Professionalism and Civility
The Bencher—May/June 2019
By Brian McFadden-DiNicola, Esquire
As a family law practitioner, I am very frequently advised of the personal transgressions of people who were, very recently, very personally involved. These personal transgressions can range from perceived financial misdeeds to proven adulterous liaisons. The hurt stemming from these transgressions is clear and palpable. The need for some proverbial “pound of flesh” is similarly clear and palpable. Some of these clients try to use us as the tool to obtain that pound. This is so frequent that at a recent meeting of my local bar association, one of the presiding judges cited attorneys taking on the persona of their clients as one of the top mistakes lawyers make.
Our professionalism and civility requires that we deny our client’s attempts as often as possible and, when we have given in to the temptation, we should apologize for our digression.
Our clients, hurt and aggrieved as they are, can tempt us to treat our adversaries, and, more specifically, their clients, in an uncivil manner, subjecting them to belittlement or commentary that does not befit our offices. For example, the cuckolded husband calls his future ex-wife various colorful names in my office and demeans significant aspects of her life, in not-so-subtle attempts to unnecessarily win me over to his side of the arguments. I say unnecessarily because we have been hired to be on “his side of the arguments,” irrespective of the colorful elements. Our job is not to then blindly use the personal to impact the professional, but to use the personal where it impacts the professional and to resort to what the law is, not what the personal is.
I have, in family law practice, seen far too many times attorneys become the tools their clients are using to extract some form of revenge on their spouse. This can range from needless commentary in the hallway intended to be overheard to unproven, unsubstantiated allegations asserted as if the truth in front of judges. It can similarly be unfriendly, unprofessional conduct purposefully aimed at opposing counsel, as if the litigant’s disagreements have become the attorney’s personal disagreements. The point of these antics may be to pressure a litigant through fear of embarrassment in court, to improperly sway a judge through false narratives, or to put on a show for clients to somehow prove to them that we are on their side.
Our job, as advocates, is not to present false narratives but to present truthful narratives in the light most favorable to our client. Our job, as advocates, is to present that truthful narrative in a way that it is going to be most receptively received. If the narrative is shrouded in the more colorful elements, tainted with the personal invective our clients may have for their adversary, I am reasonably certain it will not be received in the most receptive fashion. In fact, I have heard time and again from judges I regularly appear in front of that they do not want to hear the histrionics that have little to no impact on the law.
We, as professionals, do not have to resort to what is tantamount to name-calling. We do not have to give in to our clients’ desire to have us as their egos in professional attire. We do not have to be unprofessional or uncivil to our professional adversaries. We do not have to unnecessarily lambast an adverse litigant or subject them to rude or uncivil behavior. Engaging in any of the foregoing does not make our case any better, does not make the presentation of our case any better, does not make it any easier to settle our case, and does not make any settlement terms more favorable to our client.
I believe that many attorneys in our profession are afraid that the display of civility, or the refusal to take on the ego of their client, will cause them to lose clients, lose their client’s faith and trust, or cause them to have a professional identity as a “pushover.” These fears, I believe, are unfounded. I further believe that acting on these fears probably causes the results that attorneys are seeking to avoid by giving into the fears and taking on the roles of the client. I would ask you to think of the most professional example of an attorney you know and then ask yourself if that lawyer’s business is suffering from a lack of clientele. I very seriously doubt it. The same does not hold true for the unprofessional, uncivil attorneys we all know. I know that my typical thought for those attorneys is, “how do they maintain their practice doing what they do,” and I frequently wonder how long they will be able to keep it up without running into trouble or running out of clients. I know which practice I would rather have.
As you consider what professionalism and civility mean, I ask that you also reconsider whether the tactics you have taken have helped or hurt your cases. Honesty to yourself about your own professionalism and civility is a necessary task to ensure we are being the professionals we want to be and the professionals we want our adversaries to be.
Brian McFadden-DiNicola, Esquire, is a partner at Hoagland, Longo, Moran, Dunst & Doukas, LLP, in New Brunswick, New Jersey. He is certified by the Supreme Court of New Jersey as a matrimonial law attorney and is a member of the Aldona E. Appleton Family Law American Inn of Court.