Obligated to be civil to the uncivil

Posted Monday, April 25th, 2011 by Gregory Forman
Filed under Of Interest to Family Law Attorneys, Rules of Professional (Lawyer) Conduct, South Carolina Appellate Decisions, South Carolina Specific

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.


8 thoughts on Obligated to be civil to the uncivil

  1. While I always knew it was acceptable I am nonetheless pleased to see our illustrious Supreme Court respect and rule on a matter brought by one who was not an actual party to the particular event in question.
    Quoting this ruling, “Attorney Doe’s spouse, also an attorney, filed the complaint in this matter after Attorney Doe disclosed the “Drug Dealer” e-mail to him.”

  2. Laughter is the best medicine…. If the spouse of lawyer Doe did not mention in his complaint that the “Drug Dealer” email constituted fighting words, I would have to regard him as most intelligent man indeed.

    Quoting the ruling: “While no one argued it in this case, it could be argued that the language used by Respondent in the “Drug Dealer” e-mail constituted fighting words.”

    Such an argument would have been tantamount to saying that both women were unprofessionally operating out of reproductive urges, the one over insult about not having produced a child and the other over insult to her parenting skill.

    I always love the humor in married men avoiding the bullet in arguments between women. Salute to lawyer dude and P. on their survival skills.

  3. Dusty Rhoades says:

    Here is what the Court arbitrarily left out of the decision. They failed to decide the raised and extensively discussed (in brief and oral argument) the failure to disclose exculpatory information from the other attorney’s complaint that arose out of the same facts. I’m all but certain the other attorney signed a boilerplate agreeing she was uncivil, relevant to appropriateness of Leigh’s comment. The Court dodged the issue completely about setting a standard. There is alot more that the Court chose to disregard, I believe, to find a way to justify a decision to try to make the case end. I plan to take it much further….Dusty

  4. Leigh Hunter says:

    I am the Respondent in this case. This case was the catalyst in my decision to go into criminal defense so as not to be forced to communicate with the family court bar- not all of the bar- who recieves more civility complaints than any county in the state. The needless bullying, condescension, harrassment that I recieved on simply one case was unbearable. Once I was told that because I was not married and did not have kids and, therefore, did not know how to properly advise my client stung becuase I cannot have kids (endometriosis.) So, Attorneys Doe’s comments to me, in addition to the many other comments, were hurtful and unnecesssary. These were private communications between two attorneys and after ten months of harrassment, it was time to take up for myself when that comment was made. I hope that all of you have a better understanding of how this came about. Civility and professionalism and honesty should be the cornerstone of our values. I am personally glad that this decision has made this point to all of us.
    Leigh Hunter

  5. When the new attorney’s oath was mandated by Rule 402(k), SCACR, my first reaction was that it was positive, progressive, and desireable. After thinking about it, I thought that it may be vague, abiguous, and impractical with the potential to be a dangerous weapon in the hands of the wrong people. As a result, I made a copy in Word Perfect and then went through it word by word and phrase by phrase, adding footnotes with my questions and comments. Greg has asked that I share several of those with you.

    “I will maintain the respect and courtest due to courts of justice, judicial officers, and those who assist them.” My comment was that “The words ‘and courtesy’ and ‘and those who assist them’ were added after the 1968 version. What respect and courtesy are due to those who are rude, arrogant, and incompetent?”

    “To opposing parties and their counsel, I pledge fairness, integrity, and civility, not only in court, but also in all written and oral communciations.” My footnote to “civility” states “If Jesus Christ, who preached the ultimate civility of turning the other cheek (Luke 6:29), threw the money changers out of the temple (Matthew 21:12), are lawyers permitted to express anger at injustice and those who perpetrate it?”

    In another footnote, I asked “In addition to punishing for violation of ethical rules, will the Supreme Court of South Carolina punish lawyer for violation of their oath of office?” In the Matter of an Anonymous Member of the South Carolina Bar filed April 25, 2011, answers that question affirmatively.

    After “I will maintain the dignity of the legal system,” I commented “This presupposes the dignity of the legal system. When I see unqualified judges and incompetent lawyers, I do not recognize much dignity to preserve.”

    I hope that this post does not undermine “the dignity of the legal system” and cause me a problem with South Carolina Commission on Lawyer Conduct. I need to quit reading Greg’s blog. He is an officious intermeddler and troublemaker who is going to get me in trouble.

    If you want a copy of my footnoted copy of the Attorney’s Oath and you are not a justice of the Supreme Court, an employee of the South Carolina Commission on Lawyer Conduct, or a member of the Republican party, send me at e-mail request at thomasmcdow@mcdowlaw.com.

    1. “Officious Intermeddler?”


      Them’s sounds like “fighting words” to me, Mr. McDow…

  6. Here’s an interesting thought–as a matter of Constitutional Law, given that respondent raised a number of Federal Constitutional arguments in his/her response, is this truly the end of the line?

    The opinion held that as a matter of law the disciplinary rule in question comports with the applicable rules with regard to vagueness & overbreadth, both facially and as applied. When combined with the Court’s comments in dicta regarding “fighting words” and free expression, it would seem to me that the Court’s manner of deciding the case has at least left the door open for an appeal to the U.S. Supreme Court by respondent.

    While Federal Courts will not adjudicate state court decisions that rest on “adequate & independent state law grounds,” it seems that this opinion necessarily relies on substantive determinations as to the nuances of the First Amendment & substantive Due Process, which are the province of federal law.

    While I’m no Con Law scholar, would it not be prudent for respondent to consider a Petition for Certiorari to the U.S. Supreme Court? Such a petition is admittedly unlikely to be granted, but even if cert is denied, wouldn’t this at least serve to encourage the SC Supreme Court to be mindful of the federal constitutional guarantees afforded to attorneys as they relate to future disciplinary cases?

    Any Conlaw scholars wish to weigh in?

    Just spitballin’…

  7. MJ Goodwin says:

    I am privy to a case going on right now that deals with comments and statements a local attorney made in a blog. My understanding is he was not a party to the action nor representing anyone in the action. And now he has to go defend himself on Wednesday.

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