Recently, a law firm in Florida released an internal memorandum in which it outlined new procedures. Specifically, the memo stated that management wanted to “make it unequivocally clear that [the firm will not be not be giving an inch to [insurance] carriers ever again. Not one inch.”

The memo also informed attorneys that extensions and continuances to opposing counsel in insurance litigation would no longer be granted: “Specifically, as a matter of policy we will not be granting any extensions of any sort moving forward for any reason. They can figure it out or file a motion. Under no circumstances will we be agreeing to any continuances, discovery extensions or request to extend deadline to answer complaints. Red line rules.”

Extending any courtesies to lawyers representing the insurance industry would “be a serious internal offense” because insurance carriers are “[the] enemy who is heartless and ruthless … [and] who would like nothing more but for [plaintiff’s attorneys] to be unemployed.” Further, the memo argues that insurance carriers on the whole “tr[y] to take from the most vulnerable people and consequently, from your families.”

The firm sent a follow-up memo the next day, after media focus on the first memo, stating that, “all attorneys and team members are required to follow the rules of professional conduct and civil procedure” applicable in their states. But the tone of the firm’s message and its blanket policy against civility has raised questions in the community about how zealous is too zealous.

Consider the Rules of Professional Conduct

Attorneys have a duty to zealously represent their clients. But representing clients zealously does not eliminate the duty to be professional and civil.

In many states and courts, the rules instruct against treating opposing counsel with unnecessary harshness. In Georgia, a Comment to Rule of Professional Conduct 1.3 states, “The lawyers’ duty to act with reasonable diligence does not require the use of offensive tactics or preclude the treating of all persons involved in the legal process with courtesy and respect.”

Comment 3 to the Rule further provides: “A lawyer’s duty to act with reasonable competence, however, does not preclude the lawyer from agreeing to a reasonable request for a postponement that will not prejudice the lawyer’s client.”

Similarly, the Florida Bar provides Guidelines for Professional Conduct. Among the General Principles is the following: “A lawyer should be courteous and civil in all professional dealings with other persons. Lawyers should act in a civil manner regardless of any ill feelings that their clients may have toward others. Lawyers can disagree without being disagreeable. Effective and zealous representation does not require antagonistic or acrimonious behavior. Whether orally or in writing, and whether in or out of court, lawyers should avoid vulgar language, disparaging personal remarks or acrimony toward other counsel, parties, or witnesses.”

The Guidelines also require civility in negotiating deadlines, providing both that “[a]ttorneys should cooperate with each other when conflicts and calendar changes are necessary and requested” and that “[r]equests for reasonable extensions of time to respond to litigation deadlines, whether relating to pleadings, discovery or motions, ordinarily should be granted between counsel as a matter of courtesy unless time is of the essence.”

Thus, when adopting firm policies, lawyers should consider the applicable rules of professional conduct and whether they govern the type of conduct at issue.

Will This Conduct Impact the Litigation?

The law firm that sent out the referenced memo said that setting limits on reasonable accommodations for other lawyers was guided by serving the best interests of its clients. But setting bright-line rules regarding requests for extensions is unlikely to serve the client’s interests. In fact, refusing to work professionally with opposing counsel could impact the merits of litigation and the client’s goals.

If the parties are unable to work together amicably, the court could become frustrated with unnecessary motions practice. If the court believes that one side is refusing to cooperate, that could adversely affect the client’s goals in litigation.

Indeed, wasting the court’s time with small issues could provoke a reaction from the court that is not in the client’s interest. Moreover, a lawyer who refuses to agree to extensions for opposing counsel is unlikely to receive such extensions either.

Consistently taking needlessly aggressive positions can also impact the parties’ ability to handle other aspects of the litigation, such as choosing deposition locations or even discussing a reasonable settlement. Being unable to move forward in any way is typically not in any client’s interest.

Moreover, the internal memo singled out a specific industry (insurance), suggesting that their legal positions are never supported. Such a position is inconsistent with the civility rules and creates unnecessary animosity.

Is a Policy Necessary?

While a law firm’s internal policies and procedures can be useful in providing guidance to lawyers and staff, such policies also reveal something about the firm’s goals, directives and philosophies. Internal policies that demonize other members of the bar, particularly when they become the subject of a press release or other story, may draw unwanted negative attention to the firm and may impact the firm’s reputation among other advocates or even courts.

It could also have a negative impact on firm culture as a whole or lead to allegations that the policy violates the rules of civility set by the courts.

Firms reviewing these issues can consider their ethical duties under the rules and the fact that the practice of law is a profession that supports certain courtesies, when applicable.