Public discourse and civility lies at the heart of our democracy and our legal profession in Canada, the U.S., the UK, and Australia. Unfortunately there appears to be less civility in society generally today, less courtesy, fewer manners. In the political arena and in public discourse, the rhetoric is harsher and the decibels are higher, and they too frequently overshadow the substance of debates. [1]

According to custom, the government and opposition benches in the British House of Commons are separated by a length equivalent to “two swords and one inch.” The practice harks back to a time when members of Parliament regularly carried blades. … The damage caused by our incivility may not be physical, but it is no less dangerous to democracy. And unlike our forebears who had the “two swords and one inch” rule to compel their good conduct, we operate without constraint, perpetuating a culture of incivility.

– Cynthia M. Allen[2]

Overview

The principle of civility is a foundation for democracy and the rule of law.^[3] Supporting civil discourse is an essential component of our legal system and our democracy.

The legal profession plays an important role in society, and not surprisingly, civil behaviour is a core element of lawyer professionalism.^[4] Civility is central to the ethical and public-service bedrock of the legal profession. Accordingly, awareness and understanding of ethics and professional responsibility is of the utmost importance for every lawyer, whether in private practice, government service, business, non-profit entities, or other areas where lawyers use their skills and knowledge.

As one of the guardians of the rule of law that defines the social and political fabric in our countries, lawyers must appropriately embody civility in all they do. The role played by the legal profession is crucial to the support of civil conversation. Lawyers as a profession must set a high standard for civil discourse, acting as an example for our society in resolving differences constructively and without disparagement of others. It is important how lawyers conduct themselves day in and day out as they engage with clients and communities.^[5]

There is currently today a struggle to support civil conversation in our diverse, global, and digital world. People have different views on matters of public concern, and it is the engagement of that diversity that is the political process. Although we have stumbled before in our support of a deliberative democracy in which all citizens can discuss and debate the issues of the day, for the most part over the years we have practiced civil conversation: listening as well as speaking, respecting different — even conflicting and spirited — points of view, speaking the truth and citing evidence, and maintaining a genuine openness to changing one’s mind.[6]

Civility is not about agreement, but how we conduct ourselves in the midst of disagreement.

As noted by many legal commentators, there appears to be a continuing decline of civility and professionalism in the legal profession.[7] This is a microcosm of our society, as exemplified most recently in “the ugly political discourse of the U.S. election that did not end on Election Day – and in many ways it has gotten worse, turning into a social crisis”.[8]

Destructive discourse can have negative consequences for society. It fosters polarization rather than community, enmity and contempt rather than understanding and tolerance, and alienation instead of involvement. It limits the potential for problem-solving, as fewer voices and ideas are heard and factored into decision-making.  It is well-established that democracy cannot function effectively under these conditions. Without a social structure that supports tolerance, a basic level of trust, and a spirit of community, political institutions become hollow. Government becomes less efficient, effective, and responsive. And where government is less responsive, citizens are more likely to respond to conflict with violence rather than rely on civil institutions and the rule of law.[9]

Lawyers are particularly well suited to help address this problem, and as noted by one legal commentator, have a unique capacity to influence the character of public discourse. Lawyers have the gravitas, and often the platform, to be heard. Lawyers also have a choice: they can encourage a destructive tone that results in rancor, divisiveness, and public decision-making by power rather than reason, or lawyers as a profession can encourage the use of language and tone that is less divisive and more conducive to substantive discussion and rational decision-making. By “encouraging more constructive civil discourse, we honor the profession’s most noble call.”[10]

Law is the glue that binds society, and lawyers are the artisans that apply it.

– Mark Cohen[11] 

Public Discourse and Civility

Our democratic society has strongly championed the principle of civil conversation.[12]  The concept of civility is broad.  In its earliest use, the term referred to exhibiting good behavior for the good of a community. The early Greeks thought that civility was both a private virtue and a public necessity, which functioned to hold the state together. Some commentators equate civility with respect. In effect, civility is a behavioral code of decency or respect that is the hallmark of living as citizens in the same country.[13]

I hope for an America where we can all contend freely and vigorously, but where we will treasure and guard those standards of civility which alone make this nation safe for both democracy and diversity.

– Edward Kennedy

One of the most important educational, political, and social issues of the day is how best to have a civil conversation in a democratic society. Our future depends on this essential process: citizens gather, listen to each other, debate, make up their minds, and determine a course of action.[14] Civil conversation allows all citizens to contribute in a true democracy. Critical thinking and communication are closely linked to basic social values that we also equate to good citizenship: respect for others, listening, and a willingness to risk changing our minds. Through civil conversation, we translate our highest values into everyday living and doing. In a democracy civil discourse is a life skill, a foundational principle of community, and the engine for politics, economics, law, and culture.[15]

Unfortunately of late, reason, discussion, and orderly debate within our society all too often appear to be giving way to invective, distortion, and gamesmanship. Once the art of compromise and statesmanship, political discussion is now too commonly a battle between extremes, where power, dogma, or self-interest – not reason – prevails, and where closed minds simply seek to impose a point of view rather than listen respectfully to others and work with the legitimate issues they raise.[16]

As noted by legal and political commentators, civility continues to be a societal issue, and we appear to be losing sight of civility in government, politics, the law, and our day to day interactions. Discussion and dialogue is taking a back seat to ‘winning’ at any cost. There appears to be a loss of thoughtful discussion between people of differing views.[17] The perception is that civility has declined, and a recent report entitled Civility in America seems to support this, finding that 95 percent of Americans believe that incivility is a problem, and 70 percent believe it has reached crisis levels.[18] In the U.S., the recent presidential election has been noted for its polarizing and inflammatory rhetoric.[19] With respect to the UK, a media headline noted earlier this year that it was only the tragic death of a British MP that “brought civility to the Brexit debate”, but that “it won’t last”.[20] In Canada, the 2011 general election “was the most aggressive in rhetoric and in the use of more personalized attacks”, and in 2015 and 2016 female politicians in Alberta have been threatened.[21] It has been reported that “nastiness is on the rise in Canada’s public service and the federal government should consider a ‘civility’ policy”.[22]

Some commentators suggest that incivility is possibly “becoming the new normal in our society” – stating that the key to a positive engaging culture requires leadership setting the tone for meaningful, respectful interaction.[23]  In this regard, it is generally accepted that values drive behaviors, and behaviors drive outcomes. The culture of a society is the expression of its values in action; and to be successful it is up to those who shape it—in particular its leaders.

Many of us think that, no matter what nook or cranny of the republic we examine, we are not doing a great job of keeping our conversations civil in America today. From TV talk shows where opponents out-shout each other, to blogs where anything can be posted as truth without supporting evidence or facts, to political debates that make a mockery of persuasive rhetoric, we are awash (and perhaps drowning in) uncivil conversation.

– Rebecca S. Chopp[24]

Leadership and the Legal Profession

The legal profession plays an important role in society and our government,[25] and civil behaviour is a core element of lawyer professionalism in Canada, the U.S., the UK, and Australia.[26]

As the guardians of the rule of law that defines the social and political fabric in our countries, lawyers must appropriately embody civility in all they do. Not only do lawyers serve as representatives of their clients, they serve as officers of the legal system and public citizens having special responsibility for the quality of justice. To fulfill these overarching and overlapping roles, lawyers must make civility their professional standard and ideal.[27]

Justice Cronk, of the Ontario Court of Appeal, has stated that the requirement of professionalism for all lawyers – which includes zealous advocacy accompanied by courtesy, civility and good faith dealings – secures the “nobility” of the profession in which lawyers are privileged to practise.[28] As such, lawyers are uniquely positioned as leaders and role models, and may influence the behaviours, attitudes and thoughts of others within our society. Acting professionally, the legal profession and its lawyers can influence and inspire a positive direction critical to our society, to our citizens, businesses, political and governmental institutions, and communities. Many challenges that lawyers face involve questions of values.  At this time in our history, we need our lawyers to embrace civility and courtesy, appropriate advocacy, and positive qualities of leadership – “it is precisely when a lawyer’s equilibrium is unduly tested that he or she is particularly called upon to behave with transcendent civility”.[29]

Supporting civil discourse is an important component of our legal system and our democracy. Leadership matters:[30]

“Lawyers are particularly well suited to help address this problem. We are leaders throughout our society, and as such have a unique capacity to influence the character of public discourse. We set the tone for the debate with the advice that we give to clients, friends, … and others who seek it. We have the gravitas, and often the platform, to be heard. Just as we have a voice, lawyers also have a choice: We can encourage a destructive tone that results in rancor, divisiveness, and public decision-making by power rather than reason. Or we can encourage the use of language and tone that is less divisive and more conducive to substantive discussion and rational decision-making. By encouraging more constructive civil discourse, we honor the profession’s most noble call, to statesmanship.”

The necessity for civility is relevant to lawyers because they are the living exemplars – and thus teachers – everyday, in every case, and in every court, and their worst conduct will be emulated more readily that their best.

– Chief Justice Warren Berger, United States Supreme Court

An articulated need for more leadership is due, in significant part, to an apparent deficit of effective and ethical judgment and decision-making on Wall Street or Bay Street, and in government.^[31] No occupation in the western world supplies a greater proportion of leaders than the legal profession. Outside of their leadership role as positive role models in our society, lawyers also sit at the helm of a vast array of powerful law firms, businesses, governmental, and non-profit organizations. Even when they do not occupy top positions in their workplaces, lawyers lead teams, committees, task forces, and charitable initiatives.[32]

Duty of Courtesy and Civility: cornerstone of legal practice

The individual lawyer is the guardian of the tone of interactions that will serve both the client and the legal system well. Clients may not understand these limits. Many clients are under the misconception that because they hired the lawyer, they have the power to dictate that lawyer’s conduct. It falls to the lawyer to manage and correct that expectation and to let the client know the lawyer is more than a “hired gun.” In practice, that often means refusing a client’s demand to act uncivilly or to engage in sharp or unethical practices with other parties in a case or matter.[33]

The duty of zealous advocacy must be jealously protected and broadly construed.  But it is not absolute and must not be abused.  The advocate’s duty of professionalism encompasses both the duty of zealous advocacy and the duty of courtesy and civility.  Lord Reid’s famous statement in Rondel v. Worsley[34] captures this principle well:[35]

“Every counsel has a duty to his client fearlessly to raise every issue, advance every argument and ask every question, however distasteful, which he thinks will help his client’s case.  But, as an officer of the Court concerned in the administration of justice, he has an overriding duty to the Court, to the standards of his profession, and to the public, which may and often does lead to a conflict with his client’s wishes or with what the client thinks are his personal interests.  Counsel must not mislead the Court, he must not lend himself to casting aspersions on the other party or witnesses for which there is no sufficient basis in the information in his possession…”

The duty of zealous advocacy is coextensive with the lawyer’s duty to act with courtesy, civility and in good faith.  Both duties are imperatives of true professionalism by advocates. The crucial point is that lawyers, clients, and the public have a legitimate right to expect that the advocate’s duty of zealous advocacy will be tempered by the overriding duty to adhere to all the standards of the profession, including the duty to act with courtesy and civility and in good faith.[36]

[C]ounsel who are the target of professional vilification by their opponents are not obliged to simply ‘deal with it’.  The often misused adage that “a hard fought trial is not a tea party” does not license abusive and unprofessional behaviour towards opposing counsel.  

– Justice Cronk, Ontario Court of Appeal[37]

Although civility is central to the ethical and public-service bedrock of the legal profession, substantial evidence continues to point to a steady rise in incivility within the legal profession. It is problematic to pin down the incidence of incivility and unprofessional conduct because incivility, without some associated violation of the ethical rules, historically has not been prosecuted by the regulatory authorities. Thus there is no good systemic data on incivility’s prevalence. There have been countless writings, however, about widespread and growing dissatisfaction among judges and established lawyers who bemoan what they see as the gradual degradation of the practice of law, from a vocation graced by congenial professional relationships to one stigmatized by abrasive dog-eat-dog confrontations.[38]

Although our legal profession has witnessed progress in opening its doors wider to minorities and others who were previously excluded, this age has also opened its doors to discourteous solicitors and the “Rambo litigators”[39] which has spawned a generation of lawyers, too many of whom think they are more effective when they are more abrasive. When it comes to issues of civility, professionalism and common courtesy, there has been an unfortunate sea change in the culture of the profession. We need to ask why it has happened and how it can be turned back.[40]

A recent case indicates that English lawyers are not immune to “Rambo” tactics. … there is a considerable body of case law both in Australia and overseas in which practitioners have been disciplined for conduct involving rudeness and discourtesy. What this body of case law reveals is that it is clearly unacceptable for a practitioner to behave in a way that violates a professional conduct rule mandating courteous communications. – Josephine Stone, Office of the Legal Services Commissioner (NSW)

Lawyers posit a range of theories on where and against whom incivility is most often directed. Some believe it’s more prevalent in large cities. Others say they’ve seen entirely too much directed at young female associates, often to gain a tactical advantage. Yet the more important question may be why incivility may be becoming the norm. Lawyers blame incivility on:[41]

• The transformation of the legal profession from a “small profession, characterized by public service ideals, into a large, highly competitive business, characterized by the pursuit of profits”.
• Over-the-top portrayals of lawyers on TV and in films who succeed through rudeness and aggression. (i.e. mixed messages from law school and the media which portrays lawyers in movies, television and fiction as much more cutthroat and cutting corners than appropriate).
• Inexperienced lawyers and a lack of mentoring. (i.e. young lawyers are hungry for information on the proper balance between advocacy and civility).
• The fuzzy line between aggressive advocacy and rudeness.
• The broad platform provided by today’s technology, coupled with the ability to act anonymously online.
• Society’s current, fractious public discourse.

Discussion of the problem tends to dwell on two areas: (a) examples of lawyers behaving horribly, from which most of us easily distinguish ourselves; and (b) possible causes and justifications of that behavior – rather than possible solutions. Traditional media and social media carry countless accounts of lawyers screaming, using expletives, or otherwise being uncivil. The data that is available tends to confirm that uncivil lawyer conduct is pervasive. The vast majority of practicing lawyers experience unprofessional behavior by fellow members of the bar, reported as experiencing rudeness – described as sarcasm, condescending comments, swearing, or inappropriate interruption. An even higher percentage of respondents reported being the victim of a complex of more specific behaviors loosely described as “strategic incivility,” reflecting a perception that opposing counsel strategically employed uncivil behaviors in an attempt to gain the upper hand, typically in litigation. The complained-of conduct included, for example, deliberate misrepresentation of facts, not agreeing to reasonable requests for accommodation, representing their client or employer in a “kill or be killed” fashion, attacking integrity of another lawyer without evidence or foundation to gain an advantage, indiscriminate or frivolous use of pleadings, and inflammatory or discourteous correspondence and/or communication.[42]

Bar organizations and disciplinary bodies are flooding the zone with training. Capacity to act in a manner that engenders respect for the law and the profession – in other words, civility – is a requirement for receiving a law license and, in some jurisdictions, for retaining the privilege of practicing law. It follows that aspiring and practicing lawyers should be disabused of the notion that effective representation ever requires or justifies incivility.[43]

Mr. Justice Berger, a former Chief Justice of the Supreme Court of the U.S., specifically noted that the legal profession must not “forget the necessity for civility as an indispensable part – the lubricant – that keeps our adversary system functioning. If we want to protect that system we must firmly insist on the lubricant”.[44]

Awareness and understanding of ethics and professional responsibility is of the utmost importance for every member of the legal profession in Canada, the U.S., the UK and Australia. It guides a lawyer’s daily conduct, ensures compliance with relevant legislation and codes of conduct, safeguards against insurance claims or disciplinary action, and maintains a positive relationship with clients, and a healthy and positive reputation in the community and our society.[45] “Civility is more than just good manners:[46]

“Civility … is an essential ingredient in an effective adversarial legal system such as ours. The absence of civility would produce a system of justice that would be out of control and impossible to manage: normal disputes would be unnecessarily laced with anger and discord; citizens would become disrespectful of the rights of others: corporations would become irresponsible in conducting their business: governments would become unresponsive to the needs of those they serve; and alternative dispute resolution would be virtually impossible.”

