Practicing Professionalism and Civility by KidSide Board Advisor Diane M. Trainor, Esq.
By KidSide Board Advisor Diane M. Trainor, Esq.
Researching this article on professionalism and civility in our family law practices, I realized how apropos the topic is as we return to the Courtroom following a year of practicing law via Zoom. As one of our esteemed Family Division judges observed, while Zoom may have increased our efficiency these last fifteen months, it was also a trade-off as practitioners “stepped back in the professionalism department” – more casual dress, informal settings, even our demeanor and interactions changed this past year as some practitioners and parties felt more emboldened to speak out of turn during court proceedings or be more vocal in challenging a judge’s ruling. This article will briefly address the actions to encourage professionalism and civility thus far undertaken by the Florida Bar, the Florida Supreme Court, and the judicial circuits; share with the reader views from the Bench and counsel; and highlight some of the Professional Expectations articulated by the Florida Bar Standing Committee on Professionalism and similar committees and task forces.
Issues with professionalism and civility in the practice of law is not a new problem. The late 1980s brought about the first in-depth research effort, when the Florida Bar set up a task force to address the “steep decline” in the state of professionalism. After seven years of research, the task force made recommendations to initiate education programs and discussion panels in the legal community, and issued “Guidelines for Professional Conduct.” Since then, the Florida Supreme Court has established the Henry Latimer Center for Professionalism and created a Commission on Professionalism, each purposed with promoting professionalism and civility in the practice of law. In 2011, a pledge of civility towards opposing parties and counsel in courtroom conduct and written and verbal communications was added to the Oath of Admission to the Florida Bar. In 2013, the Florida Supreme Court directed all judicial circuits to establish a “professionalism panel” to address complaints of unprofessional conduct outside of the Florida Bar’s formal grievance procedures. In 2019, H. Scott Fingerhut, a law professor at Florida International University, commented that “litigation….and the practice of law[are] so increasingly, stressfully competitive, bordering on cannibalistic, that perhaps civility is the best we can hope for – because the truth is both sides want to win, period, and too often do whatever it takes to do so” as he advocated a more active role by the legal community to promote civility. [ Hudson, David “Lawyer Speech Triggers Both Civility and Constitutional Concerns,” ABA Journal (September 2019).] On June 11, 2021, Michael Tanner, sworn in as President of the Florida Bar, committed to focusing during his term on the matter of professionalism in the legal community: “We’re going to look at how we teach it, how we define it, when we teach it, how we enforce it, how we promote it, what its relationship is to mental health and wellness.” [ Ash, Jim “President Tanner Emphasizes Professionalism,” Florida Bar News (June 14, 2021).]
The most common observation by judges and attorneys is the need to restore respect to the practice of law – respect to the Court, respect to opposing counsel and parties, and respect for the rules of procedure and evidence. Observations from the bench are as fundamental as reminding us to dress appropriately, to be on time, and to respect the Court’s calendar when requesting time for hearings and then completing the hearings within the time requested. Professionalism also includes knowing your rules of evidence and procedure and knowing how to make a legal objection without a long narrative that coaches a witness’s testimony or serves as a pseudo-closing argument. It is also “good lawyering” to know your file, both the facts and legal argument, that you plan to present to the Court that day – a well prepared advocate is being professional, an unprepared advocate is doing a disservice to their client and the Court.
One troublesome observation by the judges, general magistrates, and attorneys who contributed to my research is the discourtesy shown by some counsel towards each other. As one judge commented: “The one thing that has bothered me-that I have seen-is attacking opposing counsel…” As that jurist observed, berating opposing counsel as “disingenuous,” “uncooperative”, “lying” or “doesn’t know what he is doing” has no place in the practice of law and rarely has anything to do with the merits of the case. The Judge commended those advocates who stay “above board” and “are artful in communicating what they believe the problems to be” even when frustrated.
