disciplinary consequences fails to resolve an instance of misconduct, then follow through on enforcing those consequences. To practice law is a privilege, not a right, and in order to maintain that privilege attorneys must behave with dignity and professionalism. Failure to hold our fellow lawyers accountable to that standard constitutes a disservice to legal profession and members of this Bar.

That being said, we as lawyers must also hold ourselves accountable for our own behavior. We must endeavor to uphold the Civility Oath and serve as examples to our colleagues. One can easily lose his temper or lash out when litigation becomes heated. However, when we find our blood beginning to boil, that is the not the time to react; it is the time to step away and regain composure and objectivity. It is imperative that we remain conscientious of the golden rule, and before sending a stinging email or making an angry phone call, take the time to consider whether, if the tables were turned, one could objectively and honestly label the intended communication as professional and civilized. We must remind ourselves that, behind the buffer of letters and emails, the opposition is not faceless—he is a person. Let us stay mindful of the fact that a person has vulnerable days—that a person could be battling a chronic illness, mourning the loss of a loved one, or experiencing marital difficulties. A person might fall within the 28% of attorneys struggling with depression or be at risk of surrendering to substance abuse. Incivility toward an opposing attorney may have more harmful consequences than one might think. Before launching a personal attack or undignified retort, we must consider the troubling statistics that plague the legal profession and acknowledge the importance of upholding the Civility Oath—the necessity of respect and cordiality—in combating the disquieting reality that lawyers, as people, face.

At risk of sounding cliché, attorneys should strive to be the change. In doing so, we must continually and honestly ask ourselves: do my actions fuel the problem or promote the solution? And, above all else, we must recognize that there is only one acceptable answer to that question.
______________________________________________________
¹In re Anonymous Member of S.C. Bar, 392 S.C. 328, 709 S.E.2d 633 (2011).
²Id.
³In re White, 391 S.C. 581, 707 S.E.2d 411, reinstatement granted, 393 S.C. 227, 712 S.E.2d 436 (2011).
⁴Id; David A. Grenardo, Enforcing Civility: Holding Attorneys to a Higher Standard of Conduct, http://www.americanbar.org/content/dam/aba/administrative/professional_responsibility/
39th_conf_session14_enforcing_civility_holding_attorneys_to_a_higher_standard_of_conduct.authcheckdam.pdf , (last visited Nov. 14, 2016).
⁵In re White at 589, 707 S.E.2d at 415.
⁶S.C. RULES OF PROF’L CONDUCT r. 407.
⁷In re Anonymous Member of the S.C. Bar, 392 S.C. at 337, 709 S.E.2d at 638.
⁸Alexia Elejalde-Ruiz, High rates of alcohol abuse, depression among U.S. attorneys, study says, THE CHI. TRIB. (Feb. 3, 2016, 4:51 PM), http://www.chicagotribune.com/business/ct-lawyers-problem-drinkers-0204-biz-20160203-story.html.
⁹Mike Etheridge, Lawyers in Search of Soul: A Journey Towards Wholeness, THE A.B.A., http://www.americanbar.org/content/dam/aba/administrative/young_lawyers/ meetings/2015/midyear_meeting/lawyers_journey_toward_wholeness.authcheckdam.pdf (last visited Nov. 13, 2016)
¹⁰Annual Report of Lawyer Discipline in South Carolina 2015-2016, http://www.judicial.state.sc.us/disccounsel/CLC2016.pdf (last visited November 14, 2016),