Washington Lawyer - January/February 2025 - 11

FEATURE
plains. " You may need an accommodation down the line, or you may
need a favor, and being needlessly combative raises the costs. "
UNINTENDED CONSEQUENCES
As Farr points out, a lack of courtesy can also seriously undermine an
attorney's credibility with the court.
The preamble to the D.C. Bar Voluntary Standards of Civility in Professional
Conduct sets out other potential consequences of incivility, spotlighting
its impact on the public's perception of the profession. Because the
standards are voluntary, violating them does not incur penalties. Adopted
in 1996, the standards urge practitioners to treat all participants in the
legal process - including counsel and their staff, witnesses, judges, and
court personnel - in a civil, professional, and courteous manner at all
times and in all communications, but violations of the standards are explicitly
not the basis for litigation or sanctions.
Hope Todd, D.C. Bar associate director of legal ethics, provides several
reasons for the lack of enforcement mechanisms in the Bar's standards
of civility. One is the element of subjectivity in assessing an individual's
conduct. The most egregious examples of incivility, where actions are
more likely to be objectively offensive, commonly implicate existing ethics
rules, which have their own enforcement mechanisms, Todd says.
D.C. Rule of Professional Conduct 3.4 (Fairness to Opposing Party and
Counsel), for example, prohibits many of the activities highlighted by the
voluntary standards. Frivolous discovery requests, allusions to irrelevant
matters, and a lawyer's statements that assert their personal opinion of
the justness of the cause, credibility of a witness, culpability of a civil litigant,
or the guilt or innocence of the accused are all forbidden.
Another reason for the absence of sanctions is that, impressions aside, incivility
is a relatively uncommon problem in court proceedings. " I don't
see a lot of incivility or hear about it from the
lawyers who use the services of the Legal Ethics
Program, " Todd says. " Of course, I see it on
TV, in the press, in politics, but I suspect it is a
small minority of the profession. I think that
lawyers, for the most part, are engaged in civil
behavior. Civility is something that's important
to most lawyers. "
Of course, attorneys are expected to zealously
represent their clients' interests, but Todd
says that the voluntary standards of professional
conduct allow for the aggressive pursuit
of a claim that doesn't stray into incivility.
" Filing motions, making demands on behalf
of your client ... when you think there is a legitimate
basis, where you think the other side
is hiding the ball, you can push them on it, "
she says. " That's exactly what you're supposed
to be doing, and there's nothing uncivil
or unethical about that conduct. "
The dividing line between civil and uncivil
behavior can often be determined by assessing
the degree to which an action or statement
is connected to the merits of a matter.
JANUARY/FEBRUARY 2025 * WASHINGTON LAWYER 11
Ad hominem attacks, for example, tend to assail the individual rather
than the argument, crossing into incivility, and motion practice that has
no purpose other than to frustrate and delay the opposition is also meritless
and uncivil, says Todd.
On the flip side, being civil can strengthen a litigator's reputation among
their opponents. Farr has received referrals from opposing counsel as
well as employment offers based in part on the work he did while fighting
them. " I don't think that would have happened if I had been uncivil
in the process, " he says.
In his mentorship of younger attorneys, Farr seeks to model professionalism.
" I think it's a responsibility for the more experienced attorneys to
mentor younger attorneys, and teaching civility and professionalism is
a part of it, " he says.
PATH TO DURABLE RESOLUTION
In 2023 the American Bar Association polled a thousand individuals
about their impression of civility in society and collaboration among
leaders, and an overwhelming majority (85 percent) said they believe
that civility is worse than it was 10 years ago.
Judges Robin L. Rosenberg and Beth Bloom of the U.S. District Court
for the Southern District of Florida sought to address a rise in incivility
through outreach to the younger generation, developing a course titled
" Civil Discourse and Difficult Decisions " (CD3) for high school students
to learn about the court system and the importance of civility in situations
involving conflict and disagreement. Both judges had young children
in 2016, when they became concerned that the uncivil discourse of
the time would impact their children's behavioral development and ability
to discern acceptable modes of communication, especially among
leaders.
The most egregious examples of incivility,
where actions are more likely to be objectively
offensive, commonly implicate existing ethics rules.
Washington Lawyer - January/February 2025

Table of Contents for the Digital Edition of Washington Lawyer - January/February 2025
