Douglas S. Lang 2015-09-30 02:54:25
Can courts require civil conduct? Can Texas courts require civil conduct by lawyers? To answer that question, we must decide whether lawyer civility is at least implied by the court and the disciplinary rules or whether “civility” is only part of the professionalism creeds and merely “aspirational.”1 Considerable controversy surrounds this topic, not just in Texas but across the country. Generally, there are three viewpoints: 1) Some contend that aspirational goals requiring civility should be expressly incorporated into provisions of bar disciplinary rules and court rules in order to make civility mandatory.2 2) Others argue that reports of uncivil behavior are exaggerated and that if civility were a mandatory standard for lawyer conduct, it would be fatally ambiguous, violate the First Amendment, and deny due process.3 3) Still others argue that the obligation for lawyers to act in a civil manner, as described in lawyers’ creeds, is at least implied in court and disciplinary rules and that uncivil conduct can be addressed using statutes and rules empowering courts to protect their jurisdiction.4 This article objectively describes these three viewpoints, but urges that professionalism requires civility.5 As Justice Sandra Day O’Connor has written, “More civility and greater professionalism can only enhance the pleasure lawyers find in practice, increase the effectiveness of our system of justice, and improve the public’s perception of lawyers.”6 WHAT IS CIVILITY? Civility can best be defined by distinguishing it from professionalism. The Conference of Chief Justices has adopted the stance that “Professionalism is a much broader concept than legal ethics—professionalism includes not only civility among members of the bench and bar, but also competency, integrity, respect for the rule of law, participation in pro bono and community service, and conduct by members of the legal profession that exceeds the minimum ethical requirements. Ethics are what a lawyer must obey. Principles of professionalism are what a lawyer should live by in conducting his or her affairs.”7 The Texas Lawyer’s Creed similarly describes the meaning of professionalism: “I am a lawyer; I am entrusted by the People of Texas to preserve and improve our legal system. I am licensed by the Supreme Court of Texas. I must therefore abide by the Texas Disciplinary Rules of Professional Conduct, but I know that Professionalism requires more than merely avoiding the violation of laws and rules. I am committed to this Creed for no other reason than it is right. ... A lawyer owes to the administration of justice personal dignity, integrity, and independence. A lawyer should always adhere to the highest principles of professionalism.”8 In contrast, some say that the definition of “civility” is distinct.9 They suggest that civility encompasses a set of core values based upon common sense or manners. As such, they contend that the term as used in various lawyers’ creeds lacks the necessary “specificity” to be enforceable10 and offer three solutions: 1) the courts could develop a case-by-case definition of civility; 2) the codes or creeds could be drafted with more specific terms; and 3) the state bars could issue advisory opinions on specific civility issues.11 However, use of such complex solutions is not the only way to find a serviceable meaning for civility. One simpler method is to accept the common sense meaning of civility—respect. As Justice Anthony Kennedy has explained, “Civility is the mark of an accomplished and superb professional, but it is even more than this. It is an end in itself. Civility has deep roots in the idea of respect for the individual.”12 Another method to specify the meaning of civility is to consider its plain meaning. 13 In this case, the Merriam-Webster Dictionary defines the word as “polite, reasonable, and respectful behavior.”14 Civility can also be defined by what it is not. When the Texas Supreme Court and the Texas Court of Criminal Appeals adopted the Texas Lawyer’s Creed on November 7, 1989, the courts explained that “abusive tactics” in the practice of law must be eliminated because “[s]uch behavior does not serve justice but tends to delay and often deny justice.”15 CAN CIVILITY BE ENFORCED? At least one court disagrees with those who believe that civility is too vague to be enforced. In the Dondi Properties case, the U.S. District Court for the Northern District of Texas connected rules, statutes, and a professionalism creed to create a set of rules for enforcing civil conduct.16 The court, sitting en banc, lamented “refereeing abusive litigation tactics that range from benign incivility to outright obstruction.” 