It's official: New York lawyers are expected to behave.
Updated Standards of Civility that were developed by the New York State Bar Association (NYSBA) have been approved by the Judicial Departments of the Appellate Division of the New York State Supreme Court, making them the official guidelines for New York lawyers.
"We know what it is to be civil; we learned it in kindergarten. It's to treat people the way we expect to be treated," Michael Miller, Immediate Past President of the NYSBA, said at a recent session on the new standards at NYSBA's 2020 annual meeting.
But, as most lawyers can tell you, in the heat of a legal dispute, the tone can turn acrid.
The updates say that lawyers should be civil outside the courtroom as well as inside, and address the ways that lawyers should deal with new technology, such as email. The standards say, for example, that lawyers should not demand responses in an unreasonable time, even if email lets everyone communicate in an instant.
The updates were developed by NYSBA's Committee on Attorney Professionalism and the Subcommittee on Civility of the New York State Bar Association. The standards remind attorneys that it's not enough to merely comply with ethical requirements, said Andrew Oringer of Dechert LLP in New York City, chair of the Committee on Attorney Professionalism.
"It's asking, 'What more can you do to be the best and most professional you can be?" he said. The Young Lawyers Section discussed the new civility standards at a recent session during NYSBA's 2020 annual meeting in New York City.
Anne L. LaBarbera of Thomas LaBarbera in New York City, who has been practicing for five years, shared a few experiences that hint at why civility is a hot topic.
LaBarbera, who attended law school in Scotland, said she got used to the understated British way of handling conflict, which tends to involve nothing harsher than "That's not helpful."
Now, as an entertainment lawyer, she occasionally deals with West Coast lawyers who demand responses on unreasonably tight schedules, despite the time difference, or with lawyers who raise their voices or mention their years of experience to try to intimidate her."I usually say, 'What is your legal argument?'" LaBarbera said.
Oringer recalled an opposing lawyer who swore at him. "I said, 'This conversation is over. The only person who talks to me that way is my wife,'" he said. The other lawyer apologized, he said.
The original Standards of Civility focused on behavior during litigation, but Robert Kantowitz, chair of the Subcommittee on Civility, said that it was important to expand the concept beyond the courtroom. "Sometimes outside of court, things get a little bit rough around the edges," said Kantowitz, of Sandburg Creek in Lawrence.
The updated standards, which are part of the Rules of Professional Conduct, are guidelines for attorney behavior, not rules that could lead to penalties if broken. Even so, Oringer said, updating the standards has value because it gets lawyers thinking and talking about the importance of civility.
The updates come 23 years after the standards were first enacted. Miller and Oringer both said that lawyers can lead the way toward a more civil society. "We must serve as models for how society can debate difficult issues with the appropriate respect and courtesy," Miller said.
The Young Lawyers meeting also discussed the new standards and how they intersect with the ethics of using social media. Moderator Mark A. Berman asked participants to consider a few scenarios, such as: How can you respond if a former client complains about you on social media? (The answer: it's okay to deny wrongdoing on the same social media site, but not to go into the details of the case, because that could violate client confidentiality.)
Panelist Terrence L. Tarver, a Garden City personal injury lawyer, said that he'd prefer to pick up the phone and talk to the client, rather than hash out their differences on social media.
Panelist Vivian D. Wesson, an attorney with the insurance brokerage Marsh & McLennan, urged the group to follow "the Grandma rule." "Don't put anything on social media that you don't want your Grandma to see," she said.