Whatever the causes, the first step toward a real remedy to the incivility pandemic is recognition of the deeply destructive impact of uncivil conduct on individual lawyers who engage in it, on those subjected to it, on the bar as a whole, and ultimately on the system of justice and our society – whether in Canada, the U.S., the UK, or Australia. It begins with recognition that civility is, and must be, the cornerstone of legal practice.[47]

Whether in private negotiation or public discourse, in the legislative process or the exchanges among leaders, in the debate of parties, or the relatively simple matter of a trial in the courts, the necessity for civility is imperative.

– Chief Justice Berger

Conclusion

The needed rebirth of civility, at a critical juncture in the evolution of the legal profession, should be seen by lawyers not as pain, but as gain. Technology and globalization are facilitating greater client influence and requiring increased transparency; civil behavior is more important than ever. Not only does our profession require us to be civil, and it is simply the right thing to do, but professionalism and leadership among lawyers is required by our democratic institutions to survive and thrive within a civil society bound to the rule of law.[48]

Civility is not merely aspirational.  In most jurisdictions – in particular in Canada – it is a codified duty of professional conduct enshrined in Rules of Professional Conduct and, as repeatedly confirmed by our Courts, an essential pillar of the effective functioning of the administration of justice.  In Ontario, Canada, at least, its necessity and importance in our legal system is now settled law.[49]

Civil behaviour is a core element of lawyer professionalism. As the guardians of the Rule of Law that defines our social and political fabric, lawyers must embody civility in all they do – lawyers have a unique role to play in the process and have a corresponding obligation to society at large. Not only do lawyers represent their clients or employers, they serve as officers of the legal system, and societal role models. In this light, lawyers must make civility their professional standard and ideal.[50]

Civility is not a sign of weakness.

– John F. Kennedy

In nearly every aspect, the ability for the legal profession and lawyers to inspire others within our society is critical. Today is a wonderful time to be blessed with legal training and to be able to go out and take on the enormous challenges of a difficult world—with an aspiration to lead tempered by humility at the complexity, difficulty, discipline, and self-sacrifice inherent in the task.[51]

The qualities of civility, and ethical and principled leadership matters. Supporting civil discourse is an important component of our legal system and our democracy.

 Eric Sigurdson

Endnotes:

[1] R. Wayne Thorpe (Chair, Section of Dispute Resolution), Report to the House of Delegates: Resolution 108, American Bar Association, August 2011; Judge Paul L. Friedman, Fostering Civility, American Bar Association Section of Public Contract Law, March 13, 1998; Josephine Stone, Civility and Professionalism – standards of courtesy, Article from the Office of the Legal Services Commissioner (NSW), Austlii.edu.au, 2007.

[2] Cynthia M. Allen, Politicians today are so mean – because they are just like us, Star-Telegram, May 12, 2016.

[3] Kenneth Grady, The Election, the Rule of Law, and the Role of Lawyers, Seytlines.com, November 17, 2016 – Definition of Rule of Law:

“Settling on a definition of the rule of law is a challenge. …The World Justice Project [“WJP”] has for many years ranked over 100 countries to compile an overall Rule of Law Index^® ranking. The Index is subdivided into eight categories and 44 subcategories. The categories cover areas such as absence of corruption, civil justice, and criminal justice. I am not arguing that the WJP’s approach is the best way to measure access to justice, but it will serve well for our purposes.

Since I am using the WJP’s rankings on rule of law, it will help to understand how the WJP defines rule of law. According to the WJP, “the rule of law is a system in which the following four universal principles are upheld:

1. The government and its officials and agents as well as individuals and private entities are accountable under the law.
2. The laws are clear, publicized, stable, and just; are applied evenly; and protect fundamental rights, including the security of persons and property and certain core human rights.
3. The process by which the laws are enacted, administered, and enforced is accessible, fair, and efficient.
4. Justice is delivered timely by competent, ethical, and independent representatives and neutrals who are of sufficient number, have adequate resources, and reflect the makeup of the communities they serve.”

[4] Law Society Act, R.S.O. 1990, c. L8 – does not define “professional misconduct”; Law Society of Upper Canada, Rules of Professional Conduct, r. 4.01(1),(6) (2000); Groia v. The Law Society of Upper Canada, 2016 ONCA 471 (Ont. C.A.); Federation of Law Societies of Canada, Model Code of Professional Conduct (2009); Advocates’ Society, Principles of Civility for Advocates (2001); G. M. Filisko, Be Nice: More States are treating Incivility as a Possible Ethics Violation, American Bar Association Journal, April 1, 2012; R. Wayne Thorpe (Chair, Section of Dispute Resolution), Report to the House of Delegates: Resolution 108, American Bar Association, August 2011; Josephine Stone, Civility and Professionalism – standards of courtesy, Article from the Office of the Legal Services Commissioner (NSW), Austlii.edu.au, 2007; Paula Baron and Lillian Corbin, Robust Communications or Incivility – Where do we draw the line?, La Trobe University Law School, Melbourne, Victoria, and University of New England Law School, Armidale, NSW, Australia, October 29, 2015:

“Arguing that civility is important, this article will analyse relevant case law from Australia, the United Kingdom, the United States, Canada and New Zealand, in order to better understand contemporary conceptions of civility and to draw out principles currently being used to gauge the distinction between appropriate communications and unethical behaviour. The article finds a relatively high degree of consistency in the approach across jurisdictions. This suggests that there is, broadly speaking, a common understanding of the meaning and significance of lawyer civility. At the same time, there are relatively few cases that deal with lawyer incivility. This is somewhat surprising in light of the concerns around loss of civility in the profession.”

