Who Among Us Will Do the Right Thing? By Founding Partner Debra R. Schoenberg

Who among us will do the right thing?
(Civility And The Practice Of Family Law)

Webster’s defines “civility” as “1. Courtesy: politeness. 2. A courteous act or expression.

a. “What is hateful to you, do not do to your neighbor. This is the whole Torah; all the rest is commentary.” — The Talmud

From the dawn of society, one of the most fundamental tenets upon which civilization has been built has been rooted in civility. It is the basic premise upon which civilization has come to flourish. What is known in the vernacular today as the “golden rule” — “do unto others as you will have them do unto you” — dates back to early Judeo-Christian times, as expressed in the Talmud. This simple concept exemplifies the essence of civility. The “golden rule” is found in nearly every modern-day religion, demonstrating how it transcends all other considerations and is an essential part of the fabric of society. No society can successfully flourish if its members do not treat one another with respect.

I am not suggesting that upholding civility requires individuals to adhere to a Judeo-Christian, or even religious, belief system. Rather, the premise of treating others as you wish to be treated demonstrates a fundamental respect for fellow persons and cultivates cordiality and amiability in both our immediate social and professional circles and in society at large. The concept of treating others with fundamental respect and decency is so simple. However, the very simple premise of treating others with civility and showing respect for others is, unfortunately, often overlooked in our modern society.

It is my observation that present-day society does not adhere to the same standards to which generations of the past cleaved. There has been a marked decline in civility throughout our modern society. I see this decline on a daily basis, both in my personal as well as in my professional life.

The marked decline in awareness of others has resulted in an almost myopic focus on the individual and permeates across all societal norms and all industries. However, because of the nature of the practice of family law, the lack of civility is especially pronounced.

We have all had the unfortunate experience of drawing an opposing counsel in a case who lacks the basic understanding of civility and how that relates to professional courtesy. Those of us who strive to treat our opponents with respect and courtesy often wonder how it is that a particular opposing counsel failed to embrace one of the most basic principles of the fabric of our society.

Is she of the mistaken belief that a complete lack of civility equates to effective lawyering? Or perhaps he is of the misbelief that a zealous advocate cannot also be a respectful person? Clearly, these characteristics are not mutually exclusive. Unfortunately, some of our fellow family law practitioners have failed to embrace the fact that professional courtesy and zealous advocacy can, and indeed must, go hand in hand.

This author is not suggesting that family law practitioners should abandon our obligations to zealously advocate on behalf of our clients. However, there is a fundamental and essential difference between being a zealous advocate for one’s client’s interests and advocating for one’s client with a complete lack of regard for civility.

It is critical for family law practitioners to understand the distinction between zealous advocacy and incivility, and its effect on our practice and profession. The mature and wise family law practitioner can easily recognize the distinction between making the ethical choice to treat opposing counsel with courtesy and purposefully thwarting the legal process by failing to extend a simple professional courtesy.

Where is the line? Is professional courtesy dependent on the depth of one’s professional relationship with opposing counsel? Should an attorney be more apt to treat an opposing counsel with whom she has had multiple cases in the past and will likely continue to oppose differently than an opposing counsel the attorney is likely to have only an isolated experience with? In practice, we are more apt to answer this question with a resounding yes, but is that the correct approach? Should not professional courtesy transcend all outside considerations?

Just as the simple premise of the “golden rule” has been frustrated by generations disregarding its merit, so too has the family law bar been frustrated by counsel who fails to contemplate the essential distinction between zealous advocacy and incivility. The family law bar is a relatively small bar. Those of us who are seasoned and reflective family law practitioners immediately recognize that courtesy begets courtesy. How does the opposing counsel’s lack of professional courtesy affect our willingness to extend courtesy?

We are obviously more inclined to extend courtesy where courtesy is extended to us. This is a fundamental component of human nature. However, if we resist the urge to fall into the proverbial abyss of discourtesy, then we should always extend courtesy to opposing counsel, even when our opponents do not meet our courtesy with reciprocity. But, is that the right thing to do? Is it more likely that attorneys who do not respect civility will abuse the professional courtesy extended by those of us who do pride ourselves in extending civility when civility is due?

If my ethical compass transcends all outside considerations and I adhere to the premise of the “golden rule,” then my willingness to extend professional courtesy to opposing counsel should be without regard to my prior experience with the attorney seeking the courtesy. However, human nature being what it is, I will always be more willing to extend professional courtesy to an opposing counsel who has in the past, or I am relatively certain will in the future, return the favor. This runs contrary to the premise that my ethical compass should transcend the outside forces which erode civility. Simply put, if I am truly a courteous individual, then I should be willing to extend professional courtesy regardless of the conduct of the person seeking it.

b. Balancing considerations

Where is the balance between professional courtesy and zealous representation? Do family law practitioners compromise their clients’ case by granting, for example, a one-week extension to reply to discovery? I would argue no, because quite frankly the court will grant such a request anyway. To fail to grant such an extension would be discourteous to opposing counsel, disrespectful to the judicial process, and result in an unwarranted increase in the attorneys’ fees incurred by both parties. However, it is not always appropriate to grant requests for extensions – be it with regard to discovery or for a continuance of a hearing, or any other such deadline – if doing so compromises our clients’ interests and position in the litigation. Herein lies the tension between being a zealous advocate and respecting the fundamental principle of courtesy.

