February 22, 2013 - Oregon State Bar

Lawyers Behaving Badly Get A Dressing Down From Civility Cops - WS...
http://online.wsj.com/article/SB10001424127887323539804578263733...
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From courtroom yelling matches to insulting letters and depositions that turn into fistfights, some
lawyers and judges worry that the adversarial system of justice has gotten a little too adversarial.
To rein in "Rambo" litigators, the politeness patrol is pushing etiquette lessons, and even seeking
to have civility included in attorney oaths.
The well-mannered caution that lawyers who shout, lie and shoot off vulgar emails don't merely
alienate judges and juries. They also slow the wheels of justice and cost clients money.
"Lawyers already have a bad enough reputation," said Stewart Aaron, a litigator and head of
Arnold & Porter LLP's New York office. He performed alongside Judge Sullivan in the revue.
The show—titled "A Civility Seder" and put together by the New York Inn of Court, a legal group
that promotes collegiality and ethical behavior—might be the most colorful example of the
manners movement. But it pales beside the R-rated antics of the attorneys whose behavior
inspired it.
Take, for instance, lawyer Marvin Gerstein of Illinois, who has been disciplined three times for his
profane epistolary style, according to the Attorney Registration & Disciplinary Commission of the
Illinois Supreme Court.
Over the years, Mr. Gerstein has sent letters to legal
adversaries calling them, variously, a "fool," "idiot,"
"slimeball," and other names unfit for publication. He
has also suggested opponents have their heads inserted
so far into an unpleasant place that they "think it's a
rose garden," language that an expert witness for Mr.
Gerstein said served a business purpose by vividly
demonstrating the point.
Claudio Papapietro for The Wall Street Journal
Ain't Misbehavin'? Attorney Peter Dizozza, right,
accompanies a song about civility and ethical
behavior.
The disciplinary commission rejected that argument,
although a dissenting member argued that his conduct
was protected by the First Amendment.
"If you cross the line with me, you get both barrels,"
said an unrepentant Mr. Gerstein. He has since dialed his language back to avoid further
sanctions, he said, but "it's none of their business what goes on between two attorneys."
Jaw-droppingly outrageous conduct is rare, even the most ardent defenders of decorum agree.
More common are small-bore disputes: lawyers whose sniping, in person and on paper, can spiral
out of control.
"When I'm upset, I can feel the testosterone rising, and I can literally feel my judgment declining,"
said David Casselman, a senior partner at Wasserman, Comden, Casselman, & Esensten LLP in
Tarzana, Calif., and a co-chair of the American Board of Trial Advocates' committee on
professionalism, ethics and civility. "It's so easy to slide into tit-for-tat mode."
Last month Indiana's Supreme Court chastised lawyers on both sides of a $1.75 million medical
negligence lawsuit for making excessive objections and for "the unnecessary sparring and outright
contemptuous conduct of each attorney directed toward the other."
"A jury trial is not a free-for-all," Justice Steven H. David wrote.
Whether the problem is worse now is hard to quantify. Professional codes instruct lawyers to be