Similarly, a common complaint is that counsel continue to interrupt each other. Florida Supreme Court Justice Lewis once observed that today’s billboards and television commercials “promote the impression the best attorneys are the toughest and most aggressive.”[ Levy, Art “Contempt of Court: Florida’s Unruly Lawyers,” Florida Trend (January 31, 2014).] However, interrupting opposing counsel detracts from the substantive issues and inflames further bad behavior. Per Justice Lewis: “The greatest lawyers, and the lawyers I admired most, were good, wonderful lawyers, but also ladies and gentlemen.”[ This harkens back to a time in 1995 when a federal judge I observed in the District of Massachusetts required counsel to refer to each other as “brother counsel” and “sister counsel” rather than by name.] Attorneys should counsel their clients that no matter any bad behavior by opposing counsel, it serves no good purpose nor helps resolve a case to respond with similarly bad behavior. Quoting Judge Timothy Bailey of the Seventeenth Judicial Circuit: “Fiercely supporting your client is not a bad thing. In order to be professional, you need a combination of two things: courtesy and good lawyering. If you are missing one, you are not being professional.” [ Shomar, Henny A View from the Bench: Professionalism in Court. What Does That Mean to a Judge,” www.Lawyer.com (June 30, 2016).]
Another observation by a member of our Bench is that counsel not argue with a judge during or after the judge announces the ruling. Never have I seen such argument persuade a judge to change the pronounced determination.
A professionalism practice tip shared with me by a family law practitioner is, during hearings, show your proposed exhibit to opposing counsel before showing it to the witness and have an extra copy of the proposed exhibit for opposing counsel. Now that we are returning to live proceedings, we will no longer upload and serve proposed exhibits a week before the scheduled Zoom hearing. The courtesy will allow counsel to be prepared for making any appropriate legal objection.
A professionalism practice recognized in a recent appellate opinion is to have the candor to concede an error in an argument or presentation. Per the Third District Court of Appeal, candor in conceding error is “not only to be encouraged, but recognized, as well” as professionalism. [ Mihtar v. Wilmington Sav.Fund Soc’y, FSB, 239 So.3d 775, 776 (Fla. 3DCA 2018).]
One of the most comprehensive compilations of recommendations for achieving lawyer professionalism is “Professionalism Expectations”, published by the Florida Bar Standing Committee on Professionalism. Some recommendations are addressed here, with many more in the publication. I encourage my colleagues to read it. [ www.floridabar.org/prof/regularing-professionalism/professioalism-expectations-2/ ] One recommendation, relevant in this time of growing social media presence, is to not use social media to disparage opposing parties, judges and members of the public, nor use social media in a way to avoid lawyer advertising regulations. Think twice about whether you are acting with professionalism before you post your critique of opposing counsel’s argument from that day’s hearing, or negatively comment about a judge’s insight or integrity when you get an adverse ruling, or detail your glorious victory over the other party. Even when no names are posted, as part of human nature, curiosities are piqued and furthermore it reflects poorly on our profession’s civility.
As we return to live hearings, our clients will observe our interactions with each other. Though many of us are on a first name basis outside of the courtroom, consistent with the Professionalism Expectations, “A lawyer should refer to all parties, witnesses, and other counsel by their last names during legal proceedings.” [ Section 5, Par. 4, ‘Professionalism Expectations” supra. ] Especially in the family law forum, parties already distrust the other party. Attorneys should not give parties reason, however illogical, to question their own attorney’s allegiance to their case by thinking that counsel are friends who care more about working up the case then representing their client’s interest. Along these lines of courtesy and professionalism, a lawyer is expected to counsel their clients and witnesses that “approving or disproving gestures, facial expressions, or audible comments are absolutely prohibited in legal proceedings.”
In closing, as experienced attorneys, we should not only practice professionalism in our own matters, but serve the public interest by mentoring our young lawyers with guidance on practicing with professionalism and civility. Bad behavior by any one lawyer reflects poorly on attorneys as a whole and feeds the negative attorney stereotypes. Professionalism, on the other hand, upholds the dignity of the distinguished professionals we strive to be as members of the Florida Bar.[ Many thanks to the judges, general magistrates and colleagues who shared with me their observations and recommendations as I prepared this article.]