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Bar News - December 18, 2009

Presidentís Perspective: A Civil Choice


James J. Tenn, Jr.
Most attorneys will recall the response of Supreme Court Justice Potter Stewart when he was asked to define pornography. He responded memorably: "I canít define it, but I know it when I see it." That response seems most appropriate when confronting another nebulous term: civility. In the practice of law, how does an attorney define civility? This is an issue with which our Bar Association and other state bar associations across the country have been grappling.

In 2001, the New Hampshire Bar Association Board of Governors adopted the New Hampshire Lawyer Professional Creed. This seven-part Creed provides:

First, a New Hampshire lawyer strives to improve the profession and promote the democratic rule of law;

Second, a New Hampshire lawyer is competent in the area of his or her own practice, but is also sufficiently knowledgeable in other areas of practice to be able to assist clients in obtaining appropriate representation in those areas;

Third, a New Hampshire lawyer is civil. Civility and self-discipline prevent lawsuits from turning into combat and keep organized society from falling apart;

Fourth, a New Hampshire lawyer is reliable, responsible and committed;

Fifth, a New Hampshire lawyer is honest and forthright. Lack of candor impedes justice and degrades the profession, and lying has no place in the practice of law;

Sixth, a New Hampshire lawyer exercises independent critical judgment, and is willing to accept responsibility for his or her actions, decisions or counsel;

Seventh, a New Hampshire lawyer has a social conscience and is dedicated to serve the public and society. A New Hampshire lawyer is willing to take up an unpopular cause or to engage in pro bono work, even when it is unpleasant or costly.
This Creed reflects an important part of our legal practice in New Hampshire. In 1999 the Board of Governors also adopted the New Hampshire Bar Association Litigation Guidelines. The Creed and the Guidelines serve as aspirational goals for Bar members. These efforts are intended to foster a higher level of civility and professionalism, exceeding the minimum requirements mandated by the Rules of Professional Conduct. They are not meant to supplant any rules that govern attorney conduct. They serve as a reminder to attorneys that uncivil or unprofessional conduct not only is a disservice to the individual involved, but that it demeans the profession as a whole and hampers the administration of justice. Both the Creed and the Guidelines are available on the Barís website at Legal Links.

Not surprisingly, a number of courts, business journals and law reviews have published reports and articles on the subject of civility. Commentators suggest that civility has declined because attorneys increasingly view their practices as businesses. With the advancement of technology, attorneys are bombarded by faxes, text messages, e-mails and hence the demand for immediate action. Attorneys in such a business environment can be frazzled and brittle with each other, often firing off quick responses in lieu of more thoughtful communication.

When writing articles discussing civility, commentators generally emphasize that the best incentive to fostering civility is to stress that it will bring about greater efficiency in the practice of law. That is, if civility means lessening unnecessary conflict, promoting meaningful negotiated settlements, and striving to arrive at the merits of the case, then civility is in the best interest of the attorney, the client, and the administration of justice. Civility among attorneys promotes greater efficiency in the administration of the legal system. This is an admirable and necessary goal.

According to the American Bar Association, over 150 organizations in 46 states have adopted some kind of professional civility guidelines. Like New Hampshire, other state bar associations adopting similar guidelines have published them and encouraged their members to embrace them. Most have adopted guidelines that are aspirational Ė suggestions made to individual attorneys, encouraging them to adopt the guidelines as personal standards, both in spirit and in letter. Included with these voluntary obligations are the virtues of civility, professional integrity, personal dignity, candor, diligence, respect, courtesy and cooperation.

It also has been suggested that law schools would be the best venue in which civility and its role in the practice of law may be structured and discussed. While law schools may be an appropriate starting point, they should not be the end point. Prior to admission to the NH Bar, applicants must not only pass a rigorous examination, but each applicant must also pass a character evaluation. It seems obvious that if character is important in admission to the Bar, then character must remain important throughout membership in the Bar. Civility is integral to character and something that Bar membership should cultivate, demand, and reward. As we look forward to the New Year and a time of new resolutions, it is appropriate to focus on civility. When it comes to civility, we simply need to remember to do the right thing.
Civility is a personal choice.

James J. Tenn, Jr., is the 2009-2010 NHBA President and is a founding member of Tenn And Tenn, P.A., in Manchester.

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