Posted on April 6, 2022

How To Deal With A Rude Opposing Counsel In An Illinois Divorce

Divorce is hard. The person you used to love is now willing to pay hundreds of dollars an hour to make your life miserable. Some divorce lawyers really embrace the role of the “zealous advocate” and eloquently (or not-so-eloquently) tell you how you should feel about yourself.

There is no reason for a divorce lawyer to be rude or combative during an Illinois divorce.

In a divorce, two people are going through a horrible process. It is the divorce lawyer’s job to get them through that process with as much of their money, parenting time and emotional integrity as possible. How is being rude, nasty, or dismissive going to help the client?

“A lawyer should use the law’s procedures only for legitimate purposes and not to harass or intimidate others.” Ill. Sup. Ct. R. Preamble: a Lawyer’s Responsibilities

Being A Jerk Is Not Allowed If You Are An Illinois Lawyer

Despite the perception and, in fact, demand for lawyers who are jerks, being overly abrasive is actually not allowed pursuant to the Illinois Rules Of Professional Conduct.

Well, an Illinois lawyer can be a jerk…they just can’t be a jerk for its own sake.

“In representing a client, a lawyer shall not use means that have no substantial purpose other than to embarrass, delay, or burden a third person, or use methods of obtaining evidence that violate the legal rights of such a person.” Ill. R. Prof’l Conduct R. 4.4(a)

 If an Illinois lawyer is being a jerk in the process of doing something with a “substantial purpose” that is probably allowed.

But, that “substantial purpose” is “prejudicial to the administration of justice”, i.e. extra jerky, that behavior is not allowed by an Illinois lawyer.

“It is professional misconduct for a lawyer to:

(d) engage in conduct that is prejudicial to the administration of justice.” Ill. R. Prof’l Conduct R. 8(a)

Obviously, bad lawyer behavior is in the eye of the beholder. Local rules and local custom really discourage bad behavior.

“A lawyer shall treat the court, opposing counsel and witnesses in a civil and courteous manner, not only in court, but also in all written and oral communications.” Cook County Court Rule 13.11(a)(i)

In Cook County, there are 39 rules about how family law attorney’s should remain civil to each other. All 39 rules can all be cited if appropriate and necessary.

In my experience, 90% of rude, annoying or harassing behavior by an attorney is just the rude attorney having a bad day. Ignore the rude attorney. Call the rude attorney later (never email). The problem will probably resolved itself with time.

The defense to the accusation of being rude or unprofessional is that you were simply being honest. Attorneys “owe a duty to the court to be honest and forthright in all dealings with the court.” Semmens v. Semmens, 77 Ill. App. 3d 936, 940 (1979). If that involves hurting some feelings…so be it.

If the attorney’s bad behavior is so intractable that you know it’s causing an injustice to your case and will likely cause injustice to the cases of others, you should contact the Attorney Registration and Disciplinary Committee.

Reporting Bad Behavior To The Attorney Registration and Disciplinary Committee

After an attorney gets their license to practice law…they must keep it. The Attorney Registration and Disciplinary Commission is responsible for regulating attorney behavior in Illinois.

“The registration of, and disciplinary proceedings affecting, members of the Illinois bar…shall be under the administrative supervision of an Attorney Registration and Disciplinary Commission.” Ill. Sup. Ct. R. 751(a)

The Attorney Registration and Disciplinary Commission help enforce the Illinois Rules of Professional Conduct.

Some of the rules are very specific and some are very vague.

“[T]he standards of professional conduct enunciated by this court are not a manual designed to instruct attorneys what to do in every conceivable situation.” In re Rinella, 677 NE 2d 909 – Ill: Supreme Court 1997

“[T]he canons of ethics in the Code constitute a safe guide for professional conduct, and attorneys may be disciplined for not observing them.” In re Himmel, 533 NE 2d 790 – Ill: Supreme Court 1988

Mostly lawyers govern themselves. We report each other and shun those who regularly misbehave.