17 It then announced no tolerance for such behavior and imposed new standards of conduct for practice in its district: the Dallas Bar Association’s Lawyer’s Creed and Guidelines of Professional Courtesy.18 The court made it clear, “We think the standards we now adopt are a necessary corollary to existing law and are appropriately established to signal our strong disapproval of practices that have no place in our system of justice and to emphasize that a lawyer’s conduct, both with respect to the court and to other lawyers, should at all times be characterized by honesty and fair play.”19 Yet in Texas, there is no specific requirement, enforceable by our courts, that all lawyers conduct themselves in a civil manner as in the federal courts of Texas or in some other states.20 Rather, an array of rules and statutes indirectly addresses abusive litigation tactics. One set of rules and statutes applicable to state courts requires that proceedings be administered in a “just” and “fair” manner and adjudication of a party’s rights must be conducted without undue delay or excessive “expense.”21 Further, the Texas Disciplinary Rules of Professional Conduct address many of the same issues regarding efficient court administration as described in Chapter 1 and Art. 1.03 of the Texas Code of Criminal Procedure. For instance, lawyers are prohibited from causing unreasonable delay in an action or unreasonably increasing costs.22 The Disciplinary Rules are routinely cited by courts as guidelines for appropriate conduct. Still, they cannot be used as a basis for civil claims or “procedural weapons,”23 so courts do not cite them as grounds for sanctions.24 Additionally, the “oath of attorney” includes another important description of a lawyer’s responsibilities and requires the lawyer to state that he or she will “honestly demean” themselves and that he or she will conduct themselves “with integrity and civility in dealing and communicating with the court and all parties.”25 Yet, there is no rule or statute for enforcement of the “oath.” Finally, while the Texas Lawyer’s Creed goes to great lengths to identify acceptable lawyer conduct, including the standard “My word is my bond,” the Texas Supreme Court concluded that the creed “does not create new duties and obligations enforceable by the courts beyond those existing as a result of (1) the courts’ inherent powers and (2) the rules already in existence.”26 Nevertheless, this statement provides guidance and confirms the declaration made by the court that “[c]ompliance with the rules depends primarily upon understanding and voluntary compliance, secondarily upon reinforcement by peer pressure and public opinion, and finally when necessary by enforcement by the courts through their inherent powers and rules already in existence.”27 CONCLUSION The core values of honesty, integrity, and civility are laid out in clear language in the creed, the disciplinary rules, and the oath of attorney. However, as the Supreme Court observed, when necessary, all of the courts of our state have the tools to compel compliance with the law and the tenants of the creed.28 If some lawyers will not respect the creed, and “peer pressure” and “public opinion” have no effect upon them, then our courts may employ “their inherent powers and rules already in existence.”29 NOTES 1) Order of the Supreme Court of Texas and the Court of Criminal Appeals, The Texas Lawyer’s Creed: A Mandate for Professionalism (1989), http://www.txcourts.gov/media/276685/texaslawyerscreed.pdf (last accessed July 23, 2015) [hereinafter “Texas Lawyer’s Creed”]. 2) David A. Grenardo, Making Civility Mandatory: Moving From Aspired to Required, 11 CARDOZO PUB. L. POL’Y & ETHICS J. 239, 244-45, 259-264 (2013); David A. Grenardo, An Uprising of Civility in Texas, 5 HLRE: OFF THE RECORD 1, 10 (2014); see In re Anonymous Member of the S.C. Bar, 709 S.E.2d 633, 636-38 (S.C. 2011) (disciplining lawyer for conduct prejudicial to administration of justice and violation of lawyer’s oath that includes “civility”). 3) Amy R. Mashburn, Making Civility Democratic, 47 HOUS. L. REV. 1147, 1149, 1222 (2011); Amy R. Mashburn, Professionalism as Class Ideology: Civility Codes and Bar Hierarchy, 28 VAL. U. L. REV. 657, 665 (1994); cf. In re Anonymous Member of the S.C. Bar, 709 S.E.2d at 636-638. 4) PNS Stores, Inc. v. Rivera, 379 S.W.3d 267, 276-77 (Tex. 2012); Texas Lawyer’s Creed, supra note 1. 