So far, this series of articles about lawyers’ “Seven Deadly Sins” has covered the risks of falling behind technology and competence requirements (sloth), marketing and self-promotion (pride), improper personal relationships with clients (lust) and overindulging in new matters or harmful vices (gluttony).
This installment of the series covers wrath—the emotional instability or anger that is sometimes associated with professionals engaged in the practice of law. Law is a stressful profession. It can involve long hours, pressing deadlines and, sometimes, personal unpleasantness. Lawyers can become too emotionally involved in their matters or may sometimes respond to stressors with anger or frustration. The public at large may even view attorneys as an angry or rude subsection of the populace.
Although attorneys are human and subject to the emotional highs and lows of any other person under stress, it is rarely effective for attorneys to allow their wrath to dictate their legal strategy or engagement with others. Here are some tips for managing the deadly sin of wrath and maintaining professionalism.
Duty of Professionalism
The practice of law is a profession and requires from its practitioners a level of professionalism. In recognition of this, many states are requiring renewed pledges of professionalism or courtesy among lawyers in court settings but also in other communications between counsel.
Too often, attorneys may equate a needlessly aggressive attitude with what is required to be successful. However, as the New York State Bar has recognized, “lawyers can disagree without being disagreeable.”
Courts and bars are taking action against practitioners who are allowing anger to infect their interactions with others. For example, a court found that an attorney at issue had improperly threatened legal action against nonliable parties and asserted a conspiracy among persons (including a former judge) without any supporting facts. He also was combative, yelling at the court in appearances and insulting to colleagues. In response, the Florida Supreme Court rejected a recommended 90-day suspension and instead suspended the attorney from the practice of law for two years, plus 18 months’ probation and a public reprimand.
In South Carolina, an attorney (the respondent to the ethics inquiry) represented a mother in a heated domestic dispute. That attorney sent a highly personal email to the attorney representing the father (called Attorney Doe in the ethics opinion), noting that Attorney Doe’s daughter was detained for drug-related charges but never charged. The attorney suggested the event may reflect poorly on Attorney Doe’s parenting and that “this incident is far worse than the allegations your client is making. I just thought it was ironic.” The respondent went on to write: “There is nothing more complicated and serious than having a child grow up in a high class white family with parents who are highly educated and financially successful and their child turning out buying drugs from a crack head at night.” The respondent claimed that this email was sent in response to obnoxious and harassing correspondence from Attorney Doe. The South Carolina Supreme Court found that such personal attacks had no place in the judicial system and did a disservice to the client. It sanctioned the attorney with a private letter of caution.
Another way that courts are cracking down on attorney wrath is by more frequently admonishing attorneys for misconduct in a deposition. Although there are rules of procedure that typically govern depositions, in some ways depositions can be the “wild west.” Attorneys may engage in arguments on the record, acts of intimidation of a witness or opposing counsel or issue speaking objections that indirectly instruct a witness on how to proceed. Courts are taking these issues seriously, sometimes sanctioning attorneys for letting their anger get the better of them at a deposition.
Legal representations are not meant to settle personal scores. But sometimes the legal news reports on stories of attorneys who use their bar licenses to try to intimidate or bully civilians with whom the attorneys have a personal disagreement. Sometimes the stress of practicing law may reveal itself in an attorney who brings suits against many in the attorney’s life—from the condo board, to their child’s school, to the lawn repair service, to the driver in a minor fender bender.
Now, of course, attorneys are entitled to equal access to the courts just as any other citizen. However, an attorney intending to use a bar license for personal matters may benefit from an objective consideration of the motive and to honestly assess whether the claim actually has merit. If the attorney is using the bar license to pressure a party or as a way to displace anger or stress related to the attorney’s career, the attorney may want to consider other options. Indeed, lawyers are typically not permitted to bring proceedings “unless there is a basis in law and fact for doing so that is not frivolous.” Rule 3.1 of the ABA Model Rules of Professional Conduct. Bar committees in particular can be harsh to practitioners who are viewed as using their status as lawyers to threaten non-lawyers or to suggest legal ramifications that are not justified.
Separately from what the rules require, practicing law while angry can create risks for the representation. Setting a more congenial tone with opposing counsel can be helpful to the progression of the representation as a whole.
Duty of Honesty and Candor
While “wrath” sometimes reveals itself as a burst of anger, there also are risks for attorneys who react quickly to developments in a litigation without taking the time to slow down and review their positions. For example, attorneys can sometimes get in trouble with a court for answering a question too quickly or for misleading a court as to a material fact. It can be that the impetus to answer quickly or based on the attorney’s “gut” may create problems. In those situations, some attorneys will be candid with a court about those facts that are not within their knowledge to avoid making any misstatements.
The failure to be honest and candid in court can have wide-ranging impact on the representation. It can be helpful for attorneys who are facing the urge to exaggerate opposing counsel’s missteps or lash out to a judge to remember Model Rule of Professional Conduct 3.3, which prohibits an attorney from knowingly making a false statement of fact or law to a judge (or fail to correct a previously made false statement of material fact or law), failing to disclose directly adverse legal authority, and offering evidence the attorney knows to be false.
Read the previous “Seven Deadly Sin” articles: