Societies are undone in many ways, not all of them obvious. We tend to think of decline along economic lines, but it is a nation’s culture – particularly in terms of civility, public discourse, and the robust open exchange of diverse ideas and perspectives[1] – that determines its societal credentials. Among any nation’s most precious possessions is its social fabric. Civility and civil discourse is not just a necessary part of societal engagement, it is an important part of our legal system and our democracy:[2]  the glue that holds society, our institutions, and our communities together.[3]

Civility and public discourse lies at the heart of democracies around the world, including Canada, the U.S., the UK, Australia, and the EU.[4] Unfortunately there appears to be less civility in society generally today, less courtesy, less respect. In the political arena and in public discourse, the rhetoric is harsher and the decibels are higher, and they too frequently overshadow the power of ideas and the substance of reasoned debates.[5] Deep polarization and loss of trust[6] in society’s leaders and institutions (including the apolitical credibility of Courts in some jurisdictions)[7] – with the concomitant social fragmentation and civil unrest – appears to be a fact of political life in many countries, with partisan divisions over the functioning of democratic institutions particularly large in the U.S., the UK, and Europe.[8]

Across the world, the erosion and decline of civil discourse[9] – the descent into what looks like a full on ‘civility crisis’ – has profound and negative effects on our society, the rule of law,[10] and on our democracies.[11]  In such a world divided, the rule of law – which defines Western societies’ social and political fabric[12] – must be maintained and safeguarded. As the foundation of a fair and just society, the appropriate application of the rule of law is “one of the greatest unifying factors” and the “nearest we are likely to approach a universal secular religion” for peace and good government[13] and a decent society.  Unfortunately, there is a growing body of evidence depicting stress cracks in the rule of law,[14] and in some jurisdictions the courts may be perceived to be motivated by (or succumbing to) the policy preferences of the government, as opposed to an independent judicial analysis of the particular issue(s) – and maintaining and enforcing the rule of law.[15]

Lawyers have historically been the guardians[16] and ultimate defenders of the rule of law,[17] and going forward may well be the “masons” [18] required by society to maintain (and in some jurisdictions restore) this fundamental principle. However, in the current environment there is no reason to believe that the legal profession is immune from the same corrosive influence of incivility and polarization we find at home and across the world.  The practice of law is a grueling profession, but “the most frightening measure of what the legal profession has lost is that most” members of the public “do not even remember the trust that society once placed in its lawyers” and the legal profession.[19]

Civility should be recognized as the sign of strength that it is.  The legal profession’s duty and role as advocates (representing their clients resolutely and honourably ) and as conservators and guardians of the rule of law[20]  is crucial, and public confidence in and respect for the legal profession is essential to the credibility and legitimacy of the judicial system and our democratic institutions. As such, lawyers as a profession must set a high standard for principled civil discourse and conflict resolution, and act as an example for our society in resolving differences constructively.^[21]

However, civility should not be seen as the end goal in itself,[22] but rather as the essential underpinning and stepping stone for a healthy legal profession, rule of law, and democracy. Civility is not about papering over or masking deep disagreements or injustice,[23] but rather to help “nudge us away from our most basic impulses” and create a space for listening, the exchange of ideas, and effective advocacy. In a leadership role, the legal profession can remind the public that – for all of its flaws – it serves a vital role in a democracy as a ‘civil’ advocate for their clients, and a defender of the rule of law and the system of justice.[24]

Civility within the legal profession is the right thing to do, and this is the right time to do it.[25]

The American Bar Association recognizes … the principle of civility as a foundation for democracy and the rule of law.

