Civil: To Be or Not To Be

Published January 2014 by Alicia M. Phidd

The standards of the legal profession were built on moral and ethical behavior, pursuit of justice and representing your clients’ interest with the understanding that you would be civil to all parties concerned. Now, herein lies the problem, “…the understanding that you would be civil to all parties concerned.” It was taken for granted for decades that once you take the oath of admission to the bar, you would automatically know how to behave.

The legal profession has struggled with its image to outsiders for centuries. In 1996, A Sun Sentinel newspaper article titled Florida Lawyers Want Better Image stated that lawyers were “frustrated with their image as money grubbing mercenaries.” While we may still need to fight that image in 2013, the profession

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noticed a greater issue brewing which was how we treated each other behind closed doors, mainly the litigation door.

The Supreme Court of Florida realized in 2011, that voluntary civility was becoming a challenge to some attorneys and now the verbiage “To opposing parties and their counsel, I pledge fairness, integrity, and civility, not only in court, but also in all written and oral communications;” is a part of the oath of admission to The Florida Bar.

The Supreme Court’s action is a step in the right direction that will hopefully normalize the expected behavior throughout the twenty judicial circuits. For now, it appears some jurisdictions may appear less civil than others. I interviewed several attorneys on the subject of civility. One seasoned attorney who practiced civil litigation and criminal law in Central and West Florida felt for the most part all attorneys are courteous. When asked to compare West Florida to South Florida, he felt in Tampa the attorneys “are more willing to share information in discovery.” As for South Florida, he felt that “you are

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more likely to be ambushed.” He went on to state that while attorneys in South Florida may be more “cunning” and “less civil” than in other jurisdictions he finds them to be ethical. This led me to pry into his interpretation of the word “professionalism” and, sure enough, it is interchanged with ethics.

I interviewed a female attorney based out of Broward County, also a seasoned attorney. She has experience practicing in Florida and New York, in federal and state courts. Her take is that it simply comes down to the individual. She found that different practice areas lend themselves to different professional behavior which may be part of the litigation process. This behavior is along the spectrum from small firms to big firms. She found in her general practice, which also includes business law; some big firms will reach out to find “common points to settle a case.” On the other hand, she finds some big firms want to “pile it on” and just litigate and this behavior she believes generates lack of civility among the lawyers.

Civil versus uncivil behavior among lawyers, however, cannot be judged by locality or jurisdiction. There are individuals “who are good to work with and others who are far more difficult.”

My interviews were by no means scientific but I believe they shed some light for us to move forward. Here are three suggestions for you to ponder. The first is to have every attorney electronically sign that they have received and read the Ideals and Goals of Professionalism. The second is to have the current Palm Beach County Bar Association’s Professionalism Enhancement presentation shown to every attorney within Florida’s borders. The third is to encourage citation to the Ideals and Goals of Professionalism when seeking Court intervention due to uncivil behavior in the litigation process.

This article submitted by Alicia M. Phidd of the Professionalism Committee. Alicia is a corporate lawyer and commercial litigator. She may be reached at info@aliciaphidd.com.