Civility in the Practice of Family Law

Originally published in the April 2018 newsletter for the Family Law section of the Maricopa County Bar Association

When I was invited to contribute an article on a topic of current interest, the first thing that came to my mind was the idea of celebrating and encouraging civility among attorneys.

Cue Google search: Quotes about civility. And at the top of the results:

…civility is not a sign of weakness, and sincerity is always subject to proof. Let us never negotiate out of fear, but let us never fear to negotiate. Let both sides explore what problems unite us instead of belaboring those problems which divide us.

John F. Kennedy (January 1961)

As it happens, I may not have been the only one to turn JFK for inspiration in this department. More on that later.

As family law practitioners, we are not dealing with nameless, faceless entities; we’re dealing with individuals who are facing one of the lowest points in their lives. They face the loss of half of their property, the loss of time with their children, the loss of their life as they had come to know it. But some attorneys seem to forget that these are not our children, our homes or our retirement accounts that are at stake. The process is painful for our clients, and this is only exacerbated when then attorneys make a show of rattling their sabers just for the sake of appearances.

It seems, on occasion, that some of our colleagues have forgotten that when the Rules of Professional Conduct were revised a few years ago, the word “zealous” was removed from the Preamble. We are to represent our clients honorably, not zealously. This does not, however, mean that we are just to “roll over” and abandon the pursuit of our client’s objectives to the extent those objectives are supported by the law of our State and the facts of their case. Jayne Reardon is the Executive Director of the Illinois Supreme Court Commission on Professionalism. In 2013, the ABA published an article adapted from one of Ms. Reardon’s works, “Civility as the Core of Professionalism,” Essential Qualities of the Professional Lawyer. This excellent article, which can be found in its entirety at https://www.americanbar.org/publications/blt/2014/09/02_reardon.html, includes the point that civility is not the same as agreement; in fact “the presence of civility does not mean the absence of disagreement.” Perhaps this is misunderstood by attorneys who seem to practice with the attitude that “I cannot be civil to you because I (or my client) do not agree with you (or your client),” when this could not be further from the truth.

In the early years of my practice, I used to worry about more experienced attorneys looking down on me for being less experienced. Fortunately, this didn’t happen nearly as often as I feared, and I learned a valuable lesson in decorum from those seasoned practitioners who treated me as an equal despite my then-high bar number. Now, it seems like many newly admitted attorneys, especially those who practice without having had the benefit of a mentor, feel like they have to come out of the gates swinging just to prove that they’re capable of hanging with the “big dogs.” Some of these attorneys seem to have a different perspective of how a lawyer is “supposed to” behave (particularly a divorce lawyer), and these are people who weren’t even practicing back in the days when we were directed to provide “zealous” advocacy.

Consider the entirety of your career as a family law litigator. How many times has a judge complimented you for how well both counsel worked together in presenting the case? How many times has a judge complimented you for being nasty, difficult or overly aggressive? And what about those efforts to avoid the court room in the first place? Sometimes a shift in tone is all it takes to bring a case from impasse back to the table.

When attorneys join the practice of law in Arizona, we take an Oath of Admission. The Oath includes this: “I will avoid engaging in unprofessional conduct.” Simple, straightforward and more than a little vague. The Oath also says this: “I will at all times faithfully and diligently adhere to the rules of professional responsibility and A Lawyer’s Creed of Professionalism of the State Bar of Arizona.” (State Bar of Arizona, January 2017 version).

We are required to study and adhere to the Rules of Professional Conduct found in Rule 42 of the Rules of the Supreme Court of Arizona, but what about the Lawyer’s Creed? How often have you re-read this statement? Hint: you can find the full text on the State Bar’s website, under Admissions.

I won’t reproduce the entire Creed here, but the section entitled “With respect to opposing parties and their counsel” reads as a checklist for conducting oneself in a way that is not just professional, but is civil.

1. I will be courteous and civil, both in oral and in written communication;
2. I will not knowingly make statements of fact or of law that are untrue;
3. In litigation proceedings, I will agree to reasonable requests for extensions of time or for waiver of procedural formalities when the substantive interests of my client will not be adversely affected;
4. I will endeavor to consult with opposing counsel before scheduling depositions and meetings and before rescheduling hearings, and I will cooperate with opposing counsel when scheduling changes are requested;
5. I will not utilize litigation or any other course of conduct to harass the opposing party;
6. I will not engage in excessive and abusive discovery, and I will advise my client to comply with all reasonable discovery requests;
7. I will not threaten to seek sanctions against any party or lawyer unless I believe that they have a reasonable basis in fact and law;
8. I will not delay resolution of a matter, unless delay is incidental to an action reasonably necessary to ensure the fair and efficient resolution of that matter;
9. In depositions and other proceedings, and in negotiations, I will conduct myself with dignity, avoid making groundless objections and not be rude or disrespectful;
10. I will not serve motions and pleadings on the other party or the party’s counsel at such a time or in such a manner as will unfairly limit the other party’s opportunity to respond;
11. In business transactions I will not quarrel over matters of form or style but will concentrate on matters of substance and content;
12. I will identify clearly, for other counsel or parties, all changes that I have made in documents submitted to me for review.

(State Bar of Arizona, January 2017 version)

A Lawyer’s Creed of Professionalism of the State Bar of Arizona also contains a section entitled “With respect to my client.” Item 5 of this section states: “I will advise my client that civility and courtesy are not to be equated with weakness.” And thus President Kennedy left his mark on the concept of civility among attorneys in Arizona.

As a family law attorney, I accept that my client might hate yours with a passion in this moment, but that doesn’t make you my enemy. In the traditional litigation system, opposing counsel are adversaries, but this doesn’t require (or even invite) rudeness, inflexibility or disrespectful conduct. Instead of coming across as assertive and protecting your client’s interests, it just comes across as bullying. I don’t care what your bar number is – if you are courteous, professional and have the ability to separate your “role” from your client’s life, you will stand as a role model of civility.

MONICA DONALDSON STEWART is the managing attorney for the law firm of Donaldson Stewart P.C. in Chandler, Arizona where she practices in all aspects of family law, including collaborative divorce and family law mediation. She has also served as a Judge Pro Tem for the Maricopa County Superior Court, conducting settlement conferences in family law matters, since 2007.