– Linda Klein, ABA President, 2016-2017[26]

Overview

As incivility is increasingly a feature of the public discourse, these are also troubled times for the legal profession which is being significantly impacted by a combination of competitive alternative legal service providers, globalization, the expanding reach of technology, market liberalizations, and the changing behaviour of the retail and corporate consumer of legal services.[27]  The legal profession in Canada, the U.S., the UK, Australia, and the western world is in a period of major change: “beset on all sides by intensifying competitive pressures both new and old”.[28] Once insulated, law has become one of the most competitive markets in the new normal,[29] and the profession of law more challenging and stressful today than ever before.[30]

Not surprisingly, we do indeed see a corresponding decline in civility in the legal profession.[31] Although the root cause of incivility is much debated, to many the decline in civility is tied to economic anxiety and the incivility in our society at large. Although there are many contributing factors, it may be fair to say that an increasingly bottom-line ‘win at all costs’ mentality[32] within the legal profession – both in law firms and  in-house legal departments – is a microcosm of our changing society.

Law in 2018: It’s looking a little ‘Hunger Games’ out there.

– Claire Bushey, Crain’s Chicago Business[33]

Within the business of law it appears that professional relationships of civility, tolerance and trust cannot be established only on the basis of a law degree and call to the Bar (licensure).^[34] Within the complexities of our profession – to be successfully maintained – these aspirational goals must be institutionalized within the legal culture and nurtured by interpersonal relationships and our legal and judicial leaders and role models. This is particularly true for 21^st century lawyers who are increasingly pressured by the bottom-line in a waning legal market^[35] – struggling with increased competition (including underemployment and even unemployment); increased debt, lower compensation expectations, and fewer job choices.^[36] A lot rides on our success and behaviour, and this pressure only increases as lawyers rise in their profession in both law firms and in-house legal departments. Our jobs are chronically stressful and involve long hours. Not surprisingly, lawyers experience elevated feelings of psychological distress (including anxiety, depression, and burnout),[37] and higher risk of addiction.[38]

The study reports that 21 percent of licensed, employed attorneys qualify as problem drinkers, 28 percent struggle with some level of depression and 19 percent demonstrate symptoms of anxiety. … Any way you look at it, this data is very alarming, and paints the picture of an unsustainable professional culture that’s harming too many people. … The stakes are too high for inaction.

– ABA, Hazeldon Betty Ford Foundation: National Study on Attorney Substance use, Mental Health concerns[39]

Legal commentators have suggested that today’s legal culture “is incompatible with a sustainable legal profession”[40] and that this may have “a ripple effect that implicates everything from the proper and efficient functioning of the economy and government more broadly”, to democracy and the rule of law,[41] to “the individual citizens who depend on lawyers in the course of daily life”.[42] The legal profession’s regulators and leaders “must reflect on the relevance and importance of” the legal culture, civility, and “mental health to the ability of individuals to meet their professional responsibilities and to serve the public”.[43] The research and studies suggest that the current state may undermine “a profession dedicated to client service and dependent on the public trust”:[44]

“The legal profession is already struggling. Our profession confronts a dwindling market share as the public turns to more accessible, affordable alternative legal service providers.[45] We are at a crossroads. To maintain public confidence in the profession, to meet the need for innovation in how we deliver legal services, to increase access to justice, and to reduce the level of toxicity that has allowed mental health and substance use disorders to fester among our colleagues, we have to act now. Change will require a wide-eyed and candid assessment of our members’ state of being, accompanied by courageous commitment to re-envisioning what it means to live the life of a lawyer.”

More civility and greater professionalism can only enhance the satisfaction lawyers find in practice, increase the effectiveness of the system of justice, and improve the public’s perception and trust of the legal profession. In this manner – as representatives of their clients and officers of the court – the legal profession may be appropriately positioned to fulfill their overarching duty as public citizens having special responsibility for the quality of justice,[46] and as conservators of the rule of law[47] and guardians of the legal system.[48]

Canada’s top judge says Supreme Court should provide leadership at a time when fundamental values are being undermined in the world.

