Obligated to be civil to the uncivil

The April 25, 2011 Supreme Court opinion, In the Matter of Anonymous Member of the South Carolina Bar, 392 S.C. 328, 709 S.E.2d 633 (2011), is an indication of just how strongly the Office of Disciplinary Counsel (ODC) and the South Carolina Supreme Court are pushing civility concerns.  It is the second time in two months that a South Carolina attorney has been disciplined for violating the civility oath.

In Anonymous an attorney was issued a private Letter of Caution with a finding of minor misconduct for an “uncivil” email she sent opposing counsel in what the Supreme Court characterized as “an emotional and heated domestic dispute.”  The highlighted portion of that email read:

I have a client who is a drug dealer on . . . Street down town [sic].  He informed me that your daughter, [redacted] was detained for buying cocaine and heroine [sic].  She is, or was, a teenager, right?  This happened at night in a known high crime/drug area, where alos [sic] many shootings take place.  Lucky for her and the two other teens, they weren’t charged.  Does this make you and [redacted] bad parents?  This incident is far worse than the allegations your client is making.  I just thought it was ironic.  You claim that this case is so serious and complicated.  There is nothing more complicated and serious than having a child grow up in a high class white family with parents who are highly educated and financially successful and their child turning out buying drugs from a crack head at night on or near . . . Street.  Think about it.  Am I right?

In this attorney’s defense, she noted that the e-mail was in response to daily obnoxious, condescending, and harassing e-mails, faxes, and hand-delivered letters from the other attorney.  She produced some evidence to support these assertions.  She also showed contrition.  While all but one member of the ODC requested she receive an admonition, the Supreme Court ultimately decided to simply issue a Letter of Caution.  Justice Pleicones would not have imposed any sanction.  The Supreme Court issued this opinion as a warning so “as to provide guidance to the bar.  We caution the bar that henceforth, this type of conduct could result in a public sanction.”

The attorney defending this grievance challenged the civility oath as unconstitutionally vague and overbroad.  The Supreme Court rejected these challenges, finding:

The interests protected by the civility oath are the administration of justice and integrity of the lawyer-client relationship.  The State has an interest in ensuring a system of regulation that prohibits lawyers from attacking each other personally in the manner in which Respondent attacked Attorney Doe.  Such conduct not only compromises the integrity of the judicial process, it also undermines a lawyer’s ability to objectively represent his or her client.  There is no substantial amount of protected free speech penalized by the civility oath in light of the oath’s plainly legitimate sweep of supporting the administration of justice and the lawyer-client relationship.  Thus, we find the civility oath is not unconstitutionally overbroad.

I am curious as to whether Respondent’s attorney, David Dusty Rhoades, considers this a Pyrrhic victory.  Dusty intended this case to be a challenge to the civility oath’s constitutionality.  His client escaped any public discipline but his constitutional challenge failed.

I know the attorneys involved in this dispute and sympathize with Respondent.  It is very hard to be civil to attorneys (or litigants) who are “obnoxious, condescending, and harassing.”  I litigate against attorneys who believe that sarcastic or snarky comments are not violations of the civility oath yet our bar requires counsel on the receiving end of such comments to be civil in return.  Further since attorneys cannot tape record their oral communications without the consent of all parties to the conversation [In the Matter of an Anonymous Member of the South Carolina Bar, 304 S.C. 342, 404 S.E.2d 513 (1991)], it may be hard to prove that one’s incivility was in response to another’s rudeness.

In requiring attorneys to be civil to the uncivil, our Supreme Court may be expecting us to be angels rather than humans.


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