[5] Jayne R. Reardon, Civility as the Core of Professionalism, American Bar Association, 2014; R. Wayne Thorpe (Chair, Section of Dispute Resolution), Report to the House of Delegates: Resolution 108, American Bar Association, August 2011. [http://www.americanbar.org/content/dam/aba/administrative/dispute_resolution/civility.authcheckdam.pdf]

[6] Rebecca S. Chopp, The social value of civil discourse, Colgate.edu, September 2015; Andrea Leskes, A Plea for Civil Discourse: Needed, the Academy’s Leadership, Association of American Colleges & Universities, Fall 2013; Robert A. Dahl, A Preface to Democratic Theory (1956); R. Wayne Thorpe (Chair, Section of Dispute Resolution), Report to the House of Delegates: Resolution 108, American Bar Association, August 2011. [http://www.americanbar.org/content/dam/aba/administrative/dispute_resolution/civility.authcheckdam.pdf]

[7] Jayne R. Reardon, Civility as the Core of Professionalism, American Bar Association, 2014; Lindsay Scott, Dealing with incivility from senior counsel, Canadian Lawyer, November 19, 2012; Lawyer bullies, incivility: On policing lawyer manners, American Bar.org, October 2015; Dan Pinnington, Incivility: Practical Consequences for You and Your Client, Slaw, March 4, 2013; Daniel Naymark and Jennifer Ip, Judicial Sanction of Uncivil and Unprofessional Conduct, Advocates’ Society’s 2012 Symposium on Civility and Professionalism; Crisin Schmitz, Incivility case heads to top court, The Lawyers Weekly, July 1, 2016; Jacques Gallant, ‘Rude’ lawyer Joseph Groia loses appeal on incivility conviction, Toronto Star, June 14, 2016; Scott Garner, Civility Among Lawyers: Nice Guys Don’t Have to Finish Last, Orange County Bar Association, November 25, 2016; Judge Paul L. Friedman, Fostering Civility, American Bar Association Section of Public Contract Law, March 13, 1998; Ron Profit, Civility in the Legal Practice: Practical Tips, Canadian Bar Association, July 16, 2014; Eugene Meehan, Civility as a Strategy in Litigation: Using it as a Tactical Tool, SupremeAdvocacy.ca; G.M. Filisko, You’re Out of Order! Dealing with the Costs of Incivility in the Legal Profession, ABA Journal, January 1, 2013; Rhys Davies and E. Jane Milton, Civility – A Very Brief Overview, CLE.BC.ca, November 2012; Michael Code, Counsel’s Duty of Civility: An Essential Component of Fair Trials and an Effective Justice System, 11 Can. Crim. L.R. 97 (2007); Josephine Stone, Civility and Professionalism – standards of courtesy, Article from the Office of the Legal Services Commissioner (NSW), Austlii.edu.au, 2007; Law Society of Upper Canada, For the Record: Civility, lsuc.ca; Civility: A Cornerstone of Professionalism, Ontario Lawyers Gazette, Winter 2008; Judith Fischer, Incivility in Lawyers’ Writing: Judicial Handling of Rambo Run Amok, Research Gate.net, April 2011; David Grenardo, The High Costs of Incivility, American Bar Association, Before the Bar, April 1, 2015; Justin Kelsey, Are Divorce Lawyers Regularly Violating the Civility Guidelines?, Boston Bar Association, Winter 2016.

[8] Amy La Porte, Spike in hate crimes prompts special NY police unit, CNN, November 21, 2016; Joshua Miller, Trump is attacking foes on Twitter like he’s campaigning, Boston Globe, November 22, 2016; Kathleen Parker Commentary: Trump’s incivility sustains followers, foes, The Columbus Dispatch, October 26, 2016; Ravi Iyer, How to Make Real Progress Against Trump’s Incivility, Civil Politics, March 13, 2016; Geoff Colvin, Donald Trump’s Rude, Reality TV – Style Campaign is going to Grow Old, Fortune, February  10, 2016; Post-Trump victory bullying, harassment reported in schools, CBS News, November 13, 2016; Editor, Editorial: The descent into incivility, Montgomery Advertiser, April 18, 2016 (“Inflammatory, racist rhetoric from some candidates for the U.S. presidency is spilling over into national life in vile ways. The main culprit is Donald Trump, currently the GOP front-runner.”).

[9] See generally: Robert D. Putnam, Bowling Alone: The Collapse and Revival of American Community (2001); Michael Woolcock & Deepa Narayan, Social Capital: Implications for Development Theory, Research and Policy, 15 World Bank Research Obs. 225 (2000); Robert D. Putnam, Making Democracy Work: Civic Traditions in Italy (1993); Brian O’Donnell, Civil Society: The Underpinning of American Democracy (1999); Susan Rose-Ackerman, Corruption: Greed, Culture and the State, 120 Yale L. J. Online 125 (2009); Larry J. Diamond, Three Paradoxes of Democracy, 1 J. DEM. 3 (1990); R. Wayne Thorpe (Chair, Section of Dispute Resolution), Report to the House of Delegates: Resolution 108, American Bar Association, August 2011. [http://www.americanbar.org/content/dam/aba/administrative/dispute_resolution/civility.authcheckdam.pdf]

[10] R. Wayne Thorpe (Chair, Section of Dispute Resolution), Report to the House of Delegates: Resolution 108, American Bar Association, August 2011.