– Toronto Star, June 22, 2018[49]

Introduction

Incivility is “becoming the new normal in our society” – the perception being that civility has declined. In the U.S., the UK, Canada, Australia, the EU, and across the world ugly political and societal discourse is becoming a social crisis.[50] Survey after survey suggests that most people believe incivility is a problem, and in the U.S. 93% of the public are in agreement that there is a ‘civility problem’ with over 70% concerned that it has reached ‘crisis levels’.[51]

Civility is a societal issue, and we appear to be losing sight of civility in politics, the legal system, the workplace, and our day to day interactions. Discussion and dialogue is taking a back seat to ‘winning’ at any cost, and there appears to be a loss of thoughtful discourse between people of differing views.[52] Without civility “no private discussion, no public debate, no legislative process, no political campaign, no trial of any case, can serve its purpose or achieve its objective”.[53]

Top aides to U.S. President Donald Trump hurled public and personal insults at Prime Minister Justin Trudeau on Sunday in a baffling and unprecedented attack … The insults were by far the harshest words Trump’s administration has levelled at any allied leader. They demonstrated a level of public vitriol not seen in Canada-U.S. relations in more than 50 years.

– Toronto Star, June 10, 2018[54]

The modern world suffers from insufficient civility,[55] and 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 confidence in our traditional institutions, and a spirit of community, government and judicial institutions become hollow – less efficient, less effective, and less responsive. And, as legitimacy and trust in the foundations of our society are undermined, citizens are more likely to reject institutions and organizations of suspect credibility,[56] potentially responding to disagreements and conflict with violence rather than relying on civil institutions and the rule of law.[57]

Research on the topic of incivility has found that … there is social contagion with incivility in that if uncivil behavior occurs and is not confronted by corrective feedback or consequences, it tends to be more readily repeated and spreads to others. … [W]hen leaders and those held in high esteem in our culture behave in uncivil ways their behavior is modeled and repeated by others.

– Professor Thomas Plante, Ph.D., American Board of Professional Psychology[58]

Not surprisingly, this decline in civility and professionalism is reflected in the legal profession and our courts – which after all is a microcosm of our society.[59] In this environment, some may feel emboldened to ask if the legal system – which is based on an adversarial process and zealous advocacy – necessarily requires incivility on the part of the lawyers representing the parties:[60]

“Does the fact that each party enters a matter with the intent to triumph over the other side require disrespect of one’s opponent? Winston Churchill did not think so. After the Japanese bombing of Singapore and Hong Kong in 1941, Winston Churchill dispatched a letter to the Japanese Ambassador announcing that a state of war existed between England and Japan. After noting the acts of aggression, Churchill’s letter ended with these words: “I have the honour to be, with high consideration, Sir, Your obedient servant, Winston S. Churchill.” Churchill commented in his memoirs, “Some people did not like this ceremonial style. But after all when you have to kill a man it costs nothing to be polite.”

Clearly, the ability to maintain civility can be accomplished, even under the most adversarial situations.”

Civility and zealous advocacy are not mutually exclusive – an advocate can be civil and zealously represent their client. Sometimes referred to as “an iron hand in a velvet glove”,[61] there is no contradiction in being diligent, devoted, intense and passionate while also acting with courtesy and dignity.

The root cause of incivility is much debated. To many, the decline in civility in [the legal profession and] litigation is tied to incivility in society at large. … Today our talk is coarse and rude … our institutions are weakened, our values are superficial, egoism has replaced altruism, and cynicism pervades.  Amid these surroundings none should be surprised that the courtroom is less tranquil.

–  L.D. Johnson, Civil ≠ Zealous?[62]

The individual lawyer is the guardian of the tone of interactions that will serve both the client and the legal system well. The lawyer – whether in-house or in private practice – is more than a ‘hired gun’. A daunting concern for our system of justice is the inappropriate conduct of a lawyer that may threaten the integrity of the legal profession, thereby acting to undermine public confidence and respect for the legal profession and the administration of justice.[63]  Civility has been described by our highest judicial authorities as “the glue” that holds our adversarial system “together”, that “keeps it from imploding”.[64]