“The Rules of Professional Conduct recognize that the practice of law is a public trust and lawyers are the trustees of the judicial system.” In re Smith, 168 Ill.2d 269, 287, 213 Ill.Dec. 550, 659 N.E.2d 896 (1995)

The point of attorney discipline in Illinois is not to punish attorneys but to keep the public safe from bad attorneys.

“Our attorney disciplinary proceedings are designed to safeguard the public and maintain the integrity of the legal profession.” In re Levin, 101 Ill. 2d 535, 541 (Ill. 1984)

“The objective of a disciplinary inquiry is not punishment, but to protect the public from incompetent or unscrupulous attorneys, maintain the integrity of the profession, and protect the administration of justice from reproach.” In re Daugherty, 180 P. 3d 536 – Kan: Supreme Court 2008

The Attorney Regulation And Disciplinary Commission only cares about what attorneys do…while they are being an attorney. If an attorney is rude to you in their off-time it doesn’t matter (unless it affects the dignity of the legal profession)

“We are charged with the responsibility of supervising the professional conduct of attorneys practicing in this State, and we are interested in their private conduct only in so far as such relates to their professional competence or affects the dignity of the legal profession.” In re Serritella (1955), 5 Ill.2d 392, 398.

“In imposing discipline in this case we do not intend to imply that attorneys must conform to conventional notions of morality in all questions of conscience and personal life.” In re Lamberis, 93 Ill. 2d 222, 227 (Ill. 1982)

Most reports of attorney bad behavior will be met with a stern warning and no further punishment.

“Violation of a Rule should not itself give rise to a cause of action against a lawyer nor should it create any presumption in such a case that a legal duty has been breached. In addition, violation of a Rule does not necessarily warrant any other nondisciplinary remedy, such as disqualification of a lawyer in pending litigation.” Ill. Sup. Ct. R. Scope

Any further discipline will require some kind of hearing.

“In attorney disciplinary proceedings, the Administrator must prove the alleged misconduct by clear and convincing evidence.” Supreme Court Rule 753(c)(6)

Attorney disciplinary hearings in Illinois are not grand affairs. So, do not expect the pageantry of the justice system when reporting a lawyer for rudeness.

“Attorney disciplinary proceedings are sui generis resulting from this court’s inherent power to regulate the practice of law. As such, they are neither civil nor criminal in nature, and are governed by this court’s rules and decisions” In re Ettinger (1989), 128 Ill.2d 351, 131 Ill.Dec. 596, 538 N.E.2d 1152.

The punishment must fit the crime. So, in the event of rudeness, expect the attorney to be referred to the Attorney Registration and Disciplinary Commission’s professionalism seminar coupled with an apology (maybe)

“When determining the nature and extent of discipline to be imposed, the respondent’s actions must be viewed in relationship “to the underlying purposes of our disciplinary process, which purposes are to maintain the integrity of the legal profession, to protect the administration of justice from reproach, and to safeguard the public.” (In re LaPinska (1978), 72 Ill.2d 461, 473.)'” In re Levin (1987), 118 Ill.2d 77, 87, quoting In re Crisel (1984), 101 Ill.2d 332, 343.

Requesting Attorney Fees From A Rude Counsel

When rudeness becomes litigation, attorney’s fees can be requested due to “harassment, unnecessary delay, or other acts needlessly increasing the cost of litigation.”

“If at any time a court finds that a hearing under this Act was precipitated or conducted for any improper purpose, the court shall allocate fees and costs of all parties for the hearing to the party or counsel found to have acted improperly. Improper purposes include, but are not limited to, harassment, unnecessary delay, or other acts needlessly increasing the cost of litigation.” 750 ILCS 5/508

Please quote this persuasive (not controlling) California appeals decision when requesting attorney’s fees from a rude counsel.

“Civility is an ethical component of professionalism. Civility is desirable in litigation, not only because it is ethically required for its own sake, but also because it is socially advantageous: it lowers the costs of dispute resolution. The American legal profession exists to help people resolve disputes cheaply, swiftly, fairly, and justly. Incivility between counsel is sand in the gears.

