April/May 1999

Classifieds Letters Display Ads Archives Article Index Apr '99 Issue Latest Issue MSBA Home Page	Beyond Zealous Advocacy: Harassment and Its Remedies By R. Terri Mandel When does the traditionally lauded adversarial god of "vigorous advocacy" become simply a cover for lack of professionalism and/or a tool for workplace harassment?
	Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridge the freedom of speech, or of the press; or of the right of the people peaceably to assemble, and to petition the Government for a redress of grievances. First Amendment to the United States Constitution (1791) First Amendment rights have long offered Minnesota attorneys freedoms from possible admonition or sanctions for speaking their minds in sometimes freewheeling ways. The courts' unwillingness to limit First Amendment rights protects even those who have criticized court rulings following litigation, or criticized judicial conduct or integrity.1 Courts are also very clear, however, that when an attorney is in court and engaged in legal business, "appropriate rules of evidence, decorum, and professional conduct [governing attorney speech] do not offend the [F]irst [A]mendment."2 Indeed, the United States Supreme Court has limited freedom of speech in the workplace: "where the government does not target conduct on the basis of its expressive content, acts are not shielded from regulation merely because they express a discriminatory idea or philosophy."3 As Edward Cleary, director of Minnesota's Office of Lawyers' Professional Responsibility (OLPR) points out, since the United States Supreme Court first dealt with workplace harassment in the 1986 Meritor Savings Bank case, disciplinary actions involving workplace collisions between speech that arguably is protected by the First Amendment and harassment have been numerous and national in the legal field.4 Similarly, there is no question that lawyers' conduct is subject to regulation under the laws proscribing harassment and discrimination and under the Rules of Professional Conduct. But the OLPR has also recently made clear that it will not punish certain workplace indiscretions, even if those indiscretions are arguably actionable.5 In the actual practice of law, therefore, attorneys are relatively often confronted with a clash of values: when does the traditionally lauded adversarial god of "vigorous advocacy" become simply a cover for lack of professionalism and/or a tool for workplace harassment? Perhaps compounding this contemporary conundrum is that for lawyers, "the workplace might be a law office, a conference room, or a courtroom."6 Limits to Vigorous Advocacy In his long-ago defense of Queen Caroline against King George IV's adultery allegations, Lord Brougham coined the phrase now largely associated with the traditional view of the attorney's role as a zealous advocate: To save that client by all means and expedients, and at all hazards and costs to other persons, and, among them, to himself [the lawyer], is his first and only duty; and in performing this duty he must not regard the alarm, the torments, the destruction which he may bring upon others.7 A Cleveland lawyer, quoted in the New York Times in August 1988, gave contemporary expression to the same sentiment: "Litigation is war. The lawyer is a gladiator and the object is to wipe out the other side." This style of lawyering, employed by those that some have termed "Rambo litigators" or "hired guns," employs intimidation as a primary method of controlling and dominating others in an effort to win.8 Perhaps it is inevitable that the style of lawyering that prefers intimidation, control, and domination at times manifests itself in hostile male versus female professional relationships, and in oppressive or humiliating conduct. Also, perhaps inevitably, that clash has the potential to engender claims of discrimination and/or harassment. Courts are increasingly monitoring attorney conduct not only in the confines of the courtroom but also during depositions. The following cases in other jurisdictions illustrate instances where attorneys' conduct, while acting as "officers of the court," was found to be unethical and public reprimands or suspension issued: While representing a plaintiff at a deposition in a personal injury action, the attorney verbally abused opposing counsel, directing vulgar, obscene and sexist epithets toward her anatomy and gender. 