George Washington Esq.

A Model of Civility

by Jeffrey Simmons

George Washington was many things: surveyor, soldier, revolutionary leader and the first president of the United States. Unlike many of his successors in the White House, he was not a lawyer. Yet, 110 "Rules of Civility" guided him — rules that if followed by lawyers today could increase civility in the legal profession. At a time when many lawyers believe that there is an increasing problem of incivility in litigation, Washington is an unlikely role model. His personal adherence to the "Rules of Civility" reveals that had Washington chosen the practice of law he would have been a model of professionalism — and not a "Rambo litigator."

Jesuit tutors in 1595 first compiled these rules for teaching the children of the powerful. ¹ As a teenage boy in Virginia, Washington copied the 110 rules into a notebook.² And, although it remains a mystery as to how Washington came by the rules, he carried them throughout his life, including all eight years as the first president of the United States.³ Thanks in no small part to the rules, civility had become second nature to Washington by the time he rose to greatness.⁴

Washington — genial by nature — got along well with men and women, but he could also have a temper.⁵ His earliest lessons on how to rein in his temper came from these rules: "[I]n reproving shew no sign of choler" (rule #45); "Speak not injurious words neither in jest nor earnest" (rule #65); "When you deliver a matter do it without passion..." (rule #83); and "Be not angry at table whatever happens & if you have reason to be so, show it not but [put] on a cheerful countenance" (rule #105).⁶

Many of Washington’s rules are outdated, time-bound from an era less polished and more coarse than our own.⁷ For instance, rule #13 says not to crush ticks in the presence of strangers.⁸ Nevertheless, lawyers can still profit from many of these rules that guided Washington throughout his life.

If Washington was a lawyer today, he would be an advocate for professionalism — and against "hardball" litigation tactics. Rule #1 sets the tone: "Every action done in company ought to be done with some sign of respect to those that are present."

This rule defines decent behavior among lawyers: We should always be mindful of others — whether clients, opposing counsel or parties in litigation — and remember that they have sensibilities and feelings of self-respect. At all times, lawyers must refrain from engaging in acts of rudeness or disrespect.⁹ In other words, despite a lawyer’s duty of zealous advocacy, his or her goal should not be to humiliate and embarrass others, and courtesy and civility should not be equated with weakness.

"Rambo litigators" often practice "scorched earth" tactics in an attempt to intimidate and wear down their opponents. And they often appear pleased at the misfortune they seemingly cause. Washington would not have been pleased with such conduct: "Shew not yourself glad at the misfortune of another though he were your enemy" (rule #22).

Rule #66 reminds us to be "friendly and courteous." This is basic, but applicable, advice for lawyers today. With respect to opposing parties and their counsel, lawyers should be courteous and civil in all communications.¹⁰ Consistent with that advice is rule #58: "Let your conversation be without malice or envy, for ’tis a sign of a tractable and commendable nature, and in all causes of passion permit reason to govern." Lawyers may gain more for their clients if they are firm, but polite. Lawyers should not pick fights and be disagreeable for no real advantage.

"Modesty" is a thread that runs through many of Washington’s rules. For example, rule #40 says: "Strive not with your superiors in argument, but always submit your judgment to others with modesty." Consistent with "modesty," the rules warn against being arrogant: "Undertake not to teach your equal in the art himself professes; it savours of arrogancy" (rule #41). The message: lawyers should be willing to take advice, as we can learn from our colleagues.

Although it may have been a hard lesson for Washington to absorb — because of his temper — he knew that people should not berate others in public.¹¹ Rule #45 says: "Being to advise or reprehend any one, consider whether it ought to be in publick or in private, presently, or at some other time, in what terms to do it; & in reproving shew no sign of choler, but do it with all sweetness and mildness."

Where consistent with a client’s interest, lawyers should listen to opposing counsel and other points of view in an effort to avoid litigation or to resolve pending litigation.¹² Consistent with that advice is rule #86: "In disputes, be not so desirous to overcome as not to give liberty to each one to deliver his opinion..." And rule #87 provides: "Contradict not at every turn what others say."

In 1996, complaints involving abusive language by lawyers resulted in 38 percent of those received by the State Bar of Arizona’s Peer Review Committee. That committee resolves professionalism complaints that do not evidence a violation of the Rules of Professional Conduct. The offending lawyers, then, should heed Washington’s good advice: "Use no reproachful language against any one, neither curse nor revile" (rule #49); and "Speak not injurious words neither in jest nor earnest..." (rule #65).