[11] Mark A. Cohen, Law’s Challenges are Global. A Broader Perspective Would Help Solve Them, Forbes, November 20, 2016.

[12] Rebecca S. Chopp, The social value of civil discourse, Colgate.edu, September 2015; R. Wayne Thorpe (Chair, Section of Dispute Resolution), Report to the House of Delegates: Resolution 108, American Bar Association, August 2011. [http://www.americanbar.org/content/dam/aba/administrative/dispute_resolution/civility.authcheckdam.pdf]

[13] Jayne R. Reardon, Civility as the Core of Professionalism, American Bar Association, 2014.

[14] Rebecca S. Chopp, The social value of civil discourse, Colgate.edu, September 2015; R. Wayne Thorpe (Chair, Section of Dispute Resolution), Report to the House of Delegates: Resolution 108, American Bar Association, August 2011. [http://www.americanbar.org/content/dam/aba/administrative/dispute_resolution/civility.authcheckdam.pdf]

[15] Rebecca S. Chopp, The social value of civil discourse, Colgate.edu, September 2015.

[16] R. Wayne Thorpe (Chair, Section of Dispute Resolution), Report to the House of Delegates: Resolution 108, American Bar Association, August 2011. [http://www.americanbar.org/content/dam/aba/administrative/dispute_resolution/civility.authcheckdam.pdf]

[17] Editor, Civility in America 2016: U.S. Facing a Civility Crisis Affecting Public Discourse and Political Action, WeberShandick.com, January 28, 2016; Jessica Chasmar, Penzeys CEO: Trump voters ‘just committed the biggest act of racism’ since segregation, Washington Times, November 23, 2016; Amy La Porte, Spike in hate crimes prompts special NY police unit, CNN, November 21, 2016; Joshua Miller, Trump is attacking foes on Twitter like he’s campaigning, Boston Globe, November 22, 2016; Kathleen Parker Commentary: Trump’s incivility sustains followers, foes, The Columbus Dispatch, October 26, 2016; Ravi Iyer, How to Make Real Progress Against Trump’s Incivility, Civil Politics, March 13, 2016; Geoff Colvin, Donald Trump’s Rude, Reality TV – Style Campaign is going to Grow Old, Fortune, February  10, 2016; Post-Trump victory bullying, harassment reported in schools, CBS News, November 13, 2016; Editor, Editorial: The descent into incivility, Montgomery Advertiser, April 18, 2016 (“Inflammatory, racist rhetoric from some candidates for the U.S. presidency is spilling over into national life in vile ways. The main culprit is Donald Trump, currently the GOP front-runner.”); Dan Horn, Your candidate stinks! Social Media goes all in on political incivility, USA Today, September 29, 2016; In the workplace, incivility begets incivility, new study shows, Science Daily, October 12, 2016; Dr. Steven Mitz, Can Civility in Society be Regained?, Ethics Sage, January 12, 2016.

[18] Editor, Civility in America 2016: U.S. Facing a Civility Crisis Affecting Public Discourse and Political Action, WeberShandick.com, January 28, 2016; Michelle Silverthorn, Has America Lost her Civility?, 2civility.org, November 2, 2016.

[19] Amy La Porte, Spike in hate crimes prompts special NY police unit, CNN, November 21, 2016; Joshua Miller, Trump is attacking foes on Twitter like he’s campaigning, Boston Globe, November 22, 2016; Kathleen Parker Commentary: Trump’s incivility sustains followers, foes, The Columbus Dispatch, October 26, 2016; Ravi Iyer, How to Make Real Progress Against Trump’s Incivility, Civil Politics, March 13, 2016; Geoff Colvin, Donald Trump’s Rude, Reality TV – Style Campaign is going to Grow Old, Fortune, February  10, 2016; Post-Trump victory bullying, harassment reported in schools, CBS News, November 13, 2016; Editor, Editorial: The descent into incivility, Montgomery Advertiser, April 18, 2016 (“Inflammatory, racist rhetoric from some candidates for the U.S. presidency is spilling over into national life in vile ways. The main culprit is Donald Trump, currently the GOP front-runner.”); Allan Smith, Kasich: The shocking Donald Trump tapes are not ‘surprising to me or many others’, Business Insider, October 8, 2016; David A. Fahrenthold, Trump recorded having extremely lewd conversation about women in 2005, Washington Post, October 8, 2016; Editorial Board, Endorsement: Hillary Clinton is the only choice to move America ahead, The Arizona Republic (azcentral.com), October 13, 2016 – “stunning lack of human decency, empathy and respect”; Timothy Egan, Burning Down the House, The New York Times, October 14, 2016; Laurie Goodstein, Donald Trump Reveals Evangelical Rifts that could Shape Politics for Years, New York Times, October 17, 2016 – “Trump has consistently normalized violence, sexual deviance, bigotry and hate speech. I wouldn’t accept this from my seventh-grade son, much less from a potential leader of the free world.”

