What kind of lawyer do you want to be when you grow up? Not a litigator or a deal-maker or a public interest advocate – we all usually figure that part out fairly quickly. I am referring more to style and temperament, the things that go into the way a lawyer practices and interacts with clients, colleagues and adversaries. As a lawyer still shaping my reputation with colleagues and the broader legal community, it is a question I have considered periodically since I began practicing in 2006. This year’s Super Bowl, of all things, set me thinking about the topic again. In particular, the constant articles about Jim and John Harbaugh, two brothers coaching against each other for the first time in Super Bowl history, triggered this line of thought. The Harbaugh stories were compelling; each day brought new reports about the love, respect and competitive spirit that divided and brought them together. At a joint press conference, the two brothers professed profound respect for one another, both stating that they would willingly work on the staff of the other. But on game day, that respect did not prevent them from tenaciously trying to beat the other’s team. Then, after the Ravens held off a furious second-half comeback by the Niners, the two men embraced.
What do the Harbaugh brothers have to do with legal style? In certain respects, lawyers are like siblings. As people who have undergone similar training, sworn identical oaths, and apply to and practice in the same bar of professionals, we are a “band of brothers” (and sisters). And yes, sometimes we even fall prey to something much like sibling rivalry. Although we are sometimes on opposite sides of a negotiation or a contentious case, the spirit of professional connection should remain an inherent part of the profession of law. While post-trial hugging is probably unnecessary (more on this later), I think the Harbaughs’ example of tenacity tempered by respect and admiration is a good model for us as attorneys.
Legal style comes in all forms. Some attorneys are self-described gladiators, neither asking for nor giving any quarter. These attorneys, not unreasonably, regard toughness as a badge of honor. Others approach law with a more conciliatory bent, seeking areas of common ground, but not shying away from a confrontation when necessary. These attorneys follow the saying, “Be nice until it’s time not to be nice.” These approaches – and many others – are perfectly valid ways of giving form to our obligation to provide zealous advocacy.
Unfortunately, some attorneys mistake incivility for toughness and rudeness for zealousness. This approach is misguided, and runs against the intrinsic bonds of professional respect that should bind each member of the bar to the other. As the late Judge Louis H. Pollak cautioned, “The litigator need not hug an adversary. But to treat an adversary with advertent discourtesy – let alone with calumny or derision – is a form of incivility that rends the fabric of the law.” Judge Gene E.K. Pratter addressed the same issue in Huggins v. Coatesville Area School District, CIV.A. 07-4917 (E.D. Pa. Sept. 16, 2009), noting that “uncivil, abrasive, abusive, hostile or obstructive conduct by lawyers impedes the fundamental goal of resolving disputes rationally, peacefully and efficiently” and can “delay . . . [or] even deny justice.” Following a deposition that devolved into “heated, personal, rude and pointless” exchanges, Pratter granted a motion for sanctions, making one attorney take a CLE course on civility and professionalism, and ordering both attorneys to eat a meal together.
Incivility need not rise to this level to run against our professional obligations to each other. How many times have you waited while an opposing counsel refused to return a phone call to discuss an important matter? How often have you cursed a useless document production filled with easily correctable technical errors that your adversary had not deigned to fix? And don’t you wish opposing counsel would present his or her case without feigned indignation at your client’s expense? There is a better way.
Like the Harbaughs, toughness can be paired with respect and, when in the best interests of the client, conciliation. Zealousness need not descend into incivility or even a lack of consideration. To this end, the Pennsylvania Bar Association provides a set of “Working Rules for Professionalism,” one of which reminds that “professional courtesy is compatible with vigorous advocacy and zealous representation.” Taken as a whole, these eight working rules essentially are a lawyer-specific version of an old rule: “Do unto others as you would have them do unto you.” As I think about the kind of lawyer I am – and the kind I aspire to be – the Golden Rule remains a constant aspiration. And, strangely enough, thanks to this year’s Super Bowl, so will the Harbaugh brothers.
Michael J. Newman is an associate in the litigation department of Hangley Aronchick Segal Pudlin & Schiller. He has broad experience in complex commercial litigation involving contractual disputes and insurance coverage issues. He has counseled clients facing serious allegations such as securities fraud, insider trading and breach of fiduciary duties.