Courtroom lies, rudeness and worse in depositions, and undercurrents of sexism were reported in an informal Daily Business Review survey on civility in the legal profession.
Of the 85 responses to the online poll, an overwhelming 91 percent see civility as a pervasive or somewhat pervasive issue. National results showed 7 percent not seeing a significant problem.
“The tone of discourse in the bar is at an all-time low,” one comment said.
In open-ended responses, eight anonymous respondents mentioned opposing counsels’ lies or misrepresentations when elaborating on their personal encounters even though the word “lies” isn’t a common utterance for lawyers.
Depositions were cited as a frequent setting for rudeness and insults.
Opponents “have raised their voices, asserted frivolous objections and told me to go back to school,” an attorney said.
At another deposition, an attorney “mouthed to my co-counsel that I was an Ahole.”
Other expletives have crept into the legal lexicon, with a respondent writing: “Two different lawyers casually f bombed me on the phone. We don’t know each other. They had no problem using that language with a stranger.”
While unscientific surveys like this attract responses from people who are partial on a topic, the intensity of some comments was surprising given the climate. Florida attorneys have been under tighter scrutiny for years.
In addition to Florida Bar disciplinary actions, professionalism committees have been set up since 2013 at the circuit level to address minor complaints on a less formal level.
A coalition of 42 South Florida voluntary bar associations launched a “Got Civility” campaign in 2012 to counteract frequent reports of incendiary behavior among lawyers.
But some see reluctance by both the bar and judges to punish unprofessionalism when larger issues like attorneys facing criminal charges and trust account violations are in play.
Brian Dervishi, managing partner of Weissman & Dervishi in Miami, commended Broward Circuit Chief Judge Jack Tuter for calling out incivility when he sees it in court. Dervishi was interviewed after adding his name to his response.
Tuter gained national attention when he advised lawyers to “tamp down the rhetoric” in election recount litigation last November.
“I could go on forever,” Tuter said when asked about the survey. “Sitting here where I sit, you get an earful all the time from all different segments and all types of lawyers, experienced and inexperienced.”
He noted he issued an administrative order creating civility magistrates to parachute into cases when legal adversaries impede litigation.
Tuter called professional enforcement “a three-way street” with roles for judges, lawyers and the Florida Bar. But he called out the bar for lax enforcement.
“When we do report people with some frequency here, nothing ever happens,” the judge said. “The Florida Bar won’t stand up and do something unless it’s a really serious issue,” which emboldens the offending litigators.
Real estate attorney Zachary Zurich, who also gave his name in the survey, said law students are taught how they’re supposed to behave, but “you get out in the real world, and it’s like the Wild West, so something‘s gone wrong somewhere.”
Dervishi tracks the emergence of some ill-tempered behavior to the Great Recession 10 years ago and the increased use of performance-tracking metrics. Tuter threw in the Internet as a pathway to indirect contact through texts and email.
“There are a lot of young lawyers who have not had mentoring, and there are a lot of young lawyers who have to bill right away,” Dervishi said.
The advent of reports on profitability and realization rates puts attorney income and law firm finances in a real-time spotlight.
Emails were cited as a common vehicle for rude, nasty and generally unprofessional comments and behavior.
Examples of email abuse include contacting an opposing attorney’s client but not the attorney and a message sent with a one-day deadline on a motion to compel after the recipient filed a notice of unavailability for a two-week overseas vacation.
Some women complained about yelling by their male colleagues.
An attorney wrote about “incredibly disrespectful and confrontational behavior from a male opposing counsel, including but not limited to yelling at me on phone calls. … This is not the first attorney with whom I’ve encountered this issue, and for what it’s worth they are always men.”
And in a similar vein, “Opposing counsel (male) standing near me (female) or leaning across a table toward me and yelling.”
Payback has come swiftly for some: “Three male plaintiff’s lawyers treating two women defense lawyers with absolute disdain and contempt. The outcome: after a two-week jury trial, complete defense verdict in about an hour.”
Zurich noted a better climate in federal court than state court, and respondents reported better conduct in state appellate courts than trial courts.
Conceding limited time spent in federal court, Zurich said, “It’s a completely different atmosphere, and the only thing you can attribute that to is the judges.”
Dervishi cited two state judges for interjecting themselves when issues of professionalism came up in court, but they may be the exceptions. One comment said, “What makes all of (this) worse: judges allowing this kind of behavior in the courtroom.”
The judges themselves are random targets of bad behavior and the ones dishing it out. A respondent reported “one lawyer who mouthed off to a judge because the docket call was running exceptionally long. Just as pervasive is rudeness by some members of the judiciary.”
Both Dervishi and Zurich cited unprofessionalism in many forms being used as a litigation tactic intended to overwhelm both the attorneys and clients on the other side.
And offensive behavior is directed at other people in court.
A licensed counselor wrote to report “a scorched-earth approach to family law litigation, including towards other professionals.” He added, “I’ve had attorneys threaten in writing to bury me in so much paperwork it will shut my practice down.”