Growing up in the 1950s and 1960s, my idea of what lawyers did and how they did it came from watching episodes of Perry Mason. Raymond Burr always seemed to solve his client’s thorniest problems with persistence and integrity. Since then, an array of television series, from LA Law to The Good Wife, have portrayed lawyers using unsavory tactics as part of a philosophy that “the end justifies the means” or “win at all costs.”
That is just one way in which lawyering appears to have declined in the eyes of the public and within the profession itself.
When I graduated from law school in 1981, the practice of law was very different. Our telephone messages arrived as small pink slips with handwritten numbers, document production meant sorting through bankers’ boxes of paper, and the introduction of the “Post-it” was revolutionary in helping flag responsive documents. In the early 1980s, it seemed like practicing law was more formal, and the majority of practitioners were civil and professional in dealing with colleagues, clients and adversaries alike. There have always been rule-breakers and overly aggressive lawyers engaging in Rambo-style tactics. However, the ubiquity of technology and new forms of media has created additional ways in which attorneys can bully and intimidate others or, at a minimum, has called more attention to this corrosive behavior.
Bullying by opposing counsel may take the form of name-calling, filing frivolous motions, misrepresenting authority and outright lying. In meeting our obligations to our clients and in dealing with these misguided adversaries, we can turn to the Pennsylvania Rules of Professional Conduct, the Code of Civility and the applicable rules of court. Transactional lawyers may also find guidance from the recently updated civility standards in New York, which address “politeness and decorum” based on the circumstances. I hope these principles will inspire Pennsylvania lawyers to adhere to these laudable practices to the extent they are beyond what Pennsylvania currently mandates.
To me, what is particularly distressing is not only the decline in civility during the adversarial process but the extent to which lawyers mistreat their colleagues in the same organization, whether it is a law firm, in-house department, government or nonprofit entity.
In May 2019, the International Bar Association released “Us Too? Bullying and Sexual Harassment in the Legal Profession,” a report on its survey of nearly 7,000 legal professionals from 135 countries. Roughly one-third of men, more than half of women and almost three-quarters of non-binary respondents reported that they had been bullied at work. Forty percent of women and 32 percent of men reported that they observed others being bullied at work. Considering the women respondents, for example, more than half said they never reported these incidents. It is even more alarming that of those who did report bullying at work, less than 3 percent said the workplace response was excellent, compared to the more than 72 percent who reported the workplace response was either negligible or insufficient.
The effects of unrestrained bullying on turnover and the bottom line are significant. More than half of bullied respondents resign or consider it. Bullying and harassment harms targets and observers alike—who often fear the aggressor will turn on them. This results in physical and mental illness, anxiety, depression, sleep deprivation and burnout.
There is a cultural change that, in my view, has contributed to the decline in civility and the apparent increase in bullying in the legal profession. Neither legal employers nor legal professionals invest in one another as much as they did decades ago. Due to pressures to increase profits, less time is devoted to training and mentoring because neither generates income. And as legal employers invest less in their team members, individuals leave jobs more often. This lack of commitment by both employers and employees contributes to the lack of camaraderie needed to foster collegiality and mutual respect.
To counter diminishing decorum and restore respect by and towards fellow lawyers, we need to consistently model good behavior and enforce a no-tolerance policy toward bullying in the profession. Ideally, we can accomplish this by focusing less on maximizing profits and more on training newcomers and ferreting out bad actors from our midst.
Reprinted with permission from the June 2020 issue of Super Lawyers Magazine Pennsylvania and Delaware 2020 © 2020 Super Lawyers®, part of Thomson Reuters. Further duplication without permission is prohibited. All rights reserved.