Civility in the Law
David Bilinsky mentioned it in passing back in August: there are calls for increased civility amongst lawyers. On September 24th, the Law Society of Upper Canada announced Civility Complaints Protocols Established.
According to the press release,
The [Civility Complaints] protocols provide a procedure for trial judges and justices of the peace to refer incidents of misconduct to the Law Society. They also provide for a new process whereby judges can request that lawyers receive mentoring from a panel of senior members of the bar. The mentor will meet with the lawyer to discuss the conduct in question and assist in his or her development as an advocate.
In addition, the LSUC will be running a Treasurer’s Civility Forum:
Treasurer W. A. Derry Millar is conducting a series of province-wide meetings to discuss the challenge of civility in the profession. The first two meetings are: Hamilton on October 20, 2009 and Sudbury on November 3, 2009. Meetings will be held from 5:00 p.m. to 7:00 p.m. and refreshments will be served.
Registration [PDF]
Additional dates have been set for other locations in Ontario. See: The Civility Challenge 2009-2010: Treasurer’s Forum With the Profession.
Additional Canadian links on civility in the law:
- 15. Civility – Civil Justice Reform Project (Ontario Ministry of the Attorney General)
- The Civility Challenge (Law Society of Upper Canada) – includes links to background documents
- Civility in the Legal Practice: Practical Tips – CBA PracticeLink (Canadian Bar Association)
- Uncivil Law (Canadian Lawyer Magazine)
- Principles of Civility for Advocates (The Advocate’s Society) – click on graphic for PDF document
Does this include civility to articled students and junior counsel? How about paralegals and legal assistants?
“Uncivil” behaviour is, in many cases, code for aggressive behaviour. Many (male) lawyers feel that aggression is an important part of their practice, and I’ve met a few senior lawyers who (and whose clients and staff) would benefit from an anger-management course.
Connie, although you refer in passing to the links within the “Civility Challenge,” it might be helpful to point out that two are of importance:
– the letter from Malcolm Heins, CEO of the Law Society to Chief Justice Smith of the Superior Court of Justice, setting out the manner in which complaints should be made by the SCJ; and
– the formal Protocol for Referral of Mentoring Requests from the SCJ and the Court of Justice.
Apparently, the protocol for referrals of complaints from the Court of Justice (as opposed to requests for mentoring, I gather) will be posted shortly.
On a personal note, I have to say that this strikes me as an attempt to force lawyers to abide by a set of manners that may once have been meat and drink to the ruling classes but which may be far less clear to some members of the bar today. There was a time when one of the rules of practice exhorted lawyers to behave like “gentlemen” — it may still exist — and saw no need to spell out what exactly that might have meant.
Are we certain that everyone is aware of exactly what we’re talking about when we refer to civility?
Tim, from the registration form: “Lawyers, paralegals and articling candidates are invited to a series of meetings across the province to participate in a forum on how we can address the civility challenge.” So, my guess is it does include at least civility to paralegals and articling students as well. And, I would hope that extends to support staff as well.
Simon, thank you for pointing out some of the specifics. Are you saying this will be a futile attempt on the part of the Law Society?
Simon, I think even today’s generation of not-necessarily-upper-middle-class lawyers knows the difference between a fair fighter and an SOB.
I think the lawyer who deliberately poured coffee over his opponent’s transcripts (and that was 25 years ago) did not need Ms Manners to tell him that was uncivil.
The ABA Journal asked its readers how they handled incivility. No one seemed troubled about identifying it.
Whether mentoring is the answer, I don’t know. OTOH it may be better than a simple reprimand without lesson content – not on how to be civil but on why, i.e. one is much more likely to win on the merits by being civil, and winning by being uncivil is a short-term strategy, like winning by being dishonest.
Is it really worse than 30 years ago? No doubt it is worse than 50 years ago, when the chances of seeing the other lawyer again, or even as being on the same side, were much greater.
Several random comments.
There is a certain Orwellian element to initiatives like the “Civility Complaints Protocols Established”. An analogy is the definition of bullying – it can be so all inclusive as to be tantamount to “you said something I do not like hearing”. Protocols of this type can and will become a kind of passive-aggressive tool in the legal process.
There is also an undercurrent in these initiatives of fundamental dislike for the adversarial system.