9 An attorney referred to his opposing counsel "in vulgar terms and, in a manner which, regardless of whether it was intentional or negligent, was communicated to a third party -- the presiding judge."10 A lawyer was suspended from practice following a series of ethical complaints about his unacceptable conduct in and out of court toward lawyers, bystanders and witnesses. The attorney accused the judge of colluding with the prosecution, racism, conducting a kangaroo court, conducting a "cockamamie charade of witnesses," and being "caught up in his own little dream world." The lawyer also repeatedly hurled disrespectful remarks toward his female opposing counsel. The court expressly discounted the lawyer's claim that his conduct was the result of zealously protecting his client's cause and the emotional undercurrent of the litigation.11 In mandating a one-year suspension of an attorney who obstructed his client's deposition, an Illinois court angrily countered the lawyer's contention that his conduct was consistent with the ordinary and routine deposition practice of experienced lawyers within the district at the time. The court stated, "… even if [attorney's] assessment of the general level of deposition practice were accurate, which it is not, this would not excuse … unprofessional conduct."12 In invoking a protective discovery order and sanctions against a "seasoned" plaintiff's counsel, an Iowa district court held that "Rambo litigation" in deposition practice runs counter to the fundamental goals of fairness and efficiency enumerated in the Federal Rules: "[Rambo litigation], which may prove effective out of the presence of the court, and may be impressive to clients as well as ego-gratifying to those who practice it, will not be tolerated … ." The court also voiced its disfavor of opposing counsel for "responding in kind" to the abrasive and offensive tactics of the sanctioned attorney.13 Merely because depositions take place absent a judge, lawyers cannot forget their responsibilities as officers of the court. As a lawyer in Tennessee found recently, even in situations where the court is not expressly called upon to address an attorney's conduct during depositions, a thorough reviewing court may unavoidably encounter impermissible conduct as part of its normal study of the record, which may lead in turn to sanctions.14	R. Terri Mandel is a shareholder with the law firm of Messerli & Kramer, P.A. in Minneapolis. A 1983 graduate of the Hamline University School of Law and former law clerk to Chief Justice Doublas K. Amdahl, she concentrates her practice in commercial, environmental and tort litigation. The author thanks Bo Wyatt Willsey, a law clerk at Messerli & Kramer, P.A., for his assistance in preparing this article.
"Where should the line be drawn between free speech, vigorous advocacy, harassing conduct, and violation of professionalism and decorum?"	Drawing the Line in Minnesota Whether the cause is vigorous advocacy or "Rambo litigation," today, even in "nice" Minnesota, there is rampant incivility within the legal world, creating situations replete with issues of harassment. Roughly ten percent of all annual complaints to the Office of Lawyers Professional Responsibility (OLPR) result from attorney to attorney uncivil, unprofessional behavior, which the OLPR attributes largely to inability to adjust to diversity: [I]ncreasing acts of incivility are often an intolerant reaction to the rising tides of diversity in the legal profession and in our nation. Sometimes a lawyer just gets angry like anyone else and loses his head. More often, this type of behavior stems from a long-simmering inability to tolerate changes in the world around us, particularly those changes in the professional world.15 Two provisions of the Rules of Professional Conduct (MRPC) apply to offensive behavior in the professional context, MRPC sections 4.4 and 8.4(g). MRPC 4.4 provides that: In representing a client, a lawyer shall not use means that have no substantial purpose other than to embarrass, delay, or burden a third person or use methods of obtaining evidence that violate the legal rights of such a person. MRPC 8.4(g) goes a step beyond any provision found in the ABA Model Rules and identifies harassment based on one's identity in connection with professional activities: It is professional misconduct for a lawyer to . . . "harass a person on the basis of sex, race, age, creed, religion, color, national origin, disability, sexual preference or marital status in connection with a lawyer's professional activities. Since the enactment of MRPC 8.4(g) in 1990, this rule has been the basis for finding misconduct only seven times -- six resulting in private admonitions and only one involving public reprimand.16 The case involving public reprimand involved complaints made by a female Minneapolis attorney after a male opposing counsel uttered gender-based epithets in the courtroom at pretrial, including calling her a "f___ing c__t" and telling her to "shut up" in the courtroom, in the presence of his partner, opposing counsel, two of her cocounsel, and her client.17 The Supreme Court ultimately determined that the attorney's misconduct warranted public reprimand under both MRPC 4.4 and 8.4(g). Neither the number of abuses nor a pattern of abuse is delineated by MRPC 8.4(g) as a factor to evaluate in imposing