A guide to civility

Issue June 2006

At its last meeting, the Massachusetts Bar Association House of Delegates approved the “Civility Guidelines for Family Law Attorneys” proposed by the Family Law Section Council. I commend the council and its chair, Pauline Quirion, for their exemplary work in creating and presenting this proposal. They researched the issues thoroughly, sought and received the approval of numerous affected and interested sections and groups and presented the persuasive support needed to convince the House of the worthiness of the guidelines. The guidelines provide specific rules of expected behavior for family law practitioners, which recognize the unique practice in the probate and family law area.

I personally had been skeptical of civility guidelines for many years. My skepticism arose from a House of Delegates meeting more than a dozen years ago after the most eloquent and persuasive speech I have ever heard given at a House meeting. With apologies to all involved for the variance between my memory and what actually occurred, let me relate my recollection of the event.

A proposal for civility guidelines was brought before the House by one of the section councils. It was well crafted, reasonable and obviously the product of a lot of hard work. I reviewed it, thought its aspirational goals laudable and concluded, as the term is used, it was a “no-brainer.” My sense from watching the other delegates as the proposal was presented and discussed was that my sentiments were with those of the overwhelming majority. It was then that Shirley Doyle spoke.

Shirley pointed out that in our profession there was a fundamental expectation that we legal professionals would conduct ourselves with courtesy and dignity in all dealings. Our oaths required it and the orderly operation of our judicial system demanded it. New lawyers should be guided by the more experienced in proper deportment not by a set of regulations. Further, the conduct of those lawyers who would not be civil would not be improved by a set of MBA guidelines without anyone to enforce them. My memory obviously does not do her speech justice, but I do know that after she was finished, the delegates voted overwhelmingly to table the measure.

Although I still regard Shirley’s speech as the best I’ve heard at the MBA, I have set aside most of my skepticism regarding the “Civility Guidelines for Family Law Attorneys.” Her arguments were valid and persuasive when made, but a generation has passed. Things have changed, and not for the better.

Instances of discourtesy and incivility are by no means limited to the practice of family law. However, as the Family Law Section appropriately noted in its report, domestic cases are unique. Litigants involved in family disputes are often angry, hurt, at their emotional breaking points and in their most unreasonable frames of mind. The client’s emotional turmoil sometimes becomes confused with the lawyer’s duty of zealous representation. It appears that sometimes clients expect or even demand that the lawyer share their anger.

Lawyers practicing in the Family Court are often solo practitioners or from small firms. New lawyers are now less likely to be mentored by more experienced practitioners. With new advances in technology which increasingly isolate us from face-to-face interaction, lack of courtesy appears to have risen.

Nothing will replace the traditional mentor, and we probably will never again enjoy the personal interaction of the practice as it was years ago. But the guidelines do provide a tool which can be used to direct new lawyers and remind seasoned attorneys of the appropriate way to conduct themselves. All tools, however, must be utilized in order to provide a benefit. The civility guidelines will do no good sitting on a shelf.

I ask all of you to use them. Use them to remind yourself that aggression and anger have no place in litigation or dispute resolution. Use them to set a proper example to guide a young lawyer in the right direction. When you see improper behavior from counsel, introduce yourself if necessary, suggest he or she might benefit from reviewing the guidelines and hand over a copy. You will probably be met with resistance or worse, but you may plant a germ of respect or a seed of courtesy, which ultimately will improve a lawyer’s manner of practice.

Our judges work hard in all our courts and none work harder than in our Family and Probate Court. They deal day-in and day-out with family after family in the throes of emotional and psychological turmoil. They fashion solutions to seemingly unsolvable problems by creatively applying the dictates of the law to the most unreasonable human behavior. They have a right to expect that all lawyers before them will act with dignity, respect and courtesy toward everyone involved in the process; that lawyers will help calm emotional clients, reduce conflict and propose reasonable solutions to the problems before the court.

When lawyers do not act as expected, many judges who believe, as Federal District Court Judge William Young, that their role includes that of an educator, will step in and provide guidance. These civility guidelines now provide an additional tool for them. I urge all judges to use them. A few words at sidebar or after a hearing, together with a referral to the guidelines, may well change a lawyer’s behavior, ease the burdens on the court and improve the quality of the administration of justice.