5) See ILL. SUP. CT. COMM’N ON PROFESSIONALISM, SURVEY ON PROFESSIONALISM: A STUDY OF ILLINOIS LAWYERS 11, 22, 36 (Dec. 2007), http://www.2civility.org/wp-content/uploads/2013/12/surveyonprofessionalism_final.pdf (last accessed July 23, 2015) (reporting views about how to improve civility: 86 percent believed training and educating judges to deal with incivility; 83 percent law firm discipline of own lawyer; 82 percent imposition of judicial sanctions; 84 percent mentoring programs for “young” lawyers; 76 percent increased law school training on civility and professionalism). 6) Sandra Day O’Connor, Professionalism, 76 WASH. U. L.Q. 5, 8 (1998). 7) Paula L. Hannaford, The National Action Plan on Lawyer Conduct and Professionalism: A Role for the Judge in Improving Professionalism in the Legal System, 36 CT. REV. (SPECIAL ISSUE) 36 (Fall 1999) (adopted January 21, 1999, by the Conference of Chief Justices), http://aja.ncsc.dni.us/courtrv/cr36-3/CR%2036-3%20Hannaford.pdf (last accessed July 23, 2015). 8) Texas Lawyer’s Creed, supra note 2. 9) Donald E. Campbell, Raise Your Right Hand and Swear to Be Civil: Defining Civility as an Obligation of Professional Responsibility, 47 GONZ. L. REV. 99, 146 (2011). 10) Id. at 145. 11) Id. at 146. 12) Justice Anthony Kennedy, Address to the 1997 ABA Annual Meeting (Aug. 5, 1997). 13) See Entergy Gulf States, Inc. v. Summers, 282 S.W.3d 433, 437 (Tex. 2009). 14) MERRIAM-WEBSTER DICTIONARY, http://www.merriam-webster.com/dictionary/civility (last accessed July 23, 2015). 15) Texas Lawyer’s Creed, supra note 1. 16) Dondi Props. Corp. v. Commerce Sav. & Loan Ass’n, 121 F.R.D. 284, 287 (N.D. Tex. 1988). https://casetext.com/case/dondi-properties-corp-v-commerce-sav-andloan-assn. 17) Id. 18) DALLAS BAR ASSOCIATION, LAWYER’S CREED AND GUIDELINES OF PROFESSIONAL COURTESY, adopted October 15, 1987, http://www2.dallasbar.org/documents/DBA%20ProfGLsCourtesy.pdf (last accessed July 23, 2015). 19) Dondi Props. Corp., 121 F.R.D. at 287-88. 20) Federal districts in Texas have adopted rules similar to Dondi. In re Bradley, 495 B.R. 747, 783 n.22 (Bankr. S.D. Tex. 2013); In re Armstrong, 487 B.R. 764, 773 (E.D. Tex. 2012); In re Mortgage Analysis Portfolio Strategies, Inc., 221 B.R. 386, 389 (Bankr. W.D. Tex. 1998); see In re Anonymous Member of the S.C. Bar, 709 S.E.2d at 636-638. 21) TEX. R. CIV. P. 1 (“The proper objective of rules of civil procedure is to obtain a just, fair, equitable and impartial adjudication of the rights of litigants ... [with] ... expedition and dispatch and at the least expense. ...” (emphasis added)); TEX. CODE CRIM. P. art. 1.03 (“This Code ... seeks: ... 3. To insure a trial with as little delay as is consistent with the ends of justice; ... 5. To insure a fair and impartial trial; ...” (emphasis added)). 22) A lawyer shall not bring or defend a proceeding, or assert or controvert an issue, unless the lawyer reasonably believes there is a basis for doing so that is not frivolous.” TEX. DISCIPLINARY R. PROF’L CONDUCT 3.01, reprinted in TEX. GOV’T CODE ANN., tit. 2, subtit. G, app. A (West 2005) (TEX. STATE BAR. R. art. X, § 9). “A lawyer shall not take a position that unreasonably increases the costs or other burdens of the case or unreasonably delays resolution of the matter.” TEX. DISCIPLINARY R. PROF’L CONDUCT 3.02. “A lawyer shall not use means that have no substantial purpose other than to embarrass, delay, or burden a third person, or use methods of obtaining evidence that violate the rights of such a person.” TEX. DISCIPLINARY R. PROF’L CONDUCT 4.04. 23) TEX. DISCIPLINARY R. PROF’L CONDUCT pmbl. ¶ 15. 24) Id; see Twist v. McAllen Nat’l Bank, 248 S.W.3d 351, 364-368 (Tex. App.—Corpus Christi 2007, orig. proceeding). 25) TEX. GOV’T CODE ANN. § 82.037(a) (amended by Acts 2015, 84th Leg., ch. 17 (S.B. 534), § 1, eff. Sept. 1, 2015); See also TEX. DISCIPLINARY R. PROF’L CONDUCT 4.01 (stating a lawyer shall not misrepresent a material fact). 26) PNS Stores, Inc., 379 S.W.3d at 276-77. 27) Texas Lawyer’s Creed, supra note 2. As to inherent powers of the court, see Armadillo Bail Bonds v. State, 802 S.W.2d 237, 239-40 (Tex. Crim. App. 1990) (en banc); Houtex Ready Mix Concrete & Materials v. Eagle Constr. & Envt’l Svcs., L.P., 226 S.W.3d 514, 524 (Tex. App.—Houston [1st Dist.] 2006, no pet.); Kutch v. Del Mar Coll., 831 S.W.2d 506, 510 (Tex. App.—Corpus Christi 1992, no writ); see also TEX. CIV. PRAC. & REM. CODE §§ 9.012, 10.002, 10.004; TEX. R. CIV. P. 13, 166a, and 215. 28) See Texas Lawyer’s Creed, supra note 1. 29v PNS Stores, Inc., 379 S.W.3d at 276-77. DOUGLAS S. LANG is a justice of the 5th Court of Appeals in Dallas, a member of the State Commission on Judicial Conduct, a trustee and member of the Executive Committee of the American Inns of Court Foundation, a past president of the Dallas Bar Association and the National Conference of Bar Presidents, and a past chair of the Texas Center for Legal Ethics.
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