Everyone has had bad days and said something they later regret. However, for lawyers and law firms, incivility carries added risk—especially when the behavior becomes habitual.
Incivility in the practice of law can lead to adverse outcomes in case matters, accusations of legal malpractice, claims of ethics violations, hostile workplace cultures, adverse health effects and a generalized lowering of the public’s esteem for the legal profession.
To reduce your risk of a claim—and benefit the wider legal profession—it’s important to understand the issues impacting uncivil behavior, learn how you can improve your professional conduct and foster positive behavior in others in the legal profession. Here’s what to know:
How Law Has Become More Uncivil
According to several reports, the levels of incivility and hostility in the practice of law are rising.
- About 85% of lawyers report experiencing uncivil behavior in the past six months.1
- Those affected by incivility experience more than 10 such interactions per week.2
- At the same time, confidence in state and federal courts has declined to an average of 65%.3
Legal professionals as well as the general public are noticing new hostility in the courtroom, in depositions, in settlement conference and on social media. Examples of this uncivil behavior can vary, with lawyers:
- Receiving emails that range from discourteous to harassing or discriminatory.
- Dealing with attorneys yelling over clients and shouting insults at trial.
- Witnessing refusals to grant an extension to accommodate opposing counsel’s vacation.
Some offending attorneys appear to be unaware of the extent of their behavior, while others believe their zealous approach benefits clients and case matters. But these uncivil actions risk more negative outcomes for lawyers and their clients.
What Is Required by Professional Ethics
The ABA Model Rules of Professional Conduct affirm that lawyers have a duty to protect and pursue client objectives, with an expectation to engage in advocacy and debate. However, lawyers are expected to do so “while maintaining a professional, courteous and civil attitude toward all persons in the legal system.”4
While lawyers are expected to act with diligence toward clients and case matters, Comment  of Model Rule 1.3 specifically addresses the risks of incivility:
The lawyer’s duty to act with reasonable diligence does not require the use of offensive tactics or preclude the treating of all persons involved in the legal process with courtesy and respect.5
The Model Rules provide further guidance on proper conduct in:
- Model Rules 3.4 and 3.5(d), concerning how to conduct oneself before the court and with other parties before the court, such as judges, jurors and witnesses.6
- Model Rule 4.4(a), concerning prohibiting the use of “means that have no substantial purpose other than to embarrass, delay or burden a third person” when representing a client.7
- Model Rules 8.2(a), 8.4(d) and 8.4(g), concerning one’s conduct when making statements about judges, making comments that involve fraud, dishonesty, deceit or misrepresentation, or are harassing or discriminatory.8
What Sanctions Uncivil Lawyers Have Faced
Incivility in the practice of law can carry serious risk for lawyers and law firms. Professional sanctions are possible not only when a lawyer has engaged in violent or criminal actions, but also when their conduct is merely inappropriate or uncivil. Several examples are notable:
- A California lawyer had a personal case against Chase Bank dismissed after threatening an opposing counsel at a deposition with pepper spray and a taser and insulting a judge at a hearing. In deciding the case, the Second District Court of Appeals stated, “[f]ar from the trial court abusing its discretion, it would have been an abuse of discretion not to impose a terminating sanction.”9
- A Florida lawyer litigating a civil matter between two business partners received a two-year license suspension for his rude conduct. An initial suspension of three months was extended on appeal based on the lawyer violating at least four Florida Bar Rules related to professional conduct by sending emails accusing the opposing counsel of lying, threatening malpractice sanctions and spreading gossip that other lawyers had called the opposing counsel “underhanded and a scumbag.”10
- A Chicago lawyer representing a client in an insurance settlement dispute was recommended to receive a six-month license suspension for insulting an opposing lawyer with “abusive and vulgar language” during a deposition and making false or reckless statements when he criticized a judge as engaging in “robe rage.”11
How Incivility Affects Case Matter Outcomes
Legal incivility also has the potential to negatively affect case matter outcomes, resulting in malpractice claims. In the courtroom, incivility can negatively influence a judge’s view of a lawyer as well as their view of the client’s position.
Judges routinely comment that they are unimpressed when a lawyer employs personal attacks and insults in the course of their representation of clients. Lawyers who continue to do so risk developing a negative reputation among judges in a particular courthouse, which can further impact legal outcomes for that lawyer and their clients.
While a judge acting in a professional capacity may not consciously rule against a client on account of a lawyer’s incivility or antagonism, it does not support the client’s cause. While some attorneys may employ zealous tactics to convince clients they provide a robust representation, clients can take the opposite view if they lose the case.
Uncivil representations can cause clients to bring malpractice suits, as was the case when two water balloon companies litigating a patent dispute accused their former attorneys of causing added financial harm with excessive and untimely motions and appeals.12
What Steps to Take to Manage Risk
With the high stakes involved in many legal matters, many lawyers and law firms face significant risk from incivility in the practice of law. Certain aspects of the modern legal profession help foster this counter-productive incivility:
- Clients expect a robust performance from their attorney, often influenced by inaccurate illustrations of the legal profession on television and in the media.
- Big firms seek out lucrative relationships with big-name clients based on a reputation for zealous representations.
- Dissatisfied clients may look to a lawyer’s demeanor and behavior as a cause of an unfavorable outcome in court.
- Demanding caseloads and schedules can increase stress and fatigue, leading to a civil attorney acting in an uncivil way under pressure.
- Some lawyers may even antagonize their opposing counsel in an effort to provoke an uncivil response and gain the upper hand.
While the risk of unfavorable rulings and malpractice claims are always present, lawyers can help minimize the risks incivility has on their legal practice with these steps:
- Understand the nature of the problem. Realize that incivility is a significant problem in the legal profession, understand its causes and be prepared to deal with it appropriately.
- Review your professional obligations. Know the rules of professional conduct for your state regarding the conduct expected of lawyers.
- Practice law with a focus on civility. Aim to provide a robust representation to clients while remaining civil and professional in all your interactions.
- Meet uncivil behavior with civil behavior. Understand that remaining professional when others are unprofessional is often one of the best things you can do.
- Remove yourself from hostile situations. Remember that rules and procedures exist to allow you to minimize your exposure to hostility from other attorneys.
- Ensure you have proper insurance protection. Protect your practice and your career from claims of malpractice with legal professional liability insurance.
Incivility in the practice of law remains a risk for lawyers and law practices. But by taking the right steps, you can minimize the risk it poses to your practice.
- See Survey on Professionalism: A Study of Illinois Lawyers 2014, 5.
- See Civility in America 2019, 4.
- See 2019 State of the State Courts Survey, 2.
- Comment  to the Preamble of the ABA Model Rules of Professional Conduct (2021).
- ABA Model Rule 1.3 (2021)
- See ABA Model Rules 3.4 and 3.5(d) (2021).
- ABA Model Rule 4.4(a) (2021)
- See ABA Model Rules 8.2(a), 8.4(d) and 8.4(g) (2021).
- See Crawford v. JP Morgan Chase Bank, N.A., 2015 WL 8355515 (Dec. 9, 2015).
- See Florida Bar v. Norkin, 2013 BL 302342, Fla., No. SC11-1356, (Oct. 31, 2013).
- See In re Charles Cohn, M.R. 30545, Commission No. 18 PR 109 (February 11, 2021)
- See Telebrands Corp., et al. v. Boies, et al., Case No. 2:2020cv06942, USDC NJ (July 7, 2020).