When lawyers are treating each other (and other justice system participants) poorly and acting outrageously, then the public will rightly look upon the legal profession with disdain and mistrust. There may be a tension on occasion between protecting resolute advocacy and ensuring accountability for incivility and professional misconduct – as we want our lawyers empowered to take difficult and sometimes unpopular positions. However, this balance is required based on the values of justice, ethics, and the integrity of the legal system. Public confidence in and respect for the legal profession is essential to an effective judicial system (and the legitimacy of its results) and, ultimately, to democracy founded on the rule of law:[65]

“Civility within the legal system not only holds the profession together, but also contributes to the continuation of a just society. . . . Conduct that may be characterized as uncivil, abrasive, hostile, or obstructive necessarily impedes the goal of resolving conflicts rationally, peacefully, and efficiently, in turn delaying or even denying justice.  This mindset eliminates peaceable dealings and often forces dilatory, inconsiderate tactics that detract from just resolution.”

Lawyer civility brings a host of benefits (both personal, to the legal profession, and society as a whole), and protects and enhances public confidence in our institutions.[66] Lawyers have special responsibilities by virtue of the privileges afforded the legal profession and the important role it plays in a free and democratic society and in the administration of justice.[67] 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 our communities.

At this time in our history, we need to emphasize intellectual honesty, open-mindedness, logical thinking, objective truth, and robust, respectful civil discussion if we are to have nations of shared values and respected institutions. We need our lawyers to embrace civility and courtesy, resolute advocacy, and positive qualities of leadership – as noted by the Supreme Court of Canada: “it is precisely when a lawyer’s equilibrium is unduly tested that he or she is particularly called upon to behave with transcendent civility”.[68]

How can this be addressed in the legal profession?  The key is leadership setting the tone for meaningful, respectful interaction.[69]  Why? Because leaders – role models if you will – need to reflect the values that drive behaviors, and behaviors drive outcomes. The culture of our legal profession is the expression of its values in action; and to be successful it is up to those who shape it—in particular its law society, bar, and judicial leaders: senior lawyers and judges.

Maintaining civility in the courtroom is completely consistent with vigorous advocacy. A trial lawyer can be a forceful and effective advocate by practicing his or her craft with civility. Indeed, civility often enhances advocacy, while incivility impairs persuasiveness and may alienate judges and juries, potentially even undermining fair trials. A perceived lack of civility has been seen as a cause of the loss of the public’s faith in the legal profession.

– Civility: An Important Tool of the Advocate’s Trialcraft[70]

From the Boardroom to the Courtroom and Wall Street to Main Street: professionalism versus incivility

From the courtroom to the boardroom and from Wall Street to Main Street, lawyers (whether in private practice or in-house) should strive to be seen as professionals – not as punchlines.

The legal profession plays an important role in society, and not surprisingly, civil behaviour is a core element of lawyer professionalism.^[71] In Ontario, as elsewhere in Canada and other jurisdictions, it is a privilege to practice law, not a right. The competency and professionalism of lawyers is the bedrock on which self-regulation of the legal profession rests.[72]

The Law Society’s rules require, as a condition for the privilege of practising law, that a lawyers’ conduct be characterized by courtesy, civility, and good faith in dealing with the courts and all participants in the justice system, including fellow lawyers.  For advocates, they also affirm a lawyer’s duty to resolutely and honourably advance the client’s cause, without fear of professional jeopardy.  These twin duties lay at the core of our adversarial system of justice and the advocate’s professional and ethical responsibilities.  They are also a mainstay of public confidence in the administration of justice.[73]

Every barrister and solicitor licensed to practise law in Canada, for example, is an officer of the court, and every advocate practising law in Canada is prohibited from engaging in professional misconduct or conduct unbecoming a lawyer.  The Law Society has the discretion to investigate a lawyer’s conduct if it receives information suggesting that the lawyer may have engaged in professional misconduct or conduct unbecoming a lawyer.[74]

