The lack of civility that has spilled over from the political arena to everything from airlines to school board meetings has also permeated the courtroom. In recent years, there has been an uptick in incidents involving attorneys’ use of profanity, threatening language and slurs against opposing counsel and even judges in their verbal and written communication.  

From both an ethical and practical standpoint, lawyers who behave uncivilly in their legal discourse not only risk sanctions for violating the rules of professional conduct, but they risk harming their clients’ cases.

Attorney’s License Suspended for Anti-Gay Slur about a Judge

Earlier this year, the Colorado Supreme Court upheld a hearing board’s decision to suspend Attorney Robert E. Abrams’ law license for three months, stayed upon the successful completion of 18 months of probation, after he called a judge a “gay, fat, f*g,” among other insults, in an email to two clients. Abrams was representing the clients, a married couple, in a dispute against their contractor, and sent the email after he had tangled with the judge during a hearing. After Abrams’ relationship with the couple soured, his comments about the judge came to light when the couple filed a complaint about the attorney over a billing matter.

A hearing board of the Office of the Presiding Disciplinary Judge found that Abrams violated Colorado RPC 8.4(g), which prohibits an attorney, in his representation of a client, from engaging in conduct that exhibits or is intended to appeal to or engender bias against a person based on the person’s race, gender, religion, national origin, disability, age, sexual orientation, or socioeconomic status, when such conduct is directed to anyone involved in the legal process.

“In his private life, a lawyer is free to speak in whatever manner he chooses,” the hearing board explained. “When representing clients, however, a lawyer must put aside the schoolyard code of conduct and adhere to professional standards.”

Other Recent Sanctions

State bars around the country have been cracking down on uncivil behavior.

In May, the Supreme Court of Louisiana upheld the suspension of Cecilia Abadie’s law license for a year and a day, after she made unsupported allegations that a judge colluded with other parties in a heated child support and paternity litigation matter.

The Court agreed with the Office of Disciplinary Council that the attorney violated Rule 1.1 in failing to provide competent representation for her client and Rule 8.2 in making statements with reckless disregard as to their truth or falsity in attacking the integrity of a judge; and that in failing to follow these rules, she violated Rule 8.4(a), the Rules of Professional Conduct.

With regard to Rule 8.2, Abadie made unsubstantiated attacks against the presiding judge and opposing counsel via pleadings and correspondence. Her actions included writing a letter to the District Attorney and a state Representative accusing Judge Robert Murphy, of the Fifth Circuit Court of Appeals, and the Department of Children and Family Services of “collusion.” The letter “attacked Judge Murphy’s integrity with reckless disregard for the truth or falsity of her statements,” the Court said. In a sworn statement, Abadie said she never actually mailed the letter to the two addressees. But she did send a carbon copy to two attorneys that she accused of being involved in the collusion.

She also filed a federal lawsuit against Judge Murphy, later adding a second judge and multiple attorneys as defendants, alleging the same collusion but providing no evidentiary support. The lawsuit was dismissed. The Court said Abadie caused harm to the judges and attorneys. “These individuals suffered stress, anxiety, and damage to their reputations,” the Court said.

Closer to home, a three-person panel of the Illinois Attorney Registration & Disciplinary Commission recommended last year that an attorney be suspended for three months for insults directed at opposing counsel during a November 2016 deposition in the Circuit Court of Cook County. Attorney Charles Cohn heard a question that he described as “vague” and “ridiculous” and instructed his client not to answer it. The opposing lawyer noted her disagreement, stating “Certify the question.” Cohn replied, “OK, then certify your own stupidity.” He later called the attorney a “bitch.” When she asked him to stop insulting her, Cohn replied, “A man who insults on a daily basis…has now been elected President of the United States. The standards have changed. I’ll say what I want.”

But, in fact, the code of ethics has not changed. The ARDC found that Cohn’s aggressive behavior violated three of the Illinois Rules of Professional Conduct: Rule 3.5(d), which provides that a “lawyer shall not engage in conduct intended to disrupt a tribunal,” including at a deposition; Rule 4.4(a), which prohibits lawyers from “us[ing] means that have no substantial purpose other than to embarrass, delay, or burden a third person; and Rule 8.4(d), which cautions lawyers against behaving in a way “that is prejudicial to the administration of justice.”

Harm to Clients

The threat of sanctions aside, attorneys do their clients no favors by behaving badly in the course of representing them. No lawyer wants to be in the position of needing to plead to a judge or jury, “Do not hold my behavior against my client.”

Beyond damaging a particular client’s case in the short term, bad behavior harms a lawyer’s relationships and, by extension, his clients’ interests over the long term. Law is a collaborative profession, and it’s a small community. Whether negotiating a settlement or litigating a case, lawyers must work collaboratively. There is always a need to ask for accommodations from each other, such as extending deadlines or rescheduling hearings. Professional dealings with other attorneys go much more smoothly, and for the benefit of clients, when attorneys are not trading insults or calling each other names.

Novack Macey's Legal Malpractice Defense group represents law firms and lawyers in disputes involving transactional, litigation, and ethical malpractice as well as virtually every other type of dispute that arises in the legal profession. To contact the author, please email Brian E. Cohen at bcohen@novackmacey.com or call 312.419.6900.