Civility in unprecedented times
Lawyers have the power and responsibility to find common ground and the path to civil conversation.
Authors from a variety of backgrounds and perspectives have identified our present moment as one rife with pointed efforts to sow division and challenge our ability to find common ground. Finding that common ground, and a path to a civil conversation is often a core part of what we lawyers do.
After all,
"It is not in the best interests of the justice system, our clients, and ourselves to express ourselves in a fashion which promotes acrimony or intensifies the stressfulness or the difficulty of... already stressful and difficult circumstances.
Public writings or comments which promote such acrimony or denigrate others in the justice system have a negative effect upon the system as a whole.” (Law Society of BC v Greene [2003])
The Commentary to Rule 7.2-1 of the Code of Conduct echoes these sentiments. The Code recognizes that it is in the public interest for matters to be “dealt with effectively and expeditiously,” and that civility between lawyers contributes to this effort. The commentary also notes that “personal remarks or personally abusive tactics interfere with the orderly administration of justice.” A lawyer should help clients find calm and constructive approaches to achieve the best possible outcomes for them within the legal system. Treating others with respect is an effective way to accomplish that objective.
Lawyers are advocates for their clients. Strong advocacy protects clients’ dignity and empowers them to realize their rights and responsibilities. Undermining the dignity of others undermines the effort to protect dignity and the rule of law. Being civil is the right thing to do. It makes us more effective at our jobs and it’s healthier for the profession. Lawyers should be careful about what they say and how and when they say it.
This is all easy to say (or write). When steeped in conflict-rich environments on virtual platforms and in person, it can seem natural to let frustration give way to a choice word, nasty email, LinkedIn lament, or Reddit rant. This is not a new phenomenon, though new realities may make it more tempting.
As early as 2011 a lawyer was disciplined for blog posts chastising another lawyer. The lawyer was concerned about another lawyer’s efforts to take advantage of people by using allegedly predatory demand letters. There may have been a need to do something about the other lawyer’s demand letters. However, the blog post fell short of our professional standards to treat other lawyers with civility.
The blog post identified the author as a lawyer and stated that the lawyer behind the impugned letters was “the kind of lawyer that gives lawyers a bad name,” and “I hate these sleazy operators.” The author also wrote to the other lawyer, inviting them to stop sending the impugned demand letters, called the letters “frankly stupid,” and told the other lawyer to “save the postage in future and become a real lawyer instead.”
Upon review of the blog author’s correspondences, it’s clear that he was frustrated with mistreatment of his own clients who had received the impugned letters and concerned for others who lived in his town and received similar letters. However, the author’s comments and correspondences were harsh, unnecessary and hurtful.
So, what’s a lawyer to do?
Lawyers should start by considering their communications from the perspective of someone on the receiving end. Before saying something, hitting “send”, or posting something online, lawyers should consider how the person receiving it might feel. If you’re not sure how your recipient(s) will feel, call a trusted senior counsel or a Practice Advisor for another perspective.
A Practice Advisor can also help if you (or your clients) are on the receiving end of persistently uncivil behaviour. In addition to a confidential conversation, the office of the Practice Advisor may be able to support moving your work with that lawyer in a more constructive direction through a joint call with the other lawyer.
If, despite your efforts at civil conversation, another lawyer persists in acting in breach of their ethical obligations, consider reporting the other lawyer to the Law Society. While a report may increase acrimony for a time, it is far less likely to undermine public trust in the profession than a public post. Of course, if there is concern about increased acrimony arising from the confidential conduct complaint process, publicly airing those grievances is at least as likely to increase the level of acrimony and carries added risks. Such approaches to addressing civility may end up having a negative impact on your own reputation, instead of just the other lawyer.
Sometimes it is difficult to engage in constructive dialogue. However, lawyers should always push themselves to rise to the challenge. We each have the power, and the responsibility, to communicate carefully and to protect the civil dialogue that enables effective legal work.
