Does Civility Matter?

I once wrote an article titled “Does Civility Matter?” I don’t regret the article, but I regret the title. I regret it because it suggests that I oppose civility as an ambition or virtue of the good lawyer. I don’t. My point (developed further in a more aptly titled 2012 paper) was rather that when law societies regulate lawyer civility they either regulate something they shouldn’t (politeness) or they regulate something they should but in the wrong way (treating ethical violations generically as incivility rather than precisely as specific breaches of a lawyer’s duties). I still hold those positions. But lawyer civility—whether it matters—is not just about how we regulate lawyers. It is also about civility as a virtue of the good lawyer, as a manner of legal practice to which every lawyer ought to aspire. So when I asked, “Does civility matter?” and then argued that civility regulation has negative and perverse effects, I didn’t answer the question my title posed.

My regret though is not mere annoyance at myself for self-indulgently choosing a pithy (and colon less!) title over an accurate one. It’s rather because in the decade since I published that paper the risks associated with the loss of communal and cultural commitments to social values like honesty, civility and integrity seem far more profound than they did then; dishonesty, contempt and cruelty have a prominence in public life and in politics that I never imagined. I consequently feel obliged to try and answer the question I didn’t then: does civility matter? Or to be precise, considered apart from the issue of regulating lawyers for incivility, is civility a quality of good lawyers?

At an intuitive/instinctive level the answer seems obviously to be yes. After all, what position is more effectively advanced by arguments “riddled with peevishness and distain”, a table detailing “Annoying and Meaningless Clichés and Phrases” used by the opposing party, and both sides being “bullying, arrogant, obstinate, and sanctimonious” (Price v Lundbeck 2018 ONSC 4333, footnote 2). Reading Justice Perrell’s judgment in Price v Lundbeck inevitably gives the impression that the conduct of counsel impeded their presentation of the case rather than assisting it (e.g., “While I was little helped by the competing arguments of the parties…” (para. 122)). Moreover lawyers often work non-adversarially, to resolve disputes or assist their clients to achieve common goals. In those contexts incivility seems likely to be counter-productive.

But when you consider the issue more deeply, it becomes more challenging to explain what civility is, or what sort of behaviour is properly described as “uncivil”. Which in turn complicates the ability to claim civility is a virtue that lawyers ought to pursue.

Consider the Supreme Court’s recent judgment in Groia v Law Society of Upper Canada 2018 SCC 27. The Court in Groia reversed the sanction imposed on Joe Groia for incivility in his defence of John Felderhof while simultaneously declaring the centrality of civility to a lawyer’s professional obligations:

The duty to practice with civility has long been embodied in the legal profession’s collective conscience—and for good reason. Civility has been described as “the glue that holds the adversary system together, that keeps it from imploding”… Practicing law with civility brings with it a host of benefits, both personal and to the profession as a whole. Conversely, incivility is damaging to trial fairness and the administration of justice in a number of ways (para. 63)

The Court emphasized that “[t]rials marked by strife, belligerent behaviour, unwarranted personal attacks, and other forms of disruptive and discourteous conduct are antithetical to the peaceful and orderly resolution of disputes we strive to achieve” (para. 2).

It went on to give some specific examples of uncivil conduct: “Overly aggressive, sarcastic, or demeaning courtroom language” (para. 64); “constant allegations of impropriety”; (para. 65); “Disparaging personal attacks from lawyers” (para. 66); and, “Inappropriate vitriol, sarcasm and baseless allegations of impropriety” (para. 67). It also endorsed the “multifactorial, context-specific approach” adopted by the Law Society Appeal Panel for deciding when a lawyer has committed incivility (para. 36).

When you boil it down, what the Court essentially said was that incivility has harmful effects on the justice system, that incivility generally involves being really rude and/or hostile, and that a contextual approach is necessary to identify whether incivility warrants sanction for professional misconduct. That’s fine as far as it goes. It was certainly sufficient for the court to decide what to do with the Law Society’s decision. But at a normative level it doesn’t amount to much. It tells us that incivility has bad effects, and gives some examples of what incivility can look like, but it doesn’t tell us conceptually the wrong incivility does or how, conceptually, we distinguish civil from uncivil behaviour.

This is particularly so when we look at some of the Court’s examples in light of the work that lawyers do from time to time. This summer I’ve had the opportunity to read Adam Hochschild’s remarkable and moving 1998 book King Leopold’s Ghost: A Story of Greed, Terror and Heroism in Colonial Africa. At one point Hochschild describes a defamation suit brought against an African-American missionary, the Rev William H Sheppard, who had worked to expose the grotesque cruelty occurring in the Congo, and the advocacy of Sheppard’s Belgian lawyer Vandervelde. Another missionary observing the trial said of Vandervelde: “His speech was a marvel of eloquence, invincible logic, burning sarcasm, and [a] pathetic appeal for justice to be done not only for us Missionaries but especially for the native people” (at 264, emphasis added). After reading the atrocities that Sheppard and others worked to expose—torture, brutality, murder and ultimately the death of half of Congo’s population—I can imagine very little that Vandervelde could have said that would have been uncivil in challenging the case against his client. Sarcasm, invective, allegations of impropriety, disparaging personal attacks, overly aggressive conduct—each of those things may indeed have been the only accurate and ethical way to communicate the moral and legal outrage of which the case against his client was a part.

Assuming for the moment that I am right, that there are circumstances in which sarcasm and invective and so on are appropriate tools for a lawyer, how do we know what those circumstances are? And what they are not? What norms and values does civility protect that we can use to distinguish good invective from bad?

