Maybe lawyers need to be forced to be nice?

In my mind, the New York attorney is a quick-witted, tough operator. The kind who gets the job done and thinks of the consequences later. The tongue-lashing given to opponents will be as sharp as the suit. 

It’s a caricature, of course, and importantly it’s also wildly off the mark, for New York is now well established as a bastion of good manners, where respect trumps rudeness. It’s the state where niceness rules - or at least there are rules about being nice.

Last week the New York State Bar Association announced the upgrade of its 22-year-old Standards of Civility. These are a detailed blueprint for how lawyers should treat each other in contentious and non-contentious work.

The language of the revised code reads like something out of Downton Abbey. One updated standard sets outs that lawyers should ‘focus on the importance of politeness and decorum’. The existing code already noted that lawyers can ‘disagree without being disagreeable’, and that effective representation ‘does not require antagonistic or acrimonious behavior’ (note that while Americans may be well mannered, alas their spelling remains wrong).

The new standards also state that lawyers should not impose deadlines ‘more onerous than necessary’ on litigation opponents. 

Personally, I’m a big fan. The days of ball-breaking lawyers trying to bully parties into submission should be a thing of the past. There is room for effective representation without resorting to aggression. The modern world has given us much greater and more immediate means of communication, but this has added to the temptation to fire off an angry email. At least with a letter you were forced into a moment of contemplation before spewing venom at your opponent.

England and Wales has its own system for enhancing cooperation. The courts frequently ask for civility among lawyers and call out those who have indulged in mud-slinging. The SRA publishes risk resources on how to balance duties in litigation, and in particular how lawyers are not ‘hired guns’ whose duty is only to the client. The revised code of conduct, in force from November, includes the principles of proper standard of work and complying with the duty to the court to act independently in the interests of justice.

Being civil is probably covered by these principles, but it’s not explicit. The approach of the NYSBA is refreshing, and perhaps it’s time we drew up some standards of civility of our own. Decency and decorum should be second nature across the jurisdictions.