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Uncivil Nevada attorneys? State Bar task force is looking for a cure


CARSON CITY — That there appears to be a pervasive lack of civility in this modern world — from attacks in the political arena to Black Friday shopping melees to celebrity Twitter feuds — should surprise no one.

Now this perception of a breakdown in good manners appears to have hit the world of lawyers as well.

The State Bar of Nevada has established a civility task force to consider ideas on how to ensure that lawyers, often known for their tenacity on behalf of their clients, operate with the proper decorum both within and outside the courtroom.

Senior Judge Gerald Hardcastle, in an article on the subject published in 2009, put it this way: “Too often attorneys and litigants view the courtroom as the ultimate bar fight — a place where winning, at whatever cost, is the goal, and where the rules are: there are no rules.”

Hardcastle said incivility is like “looting after a riot; there is understanding that incivility is bad but, hey, everyone else is doing it and they get all the free stuff. There is an implication that incivility works.”

It isn’t hard to find anecdotal evidence supporting such a view.

Las Vegas attorneys Mark Coburn and Scott Holper engaged in a verbal alter­cation in Justice Court Judge Conrad Hafen’s courtroom in July.

Hafen issued a temporary protective order for both attorneys against each other and warned them to behave themselves while in the Regional Justice Center.

In a phone interview, Hafen said he has detected an increase in uncivil behavior in his courtroom in recent years, mostly coming from younger attorneys who are more combative than their more experienced colleagues.

Attorneys learn over the years that not every issue is worth a fight, he said.

“Learning to pick your battles may be a part of it,” Hafen said. “The experience factor.”

The State Bar review is absolutely worthwhile, he said.

“I’ve had to stop proceedings several times to chastise the attorneys,” Hafen said. “I’ve had to stop trials to admonish them to start acting professionally.”

One potential solution to the problem would be to have more experienced attorneys mentor their younger colleagues on the issue, he said.

James Patrick Shea, a partner in Armstrong Teasdale’s financial and real estate services practice group in Las Vegas, was named this past week to serve as an advisory member of the newly formed civility task force.

Shea performed a similar review as chairman of the American Bankruptcy Institute’s Civility Task Force.

The group, which produced its “Principles of Civility” in August of last year, has called for continuing education on the subject.

“We took a middle ground and did not get into specifics,” Shea said. “We simply wanted to remind people that as attorneys, accountants and judges, we may be the only contact people have with the legal system.

“We can’t require everyone to bring their mom to the office.”

The question of whether there is a real lack of civility or if it is more of a perception by the public was not answered in the bankruptcy institute’s review, he said.

But there are more than 100 Bar organization reports on the issue, suggesting at least that it is a concern for attorneys around the country, Shea said.

Recommendations in the different reports are varied.

A nonbinding pledge adopted by the Clark County Bar, for example, says that an attorney will:

■ Be courteous and civil to other counsel and their clients.

■ Agree to reasonable requests for extensions of time.

■ Cooperate in the scheduling of depositions and meetings.

■ Refrain from using litigation, delaying tactics or other conduct to harass another party.

The American Bankruptcy Institute report says that effective representation does not require antagonistic or acrimonious behavior. In communications, professionals should avoid vulgar language, disparaging personal remarks or other indications of acrimony.

Hardcastle had some recommendations for attorneys in his article, including maintaining self-control in the courtroom.

“If you want a good role model, think of Gary Cooper awaiting high noon: a quiet, reasoned, but elegant and effective man,” he said. “He would have been a good trial attorney.”

Shea said he cannot say whether incivility is more of a problem now than in days gone by.

“I do think there is a perception that a lawyer’s job is to be a junkyard dog,” he said.

But the reality is that the job of attorneys is to resolve issues and that the tactics Shea called “Dick Butkus” law will escalate the cost and reduce the effectiveness of litigation. Butkus was a Chicago Bears linebacker famous for his hard hits on the field.

Las Vegas attorney Richard Scotti, a member of the State Bar Board of Governors, was named chairman of the task force by Bar President Alan Lefebvre.

Scotti said the task force will first determine whether there is a problem and if so, define the nature of the problem so that appropriate education is provided to address it.

Most other neighboring states are further along on the issue, including in­corporating civility language into the attorney oath, he said.

A proposal has been submitted to the Nevada Supreme Court to amend the oath to include civility language, Scotti said.

There is some difference of opinion on what is needed to address the civility issue, he said. But adding the language to the oath and expanding continuing legal education on the issue do have support, he said.

The task force is also looking at a Pledge of Professionalism adopted by the Clark County Bar Association in 1993 that includes references to civility. The pledge is a list of nonbinding conduct recommended for attorneys.

“I don’t see it as a bigger problem now than it has been in the past,” Scotti said. “It is human nature for lawyers, as people, to get emotional. But we need to make sure lawyers conduct themselves to a very high standard.”

Contact Capital Bureau reporter Sean Whaley at swhaley@reviewjournal.com or 775-687-3900. Follow him on Twitter @seanw801.

 

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