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VOL. 123 | NO. 193 | Thursday, October 02, 2008

Issues of Civility, Professionalism Linger in Legal Community

By Rebekah Hearn

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ETHICAL DISCUSSION: Brian Faughnan, an attorney at Adams and Reese LLP, presents a slideshow during a Sept. 24 seminar titled “Legal Ethics: Common Challenges and Solutions.” -- PHOTO BY TAYLOR SHOPTAW

People who watch shows such as “Law & Order” might imagine lawyers constantly head-butting, arguing and back-stabbing.

However, in the real world, lawyers tend to be more collegial. But many lawyers have said they would like to see more civil, courteous behavior among their colleagues.

The Memphis Bar Association addresses this issue in seminars, including one held Sept. 17 called “Good Attorney/Bad Attorney,” and another held Sept. 24, titled “Legal Ethics: Common Challenges and Solutions.” A third seminar, to be held Oct. 24, is the MBA’s third annual “Professionalism, Civility and Courtesy Seminar.”

Generational difference?

Glen Reid, an attorney at Wyatt, Tarrant & Combs LLP, said when he began practicing in 1971, lawyers were more friendly and courteous to each other.

“When I started as an assistant U.S. attorney in 1971, it was very civil then; I was a prosecutor and there were a lot of good defense lawyers around town,” Reid said. “In the courtroom, we’d be growling and snapping at each other, but out in the hall we would be standing together telling jokes.”

As an example of that camaraderie, Reid said when one lawyer asked another for an extension of time, they simply would ask the opposing attorney, who could be taken at his word.

“Nobody even bothered to write a letter to confirm it,” Reid said. “People just got along, and it was very professional, very civil; but at the same time, the clients were well represented.”

Bernie Weinman, a former Criminal Court judge and a practicing lawyer, said he didn’t recall many problems with people being uncivil inside his courtroom, although he did agree that lawyers tended to be more friendly in times past.

The younger lawyers who are newer to the profession often say they’d like to see more civility among attorneys.

Whitney Fogerty, a shareholder at Ogletree, Deakins, Nash, Smoak & Stewart PC, told The Daily News in an earlier interview that if she could change anything about the practice of law, she’d like to see more courtesy among colleagues.

“Unfortunately, I think that civility has been put on the back burner, and many lawyers’ focus has turned … away from the courtesy that you are supposed to provide to one another,” Fogerty had said.

Weinman said perhaps one reason for the head-butting among younger lawyers is they are “putting on a show for their client.”

“Maybe (it’s) because we have so many more lawyers, and they feel they have to fight to get and keep the cases and clients,” he said.

David Cook, past president of the MBA, created a theme for the association last year of “Professionalism, Civility and Courtesy.” As vice president the previous year, he helped create the first annual “Professionalism, Civility and Courtesy Seminar,” the third one of which is being held this year.

“I’m an older lawyer, I’ve been practicing over 31 years, and maybe it’s nostalgia on my part, but I remember things when I started out being much more collegial,” Cook said.

Cook refers to Shakespeare’s line from “Taming of the Shrew,” which reads, “Do as adversaries do in law/Strive mightily, but eat and drink as friends.”

“He had it right 500 years ago,” Cook said.

Ethics from the beginning

Weinman said several years back, he was involved with a group that checked on ethics courses being taught in law schools, and he said “a lot of law schools at the time weren’t requiring ethics courses.”

“But I think that should be required before anybody graduates, to take an ethics course,” Weinman said.

Fogerty said in her earlier interview that “there needs to be a focus (on ethics) in law school, I believe, and it needs to continue.”

At the University of Memphis Cecil C. Humphreys School of Law, one two-hour course titled “Professional Responsibility” is required of all students.

Professor Ernie Lidge, who teaches that course as well as an elective legal ethics seminar, tends to disagree that a “golden age of lawyering” used to exist.

“If you read some of the stories about some of the lawyers in times past, they would play oftentimes unfair tricks and litigate sharply, and I think our code of professional responsibility is much more developed than 60 years ago,” Lidge said, referring to the MBA’s code of conduct, which was established in 1988 by then-president and former federal judge the late Jerome Turner.

Lidge also said that if there has been a decline in civility, it reflects the direction society as a whole is going.

“When I read a (John) Grisham book, for example, he oftentimes presents a lot of lawyers as … unethical,” Lidge said. “I don’t get that impression. I think the vast majority of lawyers are ethical.

“Now, the whole issue of courtesy – one person’s noncourteous behavior is not necessarily another’s.”

‘Gray-haired guidance’

Reid said young lawyers always should find a mentor at the beginning of their career.

“For the larger firms, like our firm, we’ve got an obligation to have people mentoring young lawyers, to coach them in that aspect of the practice of law, as well as every other aspect,” Reid said.

“If they’re on their own, they can still get with people at the bar association to get that sort of gray-haired guidance.”

Weinman agreed that mentoring is an excellent way to improve young attorneys’ perceptions of civility and dismantle the perception that lawyers always must be warring with each other.

Cook said he believes attorneys have an obligation to keep up the levels of civility, honesty and courtesy in their profession.

“We need to foster it, fan the flame, and keep it going, because I really think it’s what makes us different from any other group,” he said. “Just because we’re adversaries (in the courtroom) that doesn’t mean we can’t be friends, that we can’t be civil, that we can’t be collegial.”

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