At first glance, certain of Washington’s rules may seem irrelevant to a discussion of professionalism among lawyers: "When in company, put not your hands to any part of the body not usually discovered" (rule #2); and "Put not off your clothes in the presence of others..." (rule #7). Such rules may be a helpful reminder to some lawyers who appear before the Bar’s Peer Review Committee. In light of the type of complaints the committee receives — including those of sexual harassment towards a client — such rules may not seem so outlandish for those in the legal profession today.

Rule #6 advises: "Sleep not when others speak..." This advice may become relevant when a lawyer is sitting in on long, tortuous depositions. If awake at the deposition, the lawyer may experience opposing counsel making obnoxious gestures in an attempt to intimidate or harass the lawyer or deponent. Rule #12, then, should be read by the offending lawyer: "Shake not your head, feet, or legs, roll not the eyes, lift not one eyebrow higher than the other, [and] wry not the mouth...when you speak."

The "Rules of Civility" offer sound advice about communicating important points and not getting bogged down in frivolous arguments. "Utter not base and frivolous things among grave and learn’d men, nor very difficult questions or subjects among the ignorant, or things hard to be believed. Stuff not your discourse with sentences among your betters nor equals" (rule #61).

Other rules found in Washington’s notebook should also help lawyers’ communications — whether with opposing counsel, clients or the court. Rule #73 advises: "Think before you speak, pronounce not imperfectly, nor bring out your words too hastily, but orderly, distinctly." Rule #74 says: "When another speaks be attentive yourself, and disturb not the audience. If any hesitate in his words, help him not nor prompt him without [being] desired. Interrupt him not, nor answer him till his speech be ended." And rule #88 states: "Be not tedious in discourse, make not many digressions, nor repeat often the same manner of discourse."

Rule #69 says: "If two contend together take not the part of either unconstrained, and be not obstinate in your own opinion. In things indifferent be of the major side." That is indeed good advice today because lawyers should be indifferent or concede certain points or issues of no major consequence in the litigation. For example, a lawyer should, when requested, waive procedural formalities when the legitimate interests of his or her client will not be adversely affected, e.g., rescheduling a deposition or court hearing, or stipulate to facts as to which there is no genuine dispute.¹³

Washington’s rules also had something to say about making sure that your partners and associates have core values in alignment with your own. Rule #56 implores: "Associate yourself with men [and women] of good quality if you esteem your own reputation; for ’tis better to be alone than in bad company."

The last rule, rule #110, reminds us that we should pay attention to our conduct in all our dealings: "Labour to keep alive in your breast that little spark of celestial fire called conscious." Washington would have agreed that this is a rule for all lawyers to live by.

Civility served Washington well, as decent behavior helped him lead a new nation.¹⁴ Modern lawyers can learn from Washington’s example. Civility must be at the top of a lawyer’s list of priorities to ensue a satisfying and good law practice.¹⁵ "Rambo litigators" and "hardball" have no place in Washington’s model of civility.

Jeffrey R. Simmons is a commercial litigator with the Phoenix office of DeConcini McDonald Yetwin & Lacy, P.C.

ENDNOTES:

1. Richard Brookhiser, Rules of Civility: The 110 Precepts That Guided Our First President in War and Peace 1 (1997).
2. Id. at 4.
3. Id. at 1-4.
4. Id. at 18.
5. Id. at 11-12.
6. Id. at 14-16.
7. Id. at 8.
8. Id.
9. See A Lawyer’s Creed of Professionalism of the State Bar of Arizona, in State Bar of Arizona Membership Directory 72 (1996-97) [hereinafter Lawyer’s Creed].
10. See id. at 71.
11. Brookhiser, supra note 1, at 45.
12. See Lawyer’s Creed, supra note 9, at 72.
13. See id. at 71-72.
14. Brookhiser, supra note 1, at 18-19.
15. See Hon. Thomas A. Zlaket, Communication and Conduct Among Lawyers: A Call for Professionalism, in Life, Law And The Pursuit of Balance: A Lawyer’s Guide to Quality of Life 169 (Jeffrey R. Simmons ed., 1996).