by Lei Lei Wang Ekvall

Bret Michaels recently said, “Don’t mistake my kindness for weakness” and went on to win Celebrity Apprentice. The same, I think, goes for civility. If anything, I, for one, equate the lack of civility with weakness. When opposing counsel engages in uncivil or unprofessional behavior, I assume one of two things—1) opposing counsel lacks experience and doesn’t know what he or she is doing or 2) opposing counsel lacks confidence in his or her abilities or his or her case and is trying to cover up his or her weakness with attitude. Neither one presents a position of strength. (Bret Michaels, incidentally, was lead singer of Poison, the famous glam metal band of the ’80s, with a roster of hit songs having nothing to do with kindness and civility. Think big hair and tight pants.)

The lack of civility and professionalism in our profession remains a constant concern to practitioners and judges. And unfortunately, the public is often a witness to the unseemly behavior of a few bad apples in our profession.

There are some individuals who are uncivil and unprofessional, but do not seem to know it. They tout the virtues and importance of civility and professionalism but behave like bullies. Just in case someone is not clear on what constitutes uncivil behavior, many bar associations have formulated and adopted guidelines on civility. The Litigation Section of the State Bar of California has a set of guidelines to address inappropriate activities and to promote civil and professional conduct among California litigators. The State Bar’s Code of Civility and Professionalism, which is 13 pages long, provides some very detailed examples of what to and not to do in litigation. The Orange County Bar Association also provides guidance on the subject. The Honorable Kim R. Hubbard, through the Mentor on Demand program, offers a judicial perspective and advice on civility in the courtroom. One of the main focuses of the American Inns of Court is to assist its members in achieving the highest level of professionalism. Here in Orange County, we have four local chapters (in order of proximity to my office): 1) The William P. Gray Legion Lex American Inn of Court, 2) The Robert A. Banyard American Inn of Court, 3) The Peter M. Elliott American Inn of Court, and 4) The Warren J. Ferguson American Inn of Court. Even for those of us who strive to be civil and professional, it doesn’t hurt to avail ourselves of these resources just to ensure that we remain true to the principles of our honored and noble profession. (These are featured this issue in Rock Kendall’s article.)

The main problem, however, is that the bad apples, who are unlikely to be reading this (or those in denial—they are reading this but do not think it applies to them). The State Bar’s Code of Civility and Professionalism acknowledges that it is not a set of legal rules or regulations that can be enforced by courts. It is necessary, however, for the courts to be more engaged in the fight against uncivil behavior. The incentive for the courts to be more active clearly exists. Courts are directly impacted by uncivil behavior of practitioners. With an already crushing case load and constant budgetary concerns, the courts do not need the addition of discovery motions, sanctions motions, and other pleadings directed at frivolous claims. Uncivil behavior that is largely unchecked is likely to be repeated and emulated. A nominal sanction or a stern word will have very little impact on the bad apples (or those who are in complete denial about their uncivil conduct). Instead, the message condones uncivil behavior. As we change our favored manner of communication, from face-to-face and telephone to texting and email, and as the demands of our practice continue to mount, there is an increasing likelihood of uncivil or unprofessional behavior. The courts play a critical role in stemming the tide. The bar associations can provide the rules of the playground but it’s the judges’ word that matters.

Clients can play a factor in addressing the problem as well. Uncivil and unprofessional behavior costs money, in the form of delays and unnecessary disputes. Also, remember that old adage, “You catch more flies with honey than vinegar?” At the end of the day, an uncivil and unprofessional attorney can cost a client more money. If clients were better informed, the bad apples will feel the consequences in their pocket books. Money talks. The bar associations can serve an important role in educating the public and the prospective clients.

There is also a carrot to behaving civilly. It is not uncommon for an effective lawyer who behaved civilly and professionally to receive referrals from opposing counsel. No one wants to refer cases to someone who is difficult or untrustworthy. In addition, those with judicial aspirations should know that a good judicial demeanor is an important factor in any evaluation process. Someone is bound to remember that incident at the courthouse when counsel is screaming profanity at or threatening his or her opponent.

Everyday, most lawyers strive to behave with honor, civility, and professionalism, while serving the public, their clients, and the courts. We just need to weed out a few bad apples. They just need to take a page out of Bret Michaels’ book and be a winner by being civil.

Lei Lei Wang Ekvall is the 2010 President of the Orange County Bar Association and a partner of Weiland, Golden, Smiley, Wang Ekvall & Strok, LLP, where she specializes in representing debtors, creditors, and litigants in business reorganizations and workouts.