discipline. Perhaps that explains why, especially in "isolated incidents," the OLPR prefers pursuing disciplinary action under MRPC 4.4 in lieu of MRPC 8.4(g).18 The OLPR first looks at whether the questionable speech was both targeted at and designed to embarrass the recipient. If not, no action under either available rule will be taken.19 Although the rules are supposedly "vigorously enforced" in Minnesota, even after meeting those two tests, lawyers found in violation of MRPC 4.4 have most often been subjected only to private admonitions.20 Public discipline has been ordered only in patently extreme cases. The following are examples cited by former OLPR Director Johnson of MRPC 4.4 violations that have resulted in private admonitions:
	A young lawyer vented his frustration in responding to plaintiff's deposition scheduling requests by writing "stupid bitch" four times on his correspondence file copy of the scheduling request. The annotated copy was later inadvertently filed with the court as an exhibit to a discovery motion and served on 26 other counsel. The OLPR concluded that while intent to publicize was lacking, the offensive, gender-based comments were inappropriate and could have embarrassed or burdened people within the lawyer's firm, even absent circulation. During trial, a male defense counsel referred to the female prosecutor during voir dire as a "persecutor." That evening defense counsel had to leave his wife's 50th birthday party to return to the courthouse. The judge asked that counsel waive their right to be present when the jury was instructed at the end of the evening's deliberations, but the prosecutor refused. Angry that he would again have to leave his wife's party, the defense lawyer turned to the prosecutor and said, "You bitch." The OLPR rejected his justification that the prosecutor had been acting maliciously and sanctioned defense counsel for embarrassing opposing counsel and burdening the judge. What is to be made of the application of the rules to real-life situations? Based on the relatively few public reprimands issued for alleged violations of MRPC 4.4 or 8.4(g), attorneys should assume that the threshold at which they could expect affirmative action by the Board against opposing or cocounsel is implicitly higher than the text of the rules indicates. Cleary explains the OLPR's rationale as follows: . . . harassment, typically of the gender variety, is often about power and the abuse thereof. Thus, the relationship between the respondent and the complaining party is often crucial, since a lawyer will be held to a much higher standard when dealing with clients or other non-lawyers or when dealing with an attorney employed in a subordinate position. More often than not, when the offensive speech is between opposing lawyers, it is a matter of civility or lack thereof.21 Cleary also points to free speech concerns as a cause for the Board's reticence: Since we are using a "reasonable person" standard in judging the offensiveness of speech or conduct in the workplace, it would seem that we would be able to easily distinguish between offensive speech and harmless comment between attorneys. Unfortunately this leaves a great deal of room for judging the content of speech and its acceptability.22 Thus, if the OLPR views the incident as a "personality dispute" among counsel, it will be exceedingly cautious in recommending any sanction. Although supposedly MRPC 4.4 "can and should be used" when a comment embarrasses another attorney and MRPC 8.4(g) "should be utilized" where more than one incident occurs or is aimed at another based on group identity, these provisions, in actual application, serve as parameters of acceptable behavior, not mandates. Support for that conclusion can be found in the differing ways the Board treats MRPC 8.4(g) and MRPC 8.4(h), which proscribes as unethical conduct the committing of a "discriminatory act, prohibited by federal, state or local statute or ordinance, that reflects adversely on the lawyer's fitness as a lawyer." Rule 8.4(h) incorporates a four-point analysis of: 1) the seriousness of the act; 2) whether the lawyer knew the act was prohibited by statute or ordinance; 3) whether it was part of a pattern of prohibited conduct; 4) whether it was committed in connection with the lawyer's professional activities. Rule 8.4(g) does not mandate evaluation of these four points, but the statements of the OLPR make clear that the same four factors will be applied to alleged violations of subsection (g). Where should the line be drawn between free speech, vigorous advocacy, harassing conduct, and violation of professionalism and decorum? As always, any strict line drawing remains relatively illusive.	"Traditional advocacy, with intimidation as its primary weapon, has been the subject of growing criticism for nurturing morally and socially irresolute and often over-zealous attorneys."