In Ontario (the largest province in Canada), the term “professional misconduct” is defined in the Law Society’s Rules of Professional Conduct (2000), and sets out the requirements for professional conduct by lawyers, together with extensive commentaries regarding those requirements.[75] The Rules of Professional Conduct require that lawyers, when acting as advocates, must “represent the client resolutely and honourably within the limits of the law while treating the tribunal with candour, fairness, courtesy, and respect”.[76]  Further, lawyers must be “courteous, civil, and act in good faith to the tribunal and with all persons with whom the lawyer has dealings in the course of litigation”.[77]  There is an identical requirement for all persons with whom the lawyer has dealings in the course of his or her practice.[78]

In Canada these requirements mirror those set out in the Model Code of Professional Conduct (2009) developed by the Federation of Law Societies of Canada, and the Principles of Civility for Advocates (2001) and the Principles of Professionalism for Advocates (2009) published by the Advocates’ Society (the “Principles”). They reflect the collective wisdom of the leadership of the bar in Canada that the practice of law be characterized by professionalism, including, specifically, by the core attributes of courtesy, civility and good faith.[79]

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[80] 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 and appropriate conflict and dispute resolution. 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. It is important how lawyers conduct themselves day in and day out as they engage with clients, communities, the profession, and the legal system.^[81]

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.[82]

Although civility is central to the ethical and public-service bedrock of the legal profession, substantial indicators continue to point to a steady rise in incivility within the legal profession. Traditional media and social media carry countless accounts of lawyers screaming, using expletives, or otherwise being uncivil.

I’m out of order? You’re out of order! This whole court is out of order!

– And Justice For All[83]

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.[84] Although there is limited systemic data on incivility’s prevalence, there have been studies, surveys, and countless writings about widespread and growing dissatisfaction among judges and lawyers who mourn what they see as the gradual degradation of the practice of law, from a vocation graced by professional relationships to one stigmatized by abrasive dog-eat-dog confrontations.[85]

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 and intimidation. 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, sharp practice,[86] representing their client or employer in a “kill or be killed” fashion, attacking the integrity of another lawyer without evidence or foundation to gain an advantage, not agreeing to reasonable requests for accommodation, indiscriminate or frivolous use of pleadings, and inflammatory or discourteous correspondence and/or communication.[87]

The “Rambo” Litigator.  These lawyers are the “I am litigator. I go to war” litigators. The concept of professionalism does not come into their practice. They use rudeness as a weapon, and show disrespect in court as if it were a sign of strength against adversity. A variation on the “Rambo” litigator is the litigator who has only read one line of the Rules of Professional Conduct – the part that says you should be a zealous advocate for your client, and has thrown the rest of the Rules of Professional Conduct in the garbage. These litigators do not understand that you can be a zealous, tough and aggressive advocate without being rude or demeaning, or engaging in sharp practice. They do not understand that there is nothing to be gained by unrestrained aggression in our practice and before our courts.

– Wendy Matheson, Civility[88]

The legal profession plays an important role in society,[89] and civil behaviour is a core element of lawyer professionalism in Canada, the U.S., the UK, Australia,[90] and across the western world. Although our legal profession has witnessed progress in many ways, the business of law has also opened its doors to discourteous solicitors and the “Rambo litigators”[91] which has spawned a generation of lawyers, too many of whom think they are more effective when they are more abrasive.[92] When it comes to issues of civility, professionalism and common courtesy, there appears to be an unfortunate sea change in the culture of the profession.

Why Civility and Professionalism is Important

Incivility and destructive discourse can have negative consequences for society and the judicial system. 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 within the legal profession and administration of justice that incivility is damaging in a number of ways, including by way of example:[93]

