Be excellent to each other!

The purpose of this blog is to, in a very small way, assist South Carolina real estate lawyers in their constant quest to stay out of trouble. And there are so many ways we can get ourselves into trouble!  Trust accounting, cyber-security, legislative changes, case law changes and rule revisions are just a few examples. But I’m in the holiday spirit, and it occurred to me that one of the easiest ways to get into trouble is to simply fail to be nice.

Some lawyers had developed such terrible habits of failing to be courteous to each other and to opposing parties that our Supreme Court added a “Civility Oath” in 2003, which reads:  “To opposing parties and their counsel, I pledge fairness, integrity, and civility, not only in court, but also in all written and oral communications…”  New lawyers now take this oath when they are sworn in, and the rest of us had to attend seminars or functions that included the new oath as a component. We have all now pledged to be civil.

South Carolina lawyers have been disciplined for being uncivil and unprofessional. One lawyer wrote a letter questioning whether the officials of a municipality had brains and souls. He was suspended for 90 days and required to complete the Bar’s legal ethics and professionalism program. Another lawyer was suspended for 90 days for slapping an opposing party during a deposition.

The Office of Disciplinary Counsel has requested a sanction for bringing the profession into disrepute through a blog. Because the lawyer didn’t identify himself as a lawyer in his blog, the Supreme Court said the profession was not harmed. (I promise to be careful!)

Some authorities on the subject of attorney civility have speculated that technology and social media have exacerbated this problem. It’s easy to be rude while hiding behind a computer screen. Another factor has been the economy. When young lawyers are forced to hang out shingles without the careful mentorship of seasoned lawyers, they often fail to obtain the requisite training on how lawyers should behave.

Litigation lawyers are in the business of fighting for a living, so they often walk a tight rope between vigorously representing their clients and mowing over their opponents in an uncivil manner. I remember, however, attending a trial early in my career to witness two excellent, seasoned, respected Columbia lawyers attempt to out-polite each other. It was an impressive display of civility and effective representation that has remained vividly in my memory for many years. If we were all as civil as those two litigators were, no civility oath would have been necessary.

Unlike trial lawyers, transactional lawyers are in the business of providing solutions, solving problems, arriving at consensus and properly documenting all of the above. Transactional lawyers should, in theory, have fewer problems getting along with each other than trial lawyers have. That is definitely not always the case.

Sitting here in Columbia and listening to title problems from lawyers across South Carolina all day long, the lawyers in our office hear fights between real estate lawyers on a routine basis. It seems to us that an inability to communicate civilly can have a direct dollar impact on business through lost time and productivity.

Books and articles on business ethics stress the value of being nice. I believe that being nice is particularly valuable to transactional lawyers. Being nice can, for example, go a long way toward keeping a lawyer from being sued.

I was taught as a young lawyer to be courteous to the most annoying real estate agents and the most exasperating clients. We should all own up to and fix our mistakes, even when fixing a mistake requires writing a check. Our written and oral communications should demonstrate that we are not only effective lawyers, but also courteous, caring, sympathetic individuals. Being a meticulous and effective lawyer is the best method to eliminate being a defendant in litigation, but being nice is probably the second best method.

I am now stepping off of my soap box and wishing each of you happy holidays and a healthy, happy and prosperous 2018!