Notes from the civility experiment: P.M. Forni v. Lord Brougham

The experiment is explained here.  On the surface there appears to be a basic conflict between civil conduct as Forni describes it and one of the fundamental obligations lawyers owe to clients:  the duty of loyalty.

Forni explains 25 rules of considerate conduct.  Considerate conduct requires taking the interests of others into account.  Lawyers are taught to focus on their clients’ interests.  Perhaps the most famous (and not entirely accurate) expression of the lawyer’s duty of loyalty is Lord Brougham’s: “…that an advocate, by the sacred duty he owes his client, knows, in the discharge of that office, but one person in the world, THAT CLIENT AND NONE OTHER.” (The entire quote can be found here.)

To the lawyer’s duty of loyalty add the economic pressure of making money (a pressure that can be daunting in virtually any context) and one has a potent, potentially all-consuming compulsion to behave in a way that places little if any value on considerate conduct.  In fact, considerate conduct may be viewed as weak, ineffective and even unprofessional.  Such a view is utter nonsense and potentially self-destructive and harmful to the client’s interests because rude, offensive, aggressive behavior often makes the handling of a case or matter inefficient, more time consuming and more expensive than necessary.  The ironic and unfortunate fact sometimes is that lawyers make more money when they behave in the most inconsiderate of ways.  Or so it appears.  In some cases, lawyers do make more money by being rude, aggressive and inconsiderate.  But often they don’t.  Their conduct costs them (and others) money, leads to a poor reputation in the legal community and puts the profession in a bad light.

More attention needs to be paid to the value – economic, professional, personal – of considerate conduct, which is in no way inconsistent with the duty of loyalty.  Part of the duty of loyalty is to be efficient and to keep legal fees reasonable. Considerate conduct contributes to more efficient, cost-effective lawyering. Legal education and law firms and bar associations should promote the professional value of considerate conduct.