The Evansville Bar Association’s Professional Courtesy Code started with attorney Edward Johnson sitting at his desk and putting on paper the way attorneys should behave when practicing law.
He thought about the things that made him angry and about the actions – or inactions – that caused problems for judges and other attorneys. The resulting code contains more reminders of how to be professional rather than any great revelations: return phone calls and reply to correspondence promptly; arrive on time; be respectful to judges and opposing counsel; serve copy of any complaint, notice, summons or subpoena to the attorney representing the other party; consult with the other lawyer when setting the schedule for litigation; and do not use the judicial process to harass opposing counsel or delay the proceeding.
Johnson’s missive was adopted by the EBA board of directors in 1990 and for 25 years has been a testament in black and white to civility.
The ironic part of the story is that Johnson began his career in 1970 as a confrontational, argumentative attorney who contested everything. He acted in a manner contrary to the code he would later write, believing at the time he had to be rude in order to be a good advocate for his clients.
Not until an older attorney scolded him for his bad behavior did Johnson, now a partner at Johnson Carroll Norton Kent & Goedde P.C. in Evansville, realize his conduct was not acceptable. And once he became civil, Johnson discovered his practice improved and he enjoyed the legal professional much more.
A year after Johnson’s code was adopted, the Committee on Civility convened by the 7th Federal Judicial Circuit released its report on attorney conduct in the 7th Circuit and ways to improve behavior. The nine-member committee concluded there was widespread dissatisfaction among judges and attorneys who saw the practice of law changing from congenial professional relationships to abrasive confrontations.
Larry McKinney, senior judge for the U.S. District Court for the Southern District of Indiana, was a member of that committee. He explained the ad hoc group saw the importance of civility as something more than making the practice of law pleasant.
Curbing the vitriol, the crass statements made in briefs, and the bickering during depositions makes attorneys better at representing their clients. Civility, McKinney said, is not limited to saying “please” and “thank you.” Rather, professional behavior allows the case to be handled efficiently so the litigation is not prolonged and made more expensive for the parties.
John Trimble, president of the Indianapolis Bar Association, echoed that sentiment.
“We are living in a time when the middle class can’t afford legal services. The business world is looking for ways to curtail what it pays for lawyers,” he said. “If there was ever a time for us to be civil, it’s now.”
Confront without being confrontational
Recalling his early days in the practice of law, Johnson wished the courtesy code or an education course in civility had been available to teach him the kind of behavior that was expected. Instead, he had to figure it out on his own.
To demonstrate how ridiculous the misbehavior can be, John Steele, visiting professor at Indiana University Maurer School of Law, has his students act out an actual deposition taken as part of a lawsuit against Monsanto Co. The first-year law students read aloud the transcript of the opposing lawyers bullying and calling each other names like “fat boy” and “Mr. Hairpiece.”
Steele, who has taught legal ethics and has served as the lead internal ethics lawyer for AmLaw 100 and 200 firms, uses the transcript to underscore his point that being a jerk does not equate to being a good attorney.
“Some of the most effective lawyers I’ve ever seen are always civil,” he said. “The notion that I need to be rude to succeed is false.”
In addition to giving his students an understanding of professional conduct, Steele also counsels them on how to react when they are being bullied. Every lawyer is going to encounter bad behavior a few times a year, Steele said, so they need to know how to set the boundaries and when to bring the matter to the judge’s attention.
By its nature, the law is a confrontational occupation, Trimble said. So young lawyers especially need to learn how to confront without being confrontational and how to disagree without being disagreeable or, as Johnson experienced, they will find the legal profession to be very stressful.
“I hold the view that all lawyers should view themselves as problem solvers,” Trimble added. “We should not by our conduct exacerbate the problem. We should be civil and work as collaborators in an adversarial system to solve problems.”
Twenty-five years ago, Vanderburgh Superior Judge Mary Margaret Lloyd was a new lawyer just beginning to practice in Evansville. She learned to be civil by remembering the Golden Rule and by deciding she did not want to mimic the bad behavior she saw from some attorneys.
Watching how experienced lawyers act can make a strong impression on new attorneys, said Vanderburgh Senior Judge Carl Heldt. But education provided through codes of conduct has an important role as well in teaching young lawyers how to behave toward other members of the bar and toward clients.
Heldt was a member of the original committee that polished Johnson’s code and the redrafting committee that updated the code in 2007. He described the document as the kind of advice an older lawyer might pass along to a young associate.
Like Johnson, Portage attorney Gregory Sarkisian admits he was not a courteous professional when he started practicing law. He attributed his boorishness to trying to get more from his cases than they were worth.
Then, he evolved. He came to understand he could present his case in court and still be kind to his opponent.
“After a period of time, you just know things are going to be better for everybody – clients, the courts, other attorneys, their clients and basically the whole profession – if we conduct ourselves with dignity and respect,” Sarkisian said.
Johnson learned that same lesson so well that Lloyd characterizes him in a way he might not have imagined early in his career.
“Ed Johnson is the master of civility and effectively arguing his case,” she said.•