[20] Jeremy Shapiro, British MP Jo Cox’s murder brought civility to the Brexit debate: It won’t last”, Vox.com, June 20, 2016; Bob Rae, No matter the Brexit result, Britain has become more bitter, Glober & Mail, June 22, 2016;

[21] John Parisella, Civility is Not a Sign of Weakness, Americas Quarterly, August 15, 2012; Caley Ramsey, Alberta MLA Sandra Jansen given security detail after threats, Global News, November 23, 2016; Rick McConnell, Impassioned Sandra Jansen calls on legislature to stand against misogyny, CBC News, November 22, 2016; Mariam Ibrahim, Alberta premier won’t be deterred in wake of online threats, Edmonton Journal, December 12, 2015; Kelly McParland, Internet venom is an offence against a civil and tolerant society, National Post, November 24, 2016.

[22] Incivility in the workplace is growing and a ‘civility policy’ may be the answer, Ottawa Citizen, June 21, 2015; Workplace Incivility, CBC News, Ottawa Morning, August 15, 2016; Sharone Bar-David, Benefits Column: Abrasive employees hurt productivity, Benefits Canada, February 18, 2015.

[23] Dr. Steven Mitz, Can Civility in Society be Regained?, Ethics Sage, January 12, 2016.

[24] Rebecca S. Chopp, The social value of civil discourse, Colgate.edu, September 2015.

[25] Kenneth Grady, The Election, the Rule of Law, and the Role of Lawyers, Seytlines.com, November 17, 2016.

[26] Law Society Act, R.S.O. 1990, c. L8 – does not define “professional misconduct”; Law Society of Upper Canada, Rules of Professional Conduct, r. 4.01(1),(6) (2000); Groia v. The Law Society of Upper Canada, 2016 ONCA 471 (Ont. C.A.); Federation of Law Societies of Canada, Model Code of Professional Conduct (2009); Advocates’ Society, Principles of Civility for Advocates (2001); G. M. Filisko, Be Nice: More States are treating Incivility as a Possible Ethics Violation, American Bar Association Journal, April 1, 2012; R. Wayne Thorpe (Chair, Section of Dispute Resolution), Report to the House of Delegates: Resolution 108, American Bar Association, August 2011; Josephine Stone, Civility and Professionalism – standards of courtesy, Article from the Office of the Legal Services Commissioner (NSW), Austlii.edu.au, 2007; Paula Baron and Lillian Corbin, Robust Communications or Incivility – Where do we draw the line?, La Trobe University Law School, Melbourne, Victoria, and University of New England Law School, Armidale, NSW, Australia, October 29, 2015:

“Arguing that civility is important, this article will analyse relevant case law from Australia, the United Kingdom, the United States, Canada and New Zealand, in order to better understand contemporary conceptions of civility and to draw out principles currently being used to gauge the distinction between appropriate communications and unethical behaviour. The article finds a relatively high degree of consistency in the approach across jurisdictions. This suggests that there is, broadly speaking, a common understanding of the meaning and significance of lawyer civility. At the same time, there are relatively few cases that deal with lawyer incivility. This is somewhat surprising in light of the concerns around loss of civility in the profession.”

[27] Jayne R. Reardon, Civility as the Core of Professionalism, American Bar Association, 2014; Josephine Stone, Civility and Professionalism – standards of courtesy, Article from the Office of the Legal Services Commissioner (NSW), Austlii.edu.au, 2007; Paula Baron and Lillian Corbin, Robust Communications or Incivility – Where do we draw the line?, La Trobe University Law School, Melbourne, Victoria, and University of New England Law School, Armidale, NSW, Australia, October 29, 2015.

[28] Groia v. The Law Society of Upper Canada, 2016 ONCA 471, para. 119 (Ont. C.A.).

[29] Dore v. Barreau du Quebec, 2012 SCC 12, [2012] 1 S.C.R. 395.

[30] R. Wayne Thorpe (Chair, Section of Dispute Resolution), Report to the House of Delegates: Resolution 108, American Bar Association, August 2011.

[31] Donald J. Polden (Dean and Prof of Law, Santa Clara University), Leadership Matters: Lawyers’ Leadership Skills and Competencies, Santa Clara Law Review, Vol. 52, No. 3, September 21, 2012.

[32] Deborah L. Rhode (Stanford law professor), Lawyers as Leaders, 2013.

[33] Jayne R. Reardon, Civility as the Core of Professionalism, American Bar Association, 2014.

[34] Rondel v. Worsley, [1969] 1 A.C. 191, at pp. 227.

[35] Groia v. The Law Society of Upper Canada, 2016 ONCA 471, para. 132-133 (Ont. C.A.).

[36] Groia v. The Law Society of Upper Canada, 2016 ONCA 471, para. 136 and 139 (Ont. C.A.).

[37] Groia v. The Law Society of Upper Canada, 2016 ONCA 471, para. 138 (Ont. C.A.).

[38] Jayne R. Reardon, Civility as the Core of Professionalism, American Bar Association, 2014.

[39] Josephine Stone, Civility and Professionalism – standards of courtesy, Article from the Office of the Legal Services Commissioner (NSW), Austlii.edu.au, 2007. – “A recent case indicates that English lawyers are not immune to “Rambo” tactics”.