When family law practitioners are determining whether to grant professional courtesy to an opposing counsel, each of us must, first and foremost, always contemplate whether such courtesy would compromise one’s client’s interests and position in the litigation. If the answer is yes, then regardless of how civil we wish to be, our first obligation is to our client and therefore we cannot extend that courtesy. Conversely, if granting the request does not harm the client, then failing to do so is a simple act of discourtesy and disrespect, and is entirely unwarranted in the practice of family law.

Any seasoned family law attorney is all too familiar with the “sturm und drang” that accompanies our practice. Our clients are emotional, often in crisis, and rarely thinking clearly. As family law practitioners, it is our responsibility to counsel our clients to make decisions based in logic rather than emotion, and to help them understand the contours of family law so as to provide them with reasonable, as opposed to unrealistic, expectations for the resolution of their matters. In order for family law practitioners to meet that responsibility, we must distance ourselves from our own clients’ pain. That is not to suggest that we practice devoid of empathy. Rather, it is to say that we recognize the pain that our clients are in, yet rise above it to provide them with sound advice absent the emotional content that so frequently overtakes family law cases.

The role of an advocate is to empathize while, at the same time, retaining an appropriate level of professional and emotional distance. Once an attorney becomes overly involved in the client’s emotive side, that attorney ceases becoming an effective advocate and loses the respect of the bench and bar.

Unfortunately, some family law practitioners relive their own trauma through the work that they do. Others are overly sympathetic with their clients, disregarding empathy and quality legal representation while over-identifying with their clients’ pain. The best of us never lose sight of the delicate balance that is required in order to be an effective advocate. We are cognizant of our clients’ pain, yet we never permit it to affect our legal advice, the direction of the litigation, and our ultimate decision as to whether and when to extend professional courtesy where courtesy is due.

c. Professional obligations and statutory remedies

Although civility and professional courtesy are indispensable components of the competent practice of family law, our Rules of Professional Conduct do not specifically enumerate the obligation to treat opposing counsel with civility. The closest mandate in our Rules of Professional Conduct that attorneys act with civility is embodied in the Rule which requires attorneys to act competently. “Competence” is defined as including not just professional diligence, learning and skill, but also as having the “mental, emotional, and physical ability reasonably necessary for the performance of such service.” See Rule 3-110, Rules of Professional Conduct.

The delicate balance that requires practitioners to zealously advocate while maintaining an emotional distance so as to be able to uphold professional courtesy and civility while litigating difficult family law matters requires us to cultivate a certain mental and emotional ability. Our practice suffers when we fail to recognize this, which results in a mockery of the concept of professional courtesy and civility. This also results in an unnecessary increase in attorneys’ fees to our clients and our adversaries, and an unnecessary burden upon our Courts, who are already suffering from a lack of judicial resources. The lack of civility in the practice of family law also frustrates the general public, dilutes our effectiveness as competent advocates, and results in the loss of respect of our clients.

It is interesting to note that the Contra Costa Bar has promulgated its own set of Standards of Professional Courtesy. The Preamble cogently states as follows: “The practice of law is largely an adversarial process. Attorneys are ethically bound to zealously represent and advocate their clients’ interests. Nonetheless, there exist certain standards of professional courtesy that are observed and certain duties of professionalism are owed by attorneys to their clients, opposing parties and their counsel, the courts and other tribunals, and the public as a whole.” The aforementioned set of Standards not only underscores the need to uphold civility and professional courtesy in the practice of family law, but also indicates the need to ensure that the members of the family law bar are not only aware of, but are also held to, a standard of practice which is of the utmost importance in what we do.

The Contra Costa Standards of Professional Courtesy specifically provide that “[t]hese standards have been codified to make the level of professionalism reflected in them the standard of practice within Contra Costa County….” That the Contra Costa bar took the time to promulgate these Standards speaks volumes about their commitment to upholding civility and professional courtesy in our practice. I applaud the Contra Costa bar for its efforts to codify such conduct and its commitment to embracing these standards.

It should not, however, be necessary to codify such conduct. We as members of the family law bar not only should, but must, embrace both courtesy and civility in the daily execution of our professional responsibilities. By becoming emotionally entangled and losing sight of civility and professional courtesy, a family law practitioner can, unfortunately but all too easily, run afoul of the requirements of our profession. The duty of competence mandates that we not lose sight of our obligation to act civilly.

d. Conclusion

We are faced, on a daily basis, with choosing between the temptation of returning discourtesy with discourtesy, and maintaining our professional standards and dignity. Every family law practitioner, in every case, must be ever vigilant in adhering to the basic tenets of civility and professional courtesy, lest we find ourselves sliding backwards down a slippery slope toward incivility and professional ineptitude.

This does not affect individual practitioners in isolation. Just as the lack of civility permeates modern society as a whole, the lack of civility among the family law bar permeates our profession. Practitioners who disregard the basic tenets, perhaps best embodied in the “golden rule,” do a disservice not only to the integrity of our profession but to their individual clients. Making the choice to resist the temptation to embrace discourtesy is a critical decision, and one that we must never lose sight of.

The requirements of our profession dictate that our only choice is to treat fellow family practitioners with professional courtesy and respect, so as to elevate our practice without compromising our clients’ interests and positions in their litigation. To some, this choice may seem difficult to make. However, the fundamental and simple principle that treating others with courtesy and respect begets the same must be self-evident. Resist the temptation to treat opposing counsel in a discourteous or uncivil fashion at all junctures, and at all costs. There is no justification for discarding these basic tenets.