PROFESSIONALISM CORNER
Legal Writing for Criminal Law Practitioners
PROFESSIONALISM CORNER
CIVILITY AND CORDIALITY : Limits on Zealous Advocacy ? ( Continued )
JENNIFER S . CARROLL
Incivility continues in the legal system , despite case law admonitions , articles , committee work , and rhetoric .
According to the ABA , as of 2017 , only 27 states had adopted civility codes . These are guidelines which focus on “ civility ” -- going beyond the standard rules of professional conduct .
As of 2019 , 93 % of Americans identified a major civility problem in this country . Within the American bar , incivility is pervasive .
Florida has recognized the need for “ civility ” guidelines . In 2011 , the Florida Supreme Court amended the oath of admission to The Florida Bar to include a pledge of “ fairness , integrity , and civility ” to the court and opponents “ in all written and oral communications ”.
In the Guidelines for Professional Conduct , created by the Trial Lawyers Section of the Florida Bar and adopted by the Conferences of Circuit and County Court Judges , one of the seven general principles is :
4 . A lawyer should be courteous and civil in all professional dealings with other persons . Lawyers should act in a civil manner regardless of any ill feelings that their clients may have toward others . Lawyers can disagree without being disagreeable . Effective and zealous representation does not require antagonistic or acrimonious behavior . Whether orally or in writing , and whether in or out of court , lawyers should avoid vulgar language , disparaging personal remarks , or acrimony toward other counsel , parties , or witnesses .
And under the Trial Conduct and Courtroom Decorum Section of the Guidelines : 1 . A lawyer always should interact with parties , counsel , witnesses , jurors or prospective jurors , court personnel , and judges with courtesy and civility , and should avoid undignified or discourteous conduct that is degrading to the court or the proceedings .
https :// www . floridabar . org / prof / regulatingprofessionalism / presources002 / ( as of Feb . 23 , 2023 ).
Unfortunately , principles of civility and cordiality become meaningless without a means of implementation and enforcement . But can such principles be enforced ?
Certainly all judges dislike incivility in the courtroom . But many do not want to get in the middle of the fray -- so they ignore . But such inaction simply creates an image of complacency -- condoning such behavior as acceptable advocacy . And consequently the behavior continues and is repeatedly perpetrated in the system .
Some have described a judge in this context as a “ passive ticket holder to a lawyer ’ s night club act .” Gerber , Victory vs . Truth : The Adversary System and its Ethics , 19 Ariz . St . L . J . 3 , 23 ( 1987 ). One particular judge charged many of his colleagues as being “ withdrawn from the fray , [ and ] watch it with benign and detached affection , chuckling nostalgically now and then as the truth suffers injury or death in the process .” Frankel , The Search for Truth : An Umpireal View , 123 U . PA . L . Rev . 1031 , 1034 ( 1975 ).
Writers have suggested a variety of remedial measures , ranging from providing young lawyers with better education concerning ethical matters ; removing the terms zealous and zealous advocacy from ethics rules and the comments thereto ; to encouraging judicial intervention and enforcement . Perhaps the latter approach is more appropriate given the nature of an “ adversary ” system .
Perhaps it will take a more active role by the judiciary to at least call out , or intervene where incivility runs rampant . And if practitioners know that such behavior will not be accepted , perhaps that can make a difference . See generally Dondi Properties Corp . v . Commerce Sav . and Loan Ass ’ n , 121 F . R . D . 284 ( N . D . Tex . 1988 ).
The duty to zealously represent one ’ s client does not require the use of offensive tactics or preclude the treating of all
PBCBA BAR BULLETIN 20 persons involved in that litigation process with courtesy and respect . Zealous advocacy is not incivility . It is not rude advocacy . Being a zealous advocate does not mean that one abandons all sense of professionalism , courtesy , and common decency .
Civility , courtesy , and cooperation with opposing parties and their counsel will not diminish the effectiveness of zealous advocacy . Civility , courtesy , and cooperation are not limits on zealous advocacy on behalf of clients . Rather , they are a more effective method of advocacy that better balances the attorneys ’ dual role as client advocate and officer of the court .
Jennifer S . Carroll concentrates on civil appeals as well as complex civil litigation in both state and federal courts , including post-judgment proceedings . Ms . Carroll is a Board Certified Appellate Lawyer , is AV-rated , and is listed in the Bar Register of Preeminent Lawyers . She is admitted to practice before all state courts , the U . S . Supreme Court , U . S . Court of Appeals for the Eleventh Circuit , and the U . S . District Courts for the Middle and Southern Districts of Florida .
Legal Writing for Criminal Law Practitioners
Thursday , April 27 th , 2023 11:45 A . M . – 1:30 P . M . Main Courthouse 205 N . Dixie Hwy West Palm Beach 33401
Presenters : Hon . Melanie May Fourth District Court of Appeals
Hon . Robert Gross Fourth District Court of Appeals