This analogy might clarify what I mean by the role of norms and values. When lawyers and judges talk about procedural fairness, it’s normal for us to describe procedural fairness as the way in which our legal system protects the autonomy and dignity of people the law affects. Conceptually procedural fairness requires each person to be heard, and to know and meet the case against her, because those things are necessary to ensure respect for a person’s autonomy and dignity (and to ensure some other things too, like accurate decision-making). We then distinguish between fair and unfair procedures by looking at whether they accomplish what a good procedure ought to accomplish. We do not say, “procedural fairness has good effects, and here are some examples of unfair procedures”. We instead consider whether a particular procedure allowed someone to be heard and to make his case in light of what was at stake—whether he was treated with respect. And if we did look at procedural fairness in a more limited way, I think it’s fair to say that we would have a much more difficult time understanding why procedural fairness matters or what it requires in the varying cases the legal system must address (Me on procedural fairness here (paywall))

While this analysis is exploratory and tentative, I do think it is possible to advance a similar conceptual basis for civility as an essential quality of the good lawyer. Specifically, I think lawyers must aim for civility for reasons very similar to those that underlie procedural fairness, namely, to protect human dignity. Lawyers advocate for their clients, and they do so in significant part to protect their clients’ dignity, to ensure their clients receive the entitlements that flow from the law’s integral protection of human dignity. In doing so, however, lawyers ought not to act in ways that violate the dignity of others, that degrade, humiliate or treat another person as unworthy of respect or consideration.

Human dignity is a notoriously tricky concept. It has theological, jurisprudential and philosophical origins, which offer distinct perspectives, and its meaning has evolved over time. My exploration here refers only to the philosophical idea of human dignity, and even more narrowly to that idea as articulated by Jeremy Waldron. Waldron posits dignity as the status and quality afforded to each of us by virtue of our humanity and our agency:

Dignity is the status of a person predicated on the fact that she is recognised as having the ability to control and regulate her actions in accordance with her own apprehension of norms and reasons that apply to her; it assumes she is capable of giving and entitled to give an account of herself (and of the way in which she is regulating her actions and organising her life), an account that others are to pay attention to; and it means finally that she has the wherewithal to demand that her agency and her presence among us as a human being be taken seriously and accommodated in the lives of others, in others’ attitudes and actions towards her, and in social life generally (“How Law Protects Dignity” (2012) 71 Camb LJ 200 at 202).

He argues that dignity in this sense requires that we treat each other with respect, as if we are each of high rank and status—“Every man a duke, every woman a queen, everyone entitled to the sort of deference and consideration, everyone’s person and body sacrosanct, in the way that nobles were entitled to deference or in the way that an assault upon the body or the person of a king was regarded as a sacrilege” (“Dignity, Rights, and Responsibilities” (2011) 43 Ariz St LJ 1107 at 1120). To violate someone’s dignity is to treat them as unworthy of that sort of respect, as less than human, to degrade, dehumanize or humiliate them. We can of course appraise people’s worth in light of their “merits, their virtues and vices, their crimes, their views, and so on”, but we cannot deny their “invariant” entitlement to respect as persons (“Dignity and Defamation: The Visibility of Hate” (2010) 123 Harv L Rev 1596 at 1629).

My argument is that civility is a necessary quality of the good lawyer because being an advocate cannot rightfully include the dehumanization and degradation of other people (and as Waldron notes, speech can be dehumanizing and degrading “Dignity and Defamation” at 1613). Indeed, as Waldron also notes, a structural feature of the rule of law, and in particular the law’s procedural protections, is that it ensures respect for dignity, and the treatment of others as worthy of respect. If lawyers advocate in a manner that does not do so they undermine what the law is designed to achieve. They also undermine the ability of the legal system to assure the broader community that the legal system is a place where people will receive respect and not be degraded or humiliated (a point Waldron makes in relation to hate speech, “Dignity and Defamation” at 1623). This is how, as the Supreme Court observed, incivility can harm the administration of justice. Further, the examples given by the Supreme Court may not always involve denial of other people’s humanity, but they are the sorts of things that create a risk of doing so. Sarcasm generally involves asserting that another person (or their position) is so stupid that you can just make fun of it, instead of engaging with it. That tends to correlate with speech that is degrading or humiliating.

Disrespectful speech can be legitimate. When a person—like a lawyer—has the responsibility by virtue of her role to challenge bad conduct, when what she says is truthful and accurate, and when a person’s conduct deserves harsh criticism—such as persons trying to hide their complicity in the Congo atrocities—she is not uncivil by virtue of making harsh and disrespectful statements in the discharge of her role. But where a lawyer merely disparages or humiliates another person she is uncivil and has done something a good lawyer ought not to do. Civility is a virtue to which a lawyer ought to aspire. But like all virtues (and in accordance with Aristotle’s virtue ethics) what it actually requires and imposes on the lawyer’s conduct in any specific case must be assessed through wisdom and judgment.

As I noted at the outset, none of this diminishes the concerns I have with civility regulation. To some extent it reinforces those concerns by illustrating how difficult it can be to distinguish appropriate criticism from disrespect. It may though also suggest ways in which we can—and do—regulate civility most safely and effectively: by designing specific obligations for lawyers that capture the most common types of lawyer incivility. I am thinking for example of our rules against abusive and harassing cross-examination. Those specific rules are easier to enforce, they provide useful direction to lawyers and they eliminate an otherwise tempting opportunity for lawyers to degrade and humiliate a participant in the legal system.

Regardless of those regulatory challenges however this analysis supports the conclusion that civility matters, and that as lawyers we do need to frame our arguments and advocacy through the lens of respect for the inherent worth and value of those with whom we are dealing. Civility in that sense ought to be our individual and collective aspiration, and what we expect of one another.