As I contemplated my first article for the “Commissioners Column” (thank you to the members of the Sixth and Seventh Judicial Districts for electing me to the Commission) my thoughts seemed to continually circle back to one topic: civility. Or, more specifically, incivility, which seems to me to be on the rise in practice. When I mentioned this topic to The Advocate staff, however, the response seemed a bit less than enthusiastic. As I recall the specific response was, “Sure, you could write another article on civility.” Although, civility may be a frequent subject or topic for bar publications, it seems to me that incivility is increasingly in need of a current discussion.

In my practice, it seems to me that incivility is a growing problem. Whether it’s dealing with overly aggressive and unprofessional out of state counsel or opposing counsel arguing “facts” that are not properly in the record and at times simply made up “alternative facts,” I think the case can be made that incivility is on the rise. What’s more concerning is the impact incivility has on lawyer satisfaction and well-being.  In the April 11, 2022, episode of the Hidden Brain entitled “How Rude!”[i] the podcast details the long-lasting mental effects of incivility, which includes negative mental and physical health effects as well as adverse career and creativity impacts.

Where to Start?

As a point of beginning, I started with the Idaho Rules of Professional Conduct, and I was surprised to learn the word “civility” does not appear anywhere. The Preamble to the Rules, however, provides insight, with Paragraph 5 stating, “A lawyer should use the law’s procedures only for legitimate purposes and not to harass or intimidate others. A lawyer should demonstrate respect for the legal system and for those who serve it, including judges, other lawyers, and public officials.” Additionally, Paragraph 9 of the Preamble continues: “These principles include the lawyer’s obligations, as an advocate, to zealously protect and pursue a client’s legitimate interests within the bounds of the law and, as an officer of the court, to preserve the integrity of the legal system’s search for the truth while maintaining a professional, courteous, and civil attitude toward all persons involved in the process.”

The issue of civility or incivility frequently arises in the context of counsel’s obligation to “zealously” represent their client. We are all familiar with the frequently stated obligation to zealously represent our clients, however, nowhere in the actual Rules of Professional Conduct does the word “zealous” appear. Once again, the Preamble to the Rules mentions zealous representation and Paragraphs 2, 8, and 9 speak to zealous representation. As quoted previously, Paragraph 9 of the Preamble, however, balances out the zealous representation obligation with counsel’s obligation “to preserve the integrity of the legal system’s search for the truth while maintaining a professional, courteous, and civil attitude toward all persons involved in the process.”

Rule 1.3 seems to embody the “zealous representation” rule and states: “A lawyer shall act with reasonable diligence and promptness in representing a client.”  The first comment to Rule 1.3, however, clarifies the Rule and states in part, “A lawyer is not bound, however, to press for every advantage that might be realized for a client. For example, a lawyer may have authority to exercise professional discretion in determining the means by which a matter should be pursued. See Rule 1.2. The lawyer’s duty to act with reasonable diligence does not require the use of offensive tactics or preclude the treating of all persons involved in the legal process with courtesy and respect.” Thus, the inherent tension between the “zealous representation” obligation to act with civility is recognized in Comment 1.  The notion of “zealous representation” may conflict with our fiduciary duties to effectively and efficiently represent our clients. We have all experienced opposing counsel who spur on litigation in the name of zealousness.  Some in our ranks elevate zealous representation as a means to justify failing to practice civility or even behaving with incivility.  I would submit, however, our obligation to zealously represent clients can be accomplished together with our obligations under the Rules of Professional Conduct.

An Ethical Conundrum?   

In the most recent edition of the American Bar Association’s quarterly litigation publication “Civil War” Volume 50 No. 4 (Summer 2024), a young attorney attempts to make the case for elevating zealous advocacy over civility as an ethical obligation.  Author Sonja Arndt-Johnson suggests that zealous representation outweighs the obligation of civility, and that civility to opposing counsel is merely self-serving conduct by an attorney. The author suggests that elevating our obligation to conduct ourselves with civility over our zealous representation obligations presents an ethical conundrum. I disagree.

Although the Idaho Rules of Professional Conduct and comments to the Rules fail to define civility, thankfully practitioners in Idaho are not left to guess with respect to the meaning of civility.  The Idaho State Bar and the U.S District Court for the District of Idaho have taken out the guess work with respect to practicing in our state. In 2001, the Idaho State Bar and the Federal Courts adopted the Standards for Civility in Professional Conduct.[ii]  The Standards set forth an attorney’s responsibilities to other counsel, an attorney’s responsibilities to the court, the courts’ responsibility to counsel and litigants, as well as judicial officers’ responsibilities to each other.  If you haven’t reviewed the Standards recently, they are worth a read or review.  If we are living up to our responsibilities to represent our clients and help solve our clients’ problems, there is at least less tension between our zealous representation responsibility and our responsibility to practice with civility.  Arguably, any attorney who is admitted pro hac vice should be required to read and certify they will abide by the Standards.

Writing this article takes me back to the early days of my practice. I had the unbelievable privilege of learning from several amazing mentors, one of whom was Peter J. Boyd. As a very young lawyer I vividly remember one of my lessons from Mr. Boyd— we called him PJB. He often imparted what I now know were pearls of wisdom that have helped me navigate decades of practice. One of the first lessons I recall from PJB, he said, “Always remember clients will come and clients will go, and no client is worth your integrity or your reputation with other lawyers.” Truly, advice to live by. With over 7,300 licensed attorneys in our state,[iii] realistically we swim in a small pond. In working with opposing counsel, I would submit it is wise to remember that the attorney on the other side with whom you may be having a difficult time dealing, may well be the judge on one of your future cases. Something to think about.

F.J. Hahn is currently a commissioner serving the 6^th and 7^th districts of the Idaho State Bar. He attended the University of Idaho College of Law and practices in Idaho Falls.

Endnotes

[i] https://www.podcastworld.io/episodes/how-rude-5y1g2mem.

[ii] https://isb.idaho.gov/wp-content/uploads/standards_for_civility.pdf.

[iii] Membership Count as of October 2, 2024, https://isb.idaho.gov/licensing-mcle/membership-count-statuses/.