An ethics complaint has been filed against an Illinois attorney who, as he left a courtroom, bid farewell to his opposing party with the words, “Have a nice day, you piece of shit!” The alleged legal ethics violations are Illinois Rule 4.4, which prohibits using means that have” no substantial purpose other than to embarrass, humiliate or burden a third person,” and Rule 8.4, which among its provisions forbids “conduct prejudicial to the administration of justice.”
It seems unlikely that the Illinois Bar will find these Rules to have been violated to the extent justifying discipline. Make no mistake: the statement is unethical. It is rude, unprofessional, abusive, disrespectful, and, of course, uncivil. Such conduct is obviously not ethical, and if the lawyer engaged in similar conduct routinely and habitually, despite official warnings, it could well rise to a level that would warrant professional discipline. But while one incident of gratuitous nastiness is generally unethical, it is not a violation of the Rules of Professional Conduct serious enough to be flagged. Being called a “piece of shit” in 21st Century America is not going to send any women to her bed with the vapours; calling the insult an effort to harass, humiliate or burden is a real stretch. If anyone should feel humiliated, it is the crude lawyer himself. The insult cannot reasonably be regarded as “conduct prejudicial to the administration of justice,” either. The uncivil remark was made after court adjourned. It did not interfere with court proceedings, impede discovery or intimidate witnesses.
This incident is a reminder of how low the bar is set for professional ethics, not merely in law but in other professions as well. The official rules define a low standard, the minimum threshold of ethical conduct permissible without incurring professional discipline. For lawyers who are satisfied with meeting the lowest standard of conduct and nothing more, the rules will excuse, if not endorse, a wide range of conduct that more discerning and scrupulous lawyers would find inappropriate, offensive, and wrong.
Saying goodbye with “Have a nice day, you piece of shit!” is generally such conduct.
But maybe not this time. Professor Alberto Bernabe of John Marshall Law School examined the circumstances of the remark:
“…the comment was made by a male attorney to a female opposing party (a grandmother) who had appeared in court without a lawyer. Also the attorney was representing a man who had violated the terms of a protective order to stay away from the woman and her grandson. The attorney had no business talking to her without counsel present to begin with, let alone to be rude (and possibly intimidating) in that manner. I don’t think it is a stretch to say that under the circumstances, the conduct is prejudicial to the administration of justice.”
This shows that all “Have a nice day, you piece of shit!” farewells are not necessarily equally unethical. I respect the professor’s point, but even considering that the target was not a lawyer, was elderly, was female, and did not have her lawyer present, I think its brevity, vernacular familiarity, and the fact that it took place after court adjourned indicates that while the remark was unethical, it didn’t rise to a level that the legal profession regards as a rules violation.
{Thanks to the Legal Ethics Forum for the tip.]
Ethics Alarms 
Lawyers like this are the reason they need to bring back dueling.
You would like that, wouldn’t you?
The only time I say that fatuous, abominably overused phrase — the first four words — is when I am thinking the last four.
Lol
I fail to see how this is not an ethical violation.
Firstly, it isn’t enough that the language isn’t likely to “send a woman to her bed with the vapours”. That isn’t the standard.
The lawyer made his comment in the course of his duties.
Lawyers acting in the course of their duties are held to a higher standard than the general public because their conduct reflects upon the administration of justice. Rude, abusive, unprofessional conduct in that context is necessarily prejudicial to the administration of justice.
Secondly, as I explained in my blog entry on this case, lawyers have an ethical duty to expedite litigation. Behaving as this lawyer did, under those particular circumstances renders him useless to his client, because now, not only are the litigants not on speaking terms, but the lawyer is in no better a position to facilitate communication than his client. As a result, the litigation will become more protracted, acrimonious and expensive.
Clearly, that is prejudicial to the administration of justice.
This type of conduct can’t be allowed to go unpunished.
Franco–I agree it’s an ethics violation in Canada, as you very capably said on your blog. I don’t see that any Rule in the U.S. makes one such instance punishable misconduct. The civility and professionalism rules and guidelines, which most jurisdictions have, are voluntary only. In this case, I think your worst case scenario is far too speculative. I don’t believe the conduct is very likely to have any impact at all—except now everyone knows the lawyer is an ass.
I don’t think that any State Bar wants to wade into the morass of deciding when a particular uncivil remark or insult of this sort crosses the line into a 4.4 or 8.4 violation “Have a nice day–you piece of shit…shithead…dickhead…meat head; you piece of offal…son of a bitch…son of a hell-hound”;”…you jerkwad, jerk-off, jerk; you regrettable miscreant…waste of life…nattering nabob…putz…” What is acceptable and what isn’t?
And if the line is drawn at ANY potentially offensive insult or perceived insult,the First Amendment comes into play. I can’t see it happening.
I agree that the conduct is unethical, as I said. I’ll bet you a dinner that if the lawyer gets disciplined, it won’t be for the remark.
Of course I would Jack. but then I think that too many people today run their mouths with no consequences for their actions.
Mr. Aitken, it is clear to the entire world that your scurrilous remarks are directed at me and me alone. I demand satisfaction.
Naval sabers at dawn? And prepare coffee for one.
Sabers my ass. All you can eat Krispy Kreme Donuts until one’s heart gives out.
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