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Bell/Whelan: 3 things to know about civility and discipline

December 30, 2015

3ThingsBellWhelan2015.jpgAs attorneys, we are often told by judges that we need to be civil in court and civil to each other. We hear that we need to be “professional” and “courteous” and we hear that we need to “get along.” After reading the recent case of In re M.H., 2015 Ind. LEXIS 957 (Ind. 2015), we have concluded that when judges say “need,” they mean “need.” As it turns out, acting in a civil manner is not just a way of being polite, or being a good advocate or a way to make the profession look good. In fact, being uncivil in and of itself can lead to disciplinary sanctions. Here are three things to know about civility and the attorney disciplinary system.

1. Civility is ethics.

You may be wondering why we are writing an entire “ethics” column on the abstract topic of civility. The truth is civility and ethics overlap frequently, to the point that uncivil lawyers often are disciplined under the Rules of Professional Conduct. However, in most cases, they aren’t usually disciplined specifically for being “uncivil.”

For example, in In re A.M., 652 N.E.2d 863 (Ind. 1995), the respondent lawyer threw his soft drink at another lawyer and grabbed him around his neck to restrain him in his chair. Uncivil? Sure. Unethical? Apparently – the Supreme Court found that the lawyer’s conduct was intended to disrupt a tribunal (Rule 3.5(c)) and was prejudicial to the administration of justice (Rule 8.4(d)). The court likewise found a violation of Rule 8.4(b) for committing a criminal act that reflected adversely on a lawyer’s fitness.

Similarly, in In K.M., 665 N.E.2d 40 (Ind. 1996), a heated exchange took place in chambers where opposing counsel suggested to the judge that the respondent lawyer was not being truthful. While the two were leaving chambers, the respondent lawyer grabbed opposing counsel’s tie in his hand, then released it, after which opposing counsel called the respondent a “son of a bitch.” The respondent then struck opposing counsel, causing him to fall back onto a table in the judge’s chambers. Again, the Supreme Court found violations of 3.5(c), 8.4(b), and 8.4(d).

2. The Oath of Attorneys is ethics.

In the past, as demonstrated by the cases above, when a lawyer has been uncivil, the Supreme Court has always found a hook in the Rules of Professional Conduct on which to rest sanctions. However, a recent disciplinary case shows that the court is expanding the sources on which it relies for disciplinary action.

In In re M.H., a lawyer in a paternity action levied personal attacks against opposing counsel, accusing him of having arranged venue by fraud, deceit and trickery; of intentionally violating his client’s rights as a disabled person by refusing to transfer venue; and in engaging in other unprofessional and unethical conduct. In some communications, the lawyer threatened to file a disciplinary case against opposing counsel unless he would agree to the lawyer’s demands. Perhaps most egregiously, the lawyer wrote to opposing counsel that “[y]our possibly homophobic, racist, sexist clients should not be using the Courts to further that agenda.” The respondent lawyer likewise made attacks against the judge in the case, accusing the judge of taking a “stubbornly injudicious attitude” toward the court proceeding and “taking off on detours and frolics that ignore the fact that there are laws in Indiana that the court is supposed to follow and uphold.” The Supreme Court found not only a violation of Rule 8.4(d), but also a failure to comply with Admission and Discipline Rule 22 (Oath of Attorneys) by acting in an offensive manner.

Although not the first time the Supreme Court has relied on or mentioned the Oath of Attorneys in a disciplinary opinion or order, In re M.H. shows that the Oath of Attorneys is not just old-fashioned rhetoric, recited in ceremonial fashion by hundreds of lawyers each year then summarily forgotten. Rather, the court will hold lawyers to the Oath of Attorneys, and can and will impose discipline for its violation.

3. The court seems to be taking a stricter approach to sanctions

In the first two cases discussed above, the admittedly uncivil respondent lawyers each received a sanction of 60 days suspension with automatic reinstatement. Remember – these lawyers drenched opposing counsel with a soft drink and slugged opposing counsel in chambers, respectively. In M.H., by contrast, the respondent lawyer was sanctioned with a suspension of 60 days without automatic reinstatement for acting in an “offensive manner” in written correspondence and pleadings, in violation of the Oath of Attorneys. That means that the respondent will have to go through a lengthy reinstatement process before being permitted to practice law again. And even after that process, may not be reinstated.

The M.H. case has made us wonder if the relative increase in severity of sanctions for uncivil behavior, and the reliance on the Oath of Attorneys for discipline, indicates that the court is attempting to send a different, sterner message to Indiana lawyers that civility truly matters. Regardless, take heed and take your oath seriously. Be professional, be courteous and get along with your fellow lawyers. The honor of the professions – and maybe even your law license – depends on it.•

James Bell and Jessica Whelan are attorneys with Bingham Greenebaum Doll LLP who assist lawyers and judges with professional liability and legal ethics issues. Bell is a regular speaker on criminal defense and ethics topics. He can be reached at jbell@bgdlegal.com and Whelan can be reached at jwhelan@bgdlegal.com. The opinions expressed are those of the authors.

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