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Caught between Scylla and Charybdis

Two years ago, in  In the Matter of Anonymous Member of the South Carolina Bar, 392 S.C. 328, 709 S.E.2d 633 (2011), an attorney was issued a letter of caution for sending an uncivil email that she alleged was sent in response to numerous uncivil communications she had received from opposing counsel.  Since the ethics compliant that this anonymous attorney filed against opposing counsel “was concluded in a confidential manner”–i.e., a letter of caution–we can assume the that the Office of Disciplinary Counsel found opposing counsel’s communications were uncivil too. Anonymous warned me and my fellow South Carolina attorneys that our Supreme Court and Office of Disciplinary Counsel believed that our professional obligation to be civil would not be excused by the incivility of others.

Experience–long and painful experience–has taught me that the best way to respond to most incivility is silence.  Some folks are just plain rude and telling them they are being rude simply encourages further rudeness.  Responding without pointing out the rudeness is an indication that one isn’t bothered by the rudeness and–again–often merely encourages further rudeness.  Only silence is sufficient to indicate one’s displeasure without escalating the rudeness.  Thus, I have learned to hold my tongue or not reply to an uncivil email.

I thought that strategy was working well until I encountered a pro se litigant whose “legal representative” sent frequent emails accused me of perjury, obstruction of justice, and other evil behaviors.  At first I didn’t respond–merely forwarding them to my client–figuring that he would eventually tire.  Instead he complained that I wasn’t responding to his emails.  I finally responded that I was under no obligation to respond to his emails, especially because I considered them uncivil.  This prompted a one-directional argument by him over the civility of his emails–one-directional because I didn’t respond.  Finally, he responded that my failure to communicate with him was itself a violation of my professional duties.

If I owed him any duties, he might technically be correct.  While my Rule 1.4 duties of communication only extend to my client, my Rule 1.3 duties of diligence require me to “act with reasonable diligence and promptness in representing a client.”  If this legal representative’s communications actually involved issues within the scope of my representation, I might be obligated to respond merely to ensure I was acting “with reasonable diligence and promptness.”

When my older daughter was in middle school we were browsing the snarky t-shirts for sale at Venice Beach, California.  One that she loved and purchased perfectly summed up the teenage mentality:  repeated horizontally along the front of the shirt was the phrase “I will not argue with idiots”.  Every time I’d see her wearing that shirt I’d chuckle.  Like many adolescents and young adults, I spent much of my youth arguing with idiots and have found a calmer middle-age by exhibiting greater restraint.

But, evidently, such restraint may be problematic.  Between the Scylla of engaging the uncivil and the Charybdis of ignoring them, I am caught.  Our Supreme Court and Office of Disciplinary Counsel have told us we need to be civil to the uncivil but have not guided us as to how we are to do so.  I look to them for our salvation.

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