I doubt whether lawyers fifty years ago were more polite to each other than lawyers of today. In fact if you researched old transcripts (when available) you would probably find that in Court they went at each other with great vigour. The question I would pose is whether we are draining the passion out of the legal process and reducing lawyers to obsequious bureaucrats.
I suppose my understanding of the matter would be improved by knowing exactly what sort of complaints there have been, that is, what is alleged to be incivility. It occurs to me that the very protocols suggest there is some doubt about this form of misconduct, because they provide for mentoring, i.e. tutoring or guidance as to “right conduct.” Unless this is merely a code for “punishment by condescension,” it has to mean that the Society believes some lawyers don’t get it. Whatever that unpromulgated “it” is.
I should add that the protocol respecting mentoring explicitly leaves the choice of whether or not to accept mentoring up to the lawyer complained about:
Finally, let me provide a couple of further links, courtesy of the Society’s Director of Communications:
– Winter 2008 edition of the Ontario Lawyers’ Gazette, which focused on civility in the legal profession
– entertaining descriptions of the 10 kinds of litigators to avoid
I suspect it would be seen as too risky to give real life anecdotes as examples. The Winter 2008 edition of the Ontario Lawyers’ Gazette which you mentioned does shed some light on what incivility is:
Connie Crosby: your last comments really worry me, to wit:
“But equally pernicious are behaviours which are more difficult to prove, but lead to feelings of aggravation on the part of opposing counsel, clients and the judiciary, as well as increased costs, delays and frustration in the legal system.” This puts so-called “incivility” squarely into the “you said something I do not like hearing” category. Lots of things other counsel or judges say might aggravate me – you don’t agree with me when my argument is so logical, so perfect, my client is right, why that really irritates me, so now I am going to accuse you of incivility. But hopefully this won’t come to pass. It will be a very Kafkaesque environment when Law Society’s start trying to “discipline” behaviours which are “difficult to prove”.
David Brown: “This puts so-called ‘incivility’ squarely into the ‘you said something I do not like hearing’ category.”
Well, I can’t speak for Ms. Crosby, but I don’t know what would be pernicious about someone pointing out that I was wrong on the facts or law. Civility, though, (as I understand it) is not about what one says, but rather about how one says it.
Defamation law and Human Rights complaints seem to cover the kinds of behaviour that involve wrongful statements that are wrongful in and of themselves for reasons of fundamental justice or human dignity. Even so, there are other ways that someone can harm another without committing a tort or unfairly deploying their social power. If this ends up being caught under the rubric of “civility”, then so be it.
So, there is a significant and important difference between saying “you seem to have failed to consider the importance of X case,” and “you’re obviously an idiot because you haven’t considered X case.” There is a similar difference between taking advantage of your opponent in the ways that were described as “sharp practice” in the PLTC classes on professional responsibility I recently completed.
It may also be, as you suggest in your earlier comment, that there is an undercurrent of fundamental dislike for the adversarial system behind many complaints of incivility. During my articles, I’ve been involved in some civil litigation work, and the only clients who I would say actually think the adversarial nature of litigation has something to recommend it over less adversarial means are those clients who want to harm or hurt their adversaries. Those clients who are merely looking for a resolution of some dispute or claim seem to much prefer negotiation. And this accords with my normative experience (from before my inculcation into the legal mindset).
Thank you, Tim B.
David, I was merely quoting what appeared to be some kind of definition that has been given in response to Simon Fodden’s previous comment, and did not state whether I agreed or disagreed with the quote. I was actually surprised that more overtly aggressive behaviour (such as shouting) was not mentioned. It does all seem a little too vague, doesn’t it?
Connie et al:
Well I agree with David Brown. There are lawyers who seek not only every remedy available to them under law, but seek to use protocols and timing to try to pummel their opponent. I am speaking of those lawyers who set down applications regardless of the vacation and/or other plans of the other lawyer – who insist on strict adherence with every minimum time deadline, regardless of the other lawyer’s schedule and trial load – who do not return phone calls placed to them etc.
There is much that can be improved in this regard, in my opinion. Civility is the grease that makes life easier. Lawyer who choose not to use that grease simply make life more difficult for all concerned, in the belief that this is advocacy for their client. I, for one, disagree.
Carry on the fight, Connie!