Professional courtesy is an incredibly important concept within the legal profession. Judicial resources are often stretched thin, so it is important for adversaries to work together on certain matters and make it easier for matters to be handled. This often includes tactics like agreeing to adjournments, emailing courtesy copies of documents, and other favors that do not impact the substance of a matter. Most lawyers want to be courteous since it is the right thing to do, and they know that they may need a courtesy later on. As a result, they are inclined to extend courtesies when they can. However, some lawyers try to pressure lawyers to waive substantive rights as an alleged matter of professional courtesy when professional courtesy is inapplicable to the matter.

Earlier in my career, I filed a motion to dismiss several causes of action in a complaint that I believed should not have been pled in the first instance. The causes of action did not have factual support and could not be advanced due to the circumstances of the case. My adversary called me up and asked that I withdraw my motion to dismiss in its entirety as a matter of professional courtesy.

I did not think that professional courtesy should be invoked in this instance, since this situation involved substantive rights and not minor favors or procedural matters. In the end, I told my adversary that I would withdraw my motion to dismiss if the other lawyer withdrew one of the causes of action in the complaint. This was the cause of action that was really inappropriate for this attorney to advance in the complaint. My adversary did not agree to withdraw this cause of action, and I did not gaslight this lawyer into thinking that he was being discourteous like he did to me.

Ultimately, the court dismissed the cause of action that I asked my adversary to withdraw. Clearly, I would have sacrificed a substantive right of my client if I had believed it was “professional courtesy” to withdraw my motion to dismiss. In addition, if my adversary had just gone along with my suggestion of withdrawing that cause of action in exchange for me withdrawing the motion to dismiss, the case would not have been delayed for months while motion practice unfolded.

Another time in my career, I filed a motion to extend the filing of a document which would end discovery and cause the case to be put on the trial calendar. My adversary did not indicate they would oppose the motion, and I assumed it did not matter much to my adversary whether the case was delayed so discovery could continue. Then out of the blue one day, my adversary emailed me requesting that I withdraw the motion out of professional courtesy. The adversary did not include rationale for why this extension was inappropriate and why the lawyer had not opposed the motion earlier.

Of course, since the motion was meritorious, it was improper for my adversary to invoke professional courtesy to withdraw the motion. Indeed, the adversary could have filed opposition papers in response to the motion if they really felt aggrieved by the prospect of consolidation. Invoking the concept of professional courtesy simply allowed my adversary to cheaply strengthen his request for me to withdraw the motion without the adversary fielding arguments in opposition papers.

All told, lawyers have a weird tendency to gaslight each other, which includes making arguments that the lawyer knows or should know lack merit. However, this should not extend to improperly invoking the concept of professional courtesy. Doing so cheapens the concept of professional courtesy which in the proper circumstances is extremely helpful to smooth operations within the legal profession.

Jordan Rothman is a partner of The Rothman Law Firm, a full-service New York and New Jersey law firm. He is also the founder of Student Debt Diaries, a website discussing how he paid off his student loans. You can reach Jordan through email at jordan@rothman.law.

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