"Merely because depositions take place absent a judge, lawyers cannot forget their responsibilities as officers of the court."	Promoting Tolerance Through Professionalism How then, to alleviate the extraordinary pressures of legal practice and moderate the sometimes hostile interchanges between men and women in the world of legal work? There are tried and true techniques for deflecting and reducing such conflict, which are surely more advisable than resort to ethical practices boards or lawsuits. Jennifer Pierce has identified an alternative method of zealous advocacy that she calls "strategic friendliness." Strategic friendliness is another form of gamesmanship, but rather than bullying or scare tactics, it employs friendliness, politeness, and tact. The ultimate goal is to win a case, gain a settlement, gain strategic advantage for one's client, or just get the brief out the door. A softer approach than intimidation, it may actually be far more effective in manipulating the desired end result.23 Traditional advocacy, with intimidation as its primary weapon, has been the subject of growing criticism for nurturing morally and socially irresolute and often over-zealous attorneys. Critics emphasize that adversarial and hostile legal work environments have led to a loss of professionalism and lack of civility, threatening the system's integrity. Chief Justice Warren Burger believed that lawyers' failure to observe the rules of professional conduct and etiquette were actually undermining conduct that is "essential for effective trial advocacy."24 The lawyer/novelist Scott Turow cautions against adopting a "guerrilla warfare mentality" in cross-examination, and suggests that being nice, polite, welcoming, playing dumb, or behaving courteously are all ways for a trial lawyer to gain points with a jury.25 Those strategically friendly tactics can be used to gain advantage in attorneys' interactions with one another. Similarly, humor can reduce tensions and is far better than reacting to intimidation with further intimidation. Much has been written about how stressful the practice of law has become. Perhaps one of the most effective methods of handling stress is to avoid creating unnecessarily stressful interactions among professionals. "Strategic friendliness" is one method of doing so. Jennifer Pierce recommends that men and women utilize an "ethic of care" which she describes as "considering the needs of all the parties involved as well as their relationships and attempting to find a solution that will satisfy everyone, rather than selecting a winner and a loser. She describes an interview with a young woman associate at a private law firm who has found an alternative to overly aggressive gamesmanship, emphasizing mutual trust and respect rather than suspicion and combativeness: I don't give in to being aggressive, rude, and snotty to get the best results. You don't have to stand up to opposing counsel by screaming on the phone, for example. You can always hang up . . . they can't win by playing hardball all the time. Being a feminine woman and being reasonable, that's how I see myself.26 Another attorney interviewed by Pierce is determined to practice law in a less adversarial way, one influenced by his study of Eastern philosophy and aikido. When asked if he could be successful with that attitude he responded: Successful? I don't know. I would like to think that I could be successful with this attitude. I can't see it some other way. If this profession demands that I become an asshole and I realized that I'd become an asshole, I would make a change, because this is just a job. I don't think enough people are concerned with resolving conflict this way.27 Trial lawyers know that once all opportunities for mutually satisfying resolutions have disappeared, winning becomes the most important goal. Strategic friendliness, civility, and etiquette are all stronger and safer tools than hostility to accomplish that end goal. Attorneys who prefer Rambo-style intimidation may eventually do so at their peril. Under Rule 8.3 (also known as the "snitch" rule), which imposes a duty to report unethical conduct, the same guidelines applicable to an attorney's own conduct apply to an attorney's duty to report another attorney who has committed a violation of the rule. The state of New York has adopted an ethical rule that extends to law firms the same prohibitions that apply to lawyers.28 The State Bar of California proposed a similar set of rules last year before Governor Wilson vetoed dues legislation and gravely weakened the bar association. Nevertheless, there are those who believe that bringing about magical transformation of the practice of law to reduce stress and encourage diversity may require such drastic steps. Similarly, authors have urged the expansion of the scope of the harassment laws to include systematic forms of gender disparagement, exclusion and hostility in order to provide women workers with a broader range of legal remedies to institutionalized sexism.29 The Minnesota Human Rights Act already contains a provision that provides an attorney could lose his or her license for engaging in discriminatory actions.30 So far there have been no decisions applying this provision, but absent improvement in working conditions for women attorneys, such negative reinforcement may eventually be the court of last resort. OLPR directors have to date declined to accept the power to regulate free speech and vigorous advocacy, hoping instead that diversity training, time, and exposure to lawyers of differing gender and background will eventually rectify the problem. Those who are victimized by Rambo-type conduct should know that the favorite tool of the harasser is the preemptive strike. The danger for the one who complains is that policing mechanisms may turn on the victim sooner than on people in power. This is not to say that there is not a role for the OLPR, Title VII, and other disciplinary mechanisms. But diversity in the practice of law is here to stay and practical tools that advance the goals of professionalism and equal treatment are surely preferable to resorting to greater policing mechanisms.
