Civility Toward Opposing Counsel

Civility Toward Opposing Counsel

The clauses of Rule 3.4 studied so far protect evidence, witnesses, discovery, and the jury's view of the case; none governs how a lawyer treats the lawyer on the other side. Model Rule 3.4 contains no harassment clause, though some states have added one. Virginia's Rule 3.4(j) forbids a lawyer to assert a position, conduct a defense, delay a trial, or take "other action on behalf of the client" when the lawyer knows, or it is obvious, that the action "would serve merely to harass or maliciously injure another."¹ The provision derives from former DR 7-102(A)(1), and the Virginia Supreme Court applied it to a lawyer's letters in Barrett v. Virginia State Bar.² Because Barrett rests on a state rule with no Model Rule 3.4 counterpart, what carries over to the exam is the ethic behind the rule, not a clause to memorize.

Barrett wrote to Karnes, who represented Rhudy in a suit between a wife and her husband, and his letters rebuked her for taking the case. One passage reads: "Words cannot express the disappointment I feel towards you, one who ostensibly claims Christ as her savior, in that you would represent one Christian in their suit against another, let alone a wife verses [sic] a husband." It closes with "Shame on you."³ The Board found a violation on two grounds: the correspondence, and motions Barrett had filed without the notice a prior court order required. The court affirmed on the letters and rejected the second ground for insufficient evidence.⁴

Barrett defended on the theory that Rule 3.4(j) addresses actions taken in litigation, not words used. The court disagreed. A preponderance of the authorities interpreting the model rule behind former DR 7-102(A)(1) hold that harassing ad hominem attacks on opposing counsel are prohibited, and the court found that Barrett's comments to Karnes were "other action" meant to harass her in her capacity as Rhudy's attorney.⁵

The court's reason fits in one sentence: "Haranguing and offensive tactics by lawyers interfere with the orderly administration of justice and have no proper place in our legal system."⁶ The mechanism is easy to trace. A lawyer is engaged to resolve the clients' quarrel on the merits. A personal attack on the other side's lawyer opens a second dispute that has nothing to do with the merits, and the recipient must answer an insult instead of an issue. Every exchange spent on personalities is an exchange not spent on the legal questions the tribunal must decide. The word merely keeps the prohibition narrow: a hard-edged position that advances the client's case has a purpose beyond harm, and the rule does not reach it.

When a bar-exam stem sets a blunt letter beside the Barrett facts, ask whether the letter is about the case or about the person.

The difference lies in what the words address. The passage the court quoted argues no point of law; it condemns the lawyer for taking the engagement. The demand letter attacks the opponent's position and leaves the opponent alone. Bluntness is therefore not the test. Criticism of a position, a filing, or a missed deadline is advocacy, and the same energy redirected at the opposing lawyer's faith or character is what Virginia sanctioned. The court's handling of the Board's second ground confirms that discipline rests on proof: it found insufficient evidence that Barrett had violated the order requiring notice before filing motions, and it affirmed only on the letters.⁸

The same concern surfaces when the insults come before a jury, but the question then becomes the reliability of the verdict. In Fineman v. Armstrong World Industries, Inc., the Third Circuit restated its long-standing rule that vituperative references to opposing counsel will not be tolerated.⁹ The rule comes from Draper, where plaintiff's counsel repeatedly called defense counsel and the defendants a "gang," described defense counsel as "part of the same conspiracy," and implied that the defense had withheld documents: "every time we get to a crucial spot, things disappear."¹⁰ Those assertions, joined with other improprieties, made it reasonably probable that the verdict was influenced, and a curative instruction given a day after the offending summation did not change that conclusion.¹¹ In Fineman, the court held that the district court's assessment that plaintiffs' trial counsel had exceeded the bounds set in Draper fell within its sound discretion.¹²

Barrett and Fineman ask different questions. Barrett asks whether the lawyer's own conduct broke a rule of professional conduct, and the answer does not depend on how any proceeding ended. Fineman asks whether improper remarks made it "reasonably probable" that the verdict was influenced. That showing usually rests on a combination of improprieties, because an isolated improper remark will not support a new trial.¹³ Insults aimed at opposing counsel can therefore be sanctionable without being enough to undo a verdict, and they can undo a verdict when they join other misconduct.

Other rules express the same ethic, and each turns on purpose. Model Rule 4.4(a) forbids a lawyer, in representing a client, to use means that have no substantial purpose other than to embarrass, delay, or burden a third person. The federal discovery certification, Rule 26(g), requires that discovery be initiated and answered responsibly, for a proper purpose (not to harass, unnecessarily delay, or impose needless expense), and in proportion to what is at issue.¹⁴ Virginia's rule asks whether the action serves merely to harass or injure. Each asks whether the conduct has any legitimate function. A lawyer who attacks an argument, a pleading, or the evidence stays outside all three; a lawyer whose conduct has nothing to show for itself beyond the discomfort it causes does not. Under the Model Rules alone, a hostile letter fits no Rule 3.4 clause, so an exam answer should ask whether the conduct had any purpose besides burdening the other side.

Some obstructive conduct sits in a gray area where discipline is hard to invoke, and civility standards have grown up to fill it. Deposition obstruction is doubtful as "unlawful" conduct under Rule 3.4(a), and because such charges invite tit-for-tat accusations, parties often cannot press them. A growing number of jurisdictions have responded with voluntary civility standards; the District of Columbia's provides that lawyers "will not engage in any conduct during a deposition that would not be appropriate if a judge were present."¹⁵ Courts have their own tools as well. A Delaware court ordered an out-of-state lawyer to show cause why his "extraordinarily rude, uncivil, . . . vulgar, . . . unprofessional, . . . outrageous and unacceptable" behavior should not bar any future pro hac vice appearance in a Delaware proceeding.¹⁶

None of this conflicts with zealous advocacy. Nothing inherent in the adversary system precludes cooperation between the parties and their lawyers to achieve orderly and cost-effective discovery, so a lawyer can press every legitimate point and still treat the person across the table with courtesy.¹⁷