Incivility can rankle relations and thereby increase the friction, extent, and cost of litigation. Calling opposing counsel a liar, for instance, can invite destructive reciprocity and generate needless controversies. Seasoning a disagreement with avoidable irritants can turn a minor conflict into a costly and protracted war. All those human hours, which could have been put to socially productive uses, instead are devoted to the unnecessary war and are lost forever. All sides lose, as does the justice system, which must supervise the hostilities. By contrast, civility in litigation tends to be efficient by allowing disputants to focus on core disagreements and to minimize tangential distractions.” Karton v. Ari Design & Constr., 61 Cal.App.5th 734, 747 (Cal. Ct. App. 2021)

Can You Sue A Rude Attorney?

While you can report a rude attorney to the ARDC, you probably cannot sue them for being rude.

“The[re is a] defense of absolute privilege in a defamation action involving statements made by an attorney…The privilege [against defamation for statements by a lawyer] extends to out-of-court communications between opposing counsel, to out-of-court communications between attorney and client related to pending litigation, to out-of-court communications between attorneys representing different parties suing the same entities, to statements made during quasi-judicial proceedings, to communications necessarily preliminary to a quasi-judicial proceeding, and to out-of-court communications between an attorney and opposing parties in demand letters prior to litigation.” Atkinson v. Affronti, 369 Ill. App. 3d 828, 832 (Ill. App. Ct. 2006)

Only if the rude behavior has nothing to do with the pending litigation can the attorney possibly be liable for defamation.

“The only requirement [keeping attorney communication from being defamatory] is that the communication pertain to proposed or pending litigation.Golden v. Mullen, 295 Ill. App. 3d 865, 870 (Ill. App. Ct. 1998)

Even a loose connection to litigation is not defamatory, ex: “See you court tomorrow, you idiot!”

The pertinency requirement is not applied strictly, and the privilege will attach even where the defamatory communication is not confined to specific issues related to the litigation.” Golden v. Mullen, 295 Ill. App. 3d 865, 870 (Ill. App. Ct. 1998)

When You Can Actually Be Impolite In An Illinois Divorce

Despite all my admonitions above, there is a time where a lawyer can be impolite, abrasive or even overtly rude for strategic advantage: the deposition.

A deposition is “[t]he testimony of a witness taken upon interrogatories, not in open court, but in pursuance of a commission to take testimony issued by a court, or under a general law on the subject, and reduced to writing and duly authenticated, and intended to be used upon the trial of an action in court.” Black’s Law Dictionary (10th ed. 2014)

At a deposition, you can ask anything with little risk of interruption or objection. Furthermore, everything is written down. Questions must be answered under oath. All sorts of questions. Even rude questions.

Rude questions get rude answers. Sometimes a rude answer is exactly what you’ll want to show the judge at trial. Catching your witness off guard with an angry, unrehearsed line can give you a tactical advantage. Once the rude answer is on the record, the same question can be asked again (only this time, not-so-rudely) and the witness will have to provide the same rude answer or be impeached.

If asked a rude question in a deposition, the deponent’s lawyer should make one of the few objections allowed in a deposition, “form of the question.” Form of the question is an objection asking the questioner to restate their question for clarity (and politeness).

You cannot be too rude in a deposition, though. The deponent has the right to walk out if the behavior is deemed harassing.

“At any time during the taking of the deposition, on motion of any party or of the deponent and upon a showing that the examination is being conducted in bad faith or in any manner that unreasonably annoys, embarrasses, or oppresses the deponent or party, the court may order that the examination cease forthwith or may limit the scope and manner of taking the examination as provided by these rules.” Ill. Sup. Ct. R. 206(e)

If someone is being rude to you, it is not fun. Especially when you are in the vulnerable position of being in the divorce process. As I often remind my clients, “Do you want the money or do you want to be right?” Focus on the end result, your money and your children’s well-being, not on your hurt and anger.

If you would like to hire an attorney who knows the rules and, therefore, doesn’t have to resort to insults, harassment and intimidation, contact my Chicago, Illinois family law firm for a free consultation.

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Russell Knight

Russell D. Knight has been practicing family law as a Chicago divorce lawyer since 2006. Russell D. Knight amicably resolves tough cases while remaining a strong advocate for his client’s interests.

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