[40] Judge Paul L. Friedman, Fostering Civility, American Bar Association Section of Public Contract Law, March 13, 1998; Ron Profit, Civility in the Legal Practice: Practical Tips, Canadian Bar Association, July 16, 2014; Eugene Meehan, Civility as a Strategy in Litigation: Using it as a Tactical Tool, SupremeAdvocacy.ca; G.M. Filisko, You’re Out of Order! Dealing with the Costs of Incivility in the Legal Profession, ABA Journal, January 1, 2013; Rhys Davies and E. Jane Milton, Civility – A Very Brief Overview, CLE.BC.ca, November 2012; Michael Code, Counsel’s Duty of Civility: An Essential Component of Fair Trials and an Effective Justice System, 11 Can. Crim. L.R. 97 (2007); Jayne R. Reardon, Civility as the Core of Professionalism, American Bar Association, 2014; Josephine Stone, Civility and Professionalism – standards of courtesy, Article from the Office of the Legal Services Commissioner (NSW), Austlii.edu.au, 2007; Law Society of Upper Canada, For the Record: Civility, lsuc.ca; Civility: A Cornerstone of Professionalism, Ontario Lawyers Gazette, Winter 2008; Lindsay Scott, Dealing with incivility from senior counsel, Canadian Lawyer, November 19, 2012.

[41] G.M. Filisko, You’re Out of Order! Dealing with the Costs of Incivility in the Legal Profession, ABA Journal, January 1, 2013; Rhys Davies and E. Jane Milton, Civility – A Very Brief Overview, CLE.BC.ca, November 2012; Michael Code, Counsel’s Duty of Civility: An Essential Component of Fair Trials and an Effective Justice System, 11 Can. Crim. L.R. 97 (2007); Jayne R. Reardon, Civility as the Core of Professionalism, American Bar Association, 2014; Josephine Stone, Civility and Professionalism – standards of courtesy, Article from the Office of the Legal Services Commissioner (NSW), Austlii.edu.au, 2007.

[42] Jayne R. Reardon, Civility as the Core of Professionalism, American Bar Association, 2014; Lindsay Scott, Dealing with incivility from senior counsel, Canadian Lawyer, November 19, 2012; G.M. Filisko, You’re Out of Order! Dealing with the Costs of Incivility in the Legal Profession, ABA Journal, January 1, 2013; Rhys Davies and E. Jane Milton, Civility – A Very Brief Overview, CLE.BC.ca, November 2012; Josephine Stone, Civility and Professionalism – standards of courtesy, Article from the Office of the Legal Services Commissioner (NSW), Austlii.edu.au, 2007; Law Society of Upper Canada, For the Record: Civility, lsuc.ca; Civility: A Cornerstone of Professionalism, Ontario Lawyers Gazette, Winter 2008; Michael Code, Counsel’s Duty of Civility: An Essential Component of Fair Trials and an Effective Justice System, 11 Can. Crim. L.R. 97 (2007).

[43] Jayne R. Reardon, Civility as the Core of Professionalism, American Bar Association, 2014; Josephine Stone, Civility and Professionalism – standards of courtesy, Article from the Office of the Legal Services Commissioner (NSW), Austlii.edu.au, 2007.

[44] Excerpts from the Chief Justice’s Speech on the Need for Civility, New York Times, May 19, 1971. [Former Chief Justice Warren E. Burger addressing the American Law Institute in May, 1971]

[45] CBABC Professional Development, How to be Ethical and Civil in the Practice of Law, cbabc.org, August 1, 2015.

[46] Cited by Allen K. Harris, The Professionalism Crisis – The ‘Z’ Words and Other Rambo Tactics: The Conference of Chief Justices Solution”, 53 S.C.L. Rev. 549, 577-578; Josephine Stone, Civility and Professionalism – standards of courtesy, Article from the Office of the Legal Services Commissioner (NSW), Austlii.edu.au, 2007.

[47] Jayne R. Reardon, Civility as the Core of Professionalism, American Bar Association, 2014.

[48] Jayne R. Reardon, Civility as the Core of Professionalism, American Bar Association, 2014.

[49] Groia v. The Law Society of Upper Canada, 2016 ONCA 471, para. 119 (Ont. C.A.).  Also See: Law Society Act, R.S.O. 1990, c. L8 – does not define “professional misconduct”; Law Society of Upper Canada, Rules of Professional Conduct, r. 4.01(1),(6) (2000); Federation of Law Societies of Canada, Model Code of Professional Conduct (2009); Advocates’ Society, Principles of Civility for Advocates (2001); G. M. Filisko, Be Nice: More States are treating Incivility as a Possible Ethics Violation, American Bar Association Journal, April 1, 2012; R. Wayne Thorpe (Chair, Section of Dispute Resolution), Report to the House of Delegates: Resolution 108, American Bar Association, August 2011; Josephine Stone, Civility and Professionalism – standards of courtesy, Article from the Office of the Legal Services Commissioner (NSW), Austlii.edu.au, 2007; Paula Baron and Lillian Corbin, Robust Communications or Incivility – Where do we draw the line?, La Trobe University Law School, Melbourne, Victoria, and University of New England Law School, Armidale, NSW, Australia, October 29, 2015:

“Arguing that civility is important, this article will analyse relevant case law from Australia, the United Kingdom, the United States, Canada and New Zealand, in order to better understand contemporary conceptions of civility and to draw out principles currently being used to gauge the distinction between appropriate communications and unethical behaviour. The article finds a relatively high degree of consistency in the approach across jurisdictions. This suggests that there is, broadly speaking, a common understanding of the meaning and significance of lawyer civility. At the same time, there are relatively few cases that deal with lawyer incivility. This is somewhat surprising in light of the concerns around loss of civility in the profession.”

[50] Jayne R. Reardon, Civility as the Core of Professionalism, American Bar Association, 2014.

[51] Ben W. Heineman, Jr., Lawyers as Leaders, 116 Yale L.J. Pocket Part 266 (2007).