• Incivility can prejudice a client’s cause. The mindset eliminates mutual respect and peaceable dealings, and often forces inappropriate tactics that impede the just resolution of conflicts rationally, peacefully and efficiently – in turn delaying or denying justice. Uncivil communications with opposing counsel can cause a breakdown in the relationship, eliminating any prospect of settlement and increasing the client’s legal costs by forcing unnecessary court proceedings to adjudicate disputes that could have been resolved with a simple phone call. Overly aggressive, sarcastic, or demeaning courtroom language may lead triers of fact, be they judge or jury, to view the lawyer — and therefore the client’s case — unfavourably.
• Incivility is disturbing. A lawyer forced to defend against constant allegations of impropriety will naturally be less focused on arguing the case. Uncivil behaviour also distracts the triers of fact by diverting their attention away from the substantive merits of the case. The trial judge risks becoming preoccupied with policing counsel’s conduct instead of focusing on the evidence and legal issues.
• Incivility adversely impacts other justice system participants.
• Incivility undermines the culture of the legal profession.
• Incivility erodes public confidence in the administration of justice — a vital component of an effective justice system and healthy democracy.  Inappropriate vitriol, sarcasm and baseless allegations of impropriety can cause the parties, and the public at large, to question the reliability of the result, as well as the credibility and legitimacy of the legal profession and judicial institution. Incivility diminishes the public’s perception of the justice system as a fair dispute-resolution and truth-seeking mechanism.

Civility is part of the culture of law practice as defined ‘lawyer-by-lawyer, act-by-act’. Everything we do as lawyers either adds to a culture that fosters civility or detracts from it.

– Donald Lundberg, Zealotry v. Zeal: Thoughts about Lawyer Civility[94]

The justice system – let alone democracy – cannot function effectively under these conditions. Civility costs nothing, but buys everything.[95]  Without a social structure that supports tolerance, a basic level of trust, and a spirit of community, our institutions become hollow. When this occurs, citizens are more likely to respond to conflict inappropriately rather than rely on civil institutions and the rule of law.[96]

Bar organizations and disciplinary bodies are providing the legal profession 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.[97]

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”.[98]

Awareness and understanding of ethics and professional responsibility is of the utmost importance for every member of the legal profession. 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.[99] “Civility is more than just good manners:[100]

“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, Australia, or Europe. It begins with recognition that civility is, and must be, the cornerstone of legal practice.[101]

In actual practice, uncivil behavior by lawyers can result in extraordinary costs – increased costs for clients, increased stress for lawyers, and an increased negative public perception of lawyers. One highly significant additional cost is that incivility by a lawyer can cost the client their case: “In a close case, civility may tip the scales toward a lawyer with a reputation for integrity, causing the uncivil lawyer’s client to lose the case.”[102] Having said that, “it is not always the case that the least contentious lawyer loses. It is enough for the ideas and positions of the parties to clash; the lawyers don’t have to.”[103]

While the ABA report [The Path to Lawyer Well-Being: Practical Recommendations for Positive Change] states that the legal profession has known for decades about its issues with addiction and depression, it also claims there is some evidence that well-being problems facing the profession are worse today than in the past. One reason, according to the report, may be a rise in incivility.

– Roy Strom[104]

Why is it happening and What are the Solutions?

Commentators 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 appears to be becoming the norm. Lawyers tend to blame Incivility on a combination of one or more factors, including:[105]

• The transformation of the legal profession from a “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).
• Strategically employed uncivil behavior in an attempt to gain an advantage.
• 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.
• Chronic stress and pressures of a demanding profession where one in four lawyers suffer elevated feelings of psychological distress, including depression, anxiety, and burnout.[106] Lawyers are faced daily with the most important problems in their clients’ lives. As noted by a senior Australian lawyer: “there’s only so far that you can stretch a rubber band, right”?[107]

Unfortunately, some equate acting civilly with being a “push over,” being “faint of heart,” and “weak,”[108] while others proclaim that the only way to successfully litigate is through the use of aggressive and belligerent tactics.[109] One group of “naysayers,”[110] in dismissing the value and role of civility, do so on the misunderstanding (a ‘zero sum fallacy’) that the expectation of professionalism and civility means a lawyer’s highest duty is no longer to win for their clients, but rather to be nice to their adversaries:  what they fail to appreciate is that – as recently affirmed by the Canadian Supreme Court of Canada[111] –   an advocate can be civil and zealously represent their client.[112] This type of attitude can be found in other “slash and burn”[113] tactics, such as “seasoned practitioners in our field [who] often exploit a young associate’s naïveté by pushing the hardball tactics to an unprofessional extreme in order to gain tactical advantages.”[114] Others may attempt to justify or explain uncivil behavior (perhaps their own), by suggesting that civility problems do not exist and that the purported troubles within the legal profession are “created” and perpetuated by an elite.[115]

To lawyers who espouse such ideas, winning is not everything—it is the only thing.[116] According to this viewpoint, civility is unimportant or even out of the question.[117] However, such statements are based on the faulty premise that civility and zealous advocacy are mutually exclusive:[118]

“What exactly does zealous itself mean?  According to popular dictionaries, zealous is being:

“Ardently active, devoted, or diligent; full of, characterized by, or due to zeal.  Synonyms: enthusiastic, eager, fervid, fervent, intense, passionate, warm.  Antonyms: apathetic; lackadaisical.

As a matter of semantics, lexicology and good old common sense, there is no contradiction in being diligent, devoted, intense and passionate while also acting with courtesy [and] dignity …  Indeed, many psychologists suggest that [lawyers and] litigators who claim it is necessary to be discourteous, disdainful and unkind in advocating their client’s case would likely have made ill-tempered and unpleasant plumbers, teachers or blackjack dealers.”

Justice Stephen Goudge of the Court of Appeal for Ontario gave a thought-provoking (and witty!) keynote address on civility in the profession. At one point, he queried whether it was really young advocates that needed a talk about civility, or their more senior counterparts. The enthusiastic applause from the audience reflected a question that came up in several ways over the two-day conference: as junior counsel, how can we best deal with incivility from other, probably more senior, counsel?

– Lindsay Scott[119]

Amidst the crisis stands the young lawyer. Having little – or at best only theoretical – exposure to such issues in law school, new lawyers naturally “look to those more experienced to learn how to be effective, prosperous and long lasting,” and will, as one Judge has observed, “practice what they see all around them because that’s how the world they have come to know seems to function.”[120] Indeed, young lawyers will likely adopt the attitude and practices of senior attorneys, “even [if it is] against their better judgment.”[121]

Many young and mid-level lawyers, having limited or theoretical exposure to civility issues in law school (or some of their law professors may question the importance of civility as an issue within the legal profession),[122] may come to believe that they need to follow the example of their senior colleagues, even if such behavior is against the new lawyers’ sense of how they ought to act.[123] They may believe that they must aggressively litigate, or that it is proper to respond in-kind when faced with inappropriate behavior from opposing counsel or the court.[124] Indeed, young lawyers may believe that they need to act uncivilly, “because that’s how the [legal] world they have come to know seems to function.”[125] New lawyers may legitimately wonder if they can act civilly and succeed given the realities of modern day practice. They may truly come to think that they must participate in the “uncivil one-upmanship”[126] to zealously represent a client, believing, as one naysayer put it, “clients want Rambo, not Bambi.”[127]

These critical civility issues are compounded by many of the unique pressures that lawyers face in today’s legal world: impressing colleagues and clients, billing targets, business and financial tension, continual learning and building the practice, chronic stress and long hours, and establishing and maintaining a reputable name.[128]

Somewhere between a lawyer’s longing to impress a senior partner and/or the client, and the pressure to win at all costs, a lawyer’s desire to practice law with civility and respect may take a back seat to these previously unseen pressures. Lawyers may act out due to psychological distress, or indeed, lawyers may feel compelled to take on the attitude and behavior of the senior lawyers modelling such conduct if it means impressing his or her colleagues and clients. Furthermore, as more than one judge has pointed out, the lawyer – not knowing any different – may believe that he or she is doing nothing wrong.[129]

Unfortunately, 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. We need to ask more than why it has happened, and focus on how it can be reasonably and appropriately turned back.[130]