	Practice Hints What do you do when opposing counsel screams and insults you in every telephone conversation? Hang up the phone, but first declare that unless he or she agrees to be civil, all further communications must be in writing. What do you do when opposing counsel constantly interrupts depositions with ill-founded objections and when you object, insults you with "if you can't take it you shouldn't be practicing law"? You take a break to allow cooler heads to prevail. If they don't, you create a transcript describing the reasons why you are prematurely terminating the deposition until you can get a court ruling on the appropriateness of the conduct of opposing counsel, and you inform the other side that you will ask for costs. If the deposition takes place out of town, you call the judge or magistrate and ask the judge or magistrate to intervene on your behalf. What do you do if opposing counsel has a habit of screaming at you while not saying anything inappropriate, such that subsequent review of the transcript would not reveal the nature and severity of the harassment? You explain on the record what the opposing attorney is doing, perhaps first going off the record and informing opposing counsel that he or she has one more opportunity to shape up before you make a record for the court's review. What do you do if opposing counsel swears at you, makes inappropriate and insulting gestures, and/or is similarly abusive to your witnesses or clients? You terminate the deposition and require videotaping thereafter, which will have an "in terrorem" effect or will provide a visual record on which the court can rule. What you must not do is respond in kind, as difficult as that may seem at times. If you resort to the same type of conduct, you will exposure yourself to countercharges and even potential discipline. What should you do if opposing counsel tells you you don't belong in the practice of law, says you don't know what you are doing, or insults the school where you received your degree? You exude self-confidence and, perhaps with humor, perhaps with exaggerated humility, you say something like "well, you may be right, but I'm here to stay and it's a problem you will have to learn to live with." Tell yourself that your own self-esteem does not depend on affirmation or endorsement by a person such as this. Be self-confident and liberate yourself from fears of your own inadequacy, which perfectionists are apt to suffer from in large doses. Above all, prepare yourself mentally in advance of the deposition, or meeting, or telephone conversation to anticipate potentially inflammatory situations. Thinking about and anticipating the situation will allow you to control your emotions and your responses so that you do not respond in kind. Remember that such temperamental behavior is intended to manipulate. If the attorney provokes a hostile reaction, he or she has achieved the goal of engagement. Opting out of the situation and declining to participate is perhaps the most exasperating response that you can provide. Notes 1 See in re Disciplinary Action Against Graham, 453 N.W.2d 313 (Minn. 1990) (citing State Board of Law Examiners v. Hart, 116 N.W. 212, 214-17 (Minn. 1908). (Back to text) 2 In re Williams, 414 N.W.2d 394, 397 (Minn. 1987), citing In re Getty, 401 N.W.2d 668 (Minn. 1987). (Back) 3 Edward J. Cleary, "Free Speech, Civility, and Harassment," 55 Bench & Bar 2 (February 1998) at 18, quoting R.A.V. v. City of Saint Paul, 505 U.S. 377 (1992). (Back) 4 See Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986) (establishing first that the "terms, conditions, or privileges of employment" enumerated in Title VII evince an intent to strike at the entire spectrum of disparate treatment of men and women in the workplace, and subsequently, that actionable claims of workplace sexual harassment are not limited to "economic" or "tangible" discrimination but include "hostile work environment"). (Back) 5 Cleary, supra at 18. (Back) 6 Id. (Back) 7 2 Trial of Queen Caroline 3 (F. Linn. ed., 1879). (Back) 8 Pierce, Jennifer L. Gender Trials. Berkeley: Univ. Cal. Press, 1995, p. 58. (Back) 9 In the Matter of Schiff, 599 N.Y.S.2d 242, 190 A.D.2d 293 (1993). (Back) 10 In the Matter of Ramunno, 625 A.2d 248, 250 (1993). (Back) 11 In the Matter of Vencenti, 458 A.2d 1268 (N.J. 1983). (Back) 12 Castillo v. Saint Paul Fire & Marine Ins. Co., 828 F.Supp. 594 (C.D.Ill. 1992). (Back) 13 Van Pilsum v. Iowa State University of Science and Technology, 152 F.R.D. 179 (S.D. Iowa 1993). (Back) 14 See Menuskin v. Williams, 940 F.Supp. 1199 (E.D. Tenn. 1996). (Back) 15 Cleary, supra, at 20. (Back) 16 Cleary, supra at 18. (Back) 17 In re Starr, 577 N.W.2d 211 (Minn. 1997). (Back) 18 Cleary, supra at 19. (Back) 19 Id. (Back) 20 See Marcia Johnson, "Uncivil" Practice, 51 Bench & Bar 4 (April 1994), 15. (Back) 21 Cleary, supra at 19. (Back) 22 Id. (Back) 23 Pierce, supra at 52; 72-73. (Back) 24 Hon. Warren Burger, q. in Rosemary Nidiry, "Restraining Adversarial Excess in Closing Argument," 96 Colum. L. Rev. 1299, 1334 (1996). (Back) 25 Pierce, supra, at 72. (Back) 26 Id. at 122-23. (Back) 27 Id. at 125-26. (Back) 28 Hanson, Mark, "Taking a Firm Hand In Discipline," ABA Journal (March 1998), at 24. (Back) 29 Pierce, supra at 185. (Back) 30 See M.S.A. §363.071 subd. 4. (Back)	"diversity in the practice of law is here to stay and practical tools that advance the goals of professionalism and equal treatment are surely preferable to resorting to greater policing mechanisms."