When incivility crosses the line into a disciplinary violation
By: Arend J. Abel, Attorney
The Supreme Court entered an order last week that should cause every attorney to pause before hitting “Send” on that nasty email targeted at opposing counsel, and before filing a motion that vents frustration at a trial court’s ruling. They could get you suspended.
Last week, an attorney in northern Indiana was suspended for, among other things, sending an email to opposing counsel saying the opposing parties were “possibly homophobic, racist, [and] sexist” and accusing the judge in a parenting time dispute of displaying a “stubbornly injudicious attitude” and “taking off on detours and frolics that ignore the fact that there are laws in Indiana that the court is supposed to follow and uphold.”
Of course, the attorney also did something we should all know not to do: he used the threat of a disciplinary complaint against opposing counsel to try to pressure opposing counsel to agree to a change of venue.” Using the threat of a disciplinary complaint to attempt to obtain concessions in a civil matter is an ethical no no.
But it appears that’s not all the lawyer was disciplined for. Threatening an ethical complaint to gain an advantage in litigation is normally treated as a violation of Indiana Rule of Professional Conduct 8.4(d).
Importantly, though, the Indiana Supreme Court found that, in addition to Rule 8.4(d), that attorney had violated the Indiana Oath of Attorneys by “acting in an offensive manner.” In the Oath, new admittees to the Indiana Bar swear they will “abstain from offensive personality.” While we don’t know what action the Supreme Court would have taken if that were the attorney’s only alleged misconduct (or even whether the attorney would have been charged), it now appears that what at first glance might seem a quaint aspirational call for civility carries with it the threat of suspension.