It is common ground that the concept of “civility”, as it applies to lawyers, is not easily defined.  While the meaning of civility for lawyers may be difficult to articulate with specificity, its significance to the proper functioning of the judicial system is beyond doubt.[131]  Appellate Courts have time and again confirmed its importance to the legal profession, the public, and the administration of justice:[132]

“It is important that everyone, including the courts, encourage civility both inside and outside the courtroom.  Professionalism is not inconsistent with vigorous and forceful advocacy on behalf of a client and is as important in the criminal and quasi-criminal context as in the civil context. … Counsel are required to conduct themselves professionally as part of their duty to the court, to the administration of justice generally and to their clients. … Unfair and demeaning comments by counsel in the course of submissions to a court do not simply impact on the other counsel.  Such conduct diminishes the public’s respect for the court and for the administration of criminal justice and thereby undermines the legitimacy of the results of the adjudication.”

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 (whether in law firms or in-house), 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.[133]

As civil, legal, and political discourse appears to continue its “spiral to unprecedented levels of acrimony”, the American Bar Association passed a resolution in 2011 that specifically encouraged lawyers to set a high standard for civil discourse – as an example for others in resolving differences constructively and without disparagement. The resolution – not surprisingly in light of social learning theory[134] that incivility of lawyers, politicians and other leaders emboldens societal incivility – also urged political parties, government officials, advocacy groups and the media to take meaningful steps toward promoting a more civil and deliberative public dialogue. In this respect, the American Bar Association affirmed the principle of civility as a foundation for democracy and the rule of law, and encouraged:[135]

• All lawyers to set a high standard for civil discourse as an example for others in resolving differences constructively and without disparagement of others.
• All lawyers, ABA member entities, and other bar associations to take meaningful steps to enhance the constructive role of lawyers in promoting a more civil and deliberative public discourse.
• All government officials and employees, political parties, the media, advocacy organizations, and candidates for political office and their supporters, to strive toward a more civil public discourse in the conduct of political activities and in the administration of the affairs of government.

To improve civility, lawyers need to actively promote civility within the profession: be self-aware, listen don’t label, speak up and reframe, model the standard, spread the word, and nurture and change the legal culture.[136] Law firms and corporate and government legal departments may be able to institutionalize ‘civility’ changes across their organizations. As noted by legal commentators, the challenge is for legal and judicial leaders and organizational to continue to model civility, and create more civil cultures in our work and legal environments – from the boardroom to the courtroom.

Civility is not merely aspirational.  It is a codified duty of professional conduct enshrined in the Conduct Rules and, as repeatedly confirmed by the courts, an essential pillar of the effective functioning of the administration of justice.  In Ontario, at least, its necessity and importance in our legal system is now settled law.

– Justice Cronk, Ontario Court of Appeal[137]

Some Thoughts on “Tea Parties”, Civility, and Zealous Advocacy

Despite the benefits of civility to the legal profession, democracy, and the rule of law, there are some that avow that civility is anachronistic or incompatible with the modern day practice of law.  Some legal commentators and law professors appear to contend[138] that lawyers should not have to be civil where it – from their perspective – undermines their ability to advocate for their client, and many senior members of the bar[139] share these concerns that the focus on civility will run roughshod over counsel’s duty to be a fearless advocate for their client.[140] Into this mix we have some judges adding – without appropriate context[141] – the old adage “trials are not tea parties”.[142]

[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[143]

As noted by the Ontario Ministry of the Attorney General, for example, “litigation in the adversary system too frequently gives rise to underlying partisan conduct by members of the bar. Too often, the ‘I’m the toughest gun in town’ mentality is a part of some lawyers’ marketing of their services and conduct. The overworked maxim – ‘a lawsuit is not a tea party’ – should not remotely be taken to justify uncivil or unethical behaviour.[144] If this type of superficial response is encouraged – without more – the legal culture will continue to deteriorate where a lawyer’s professional standing is not enough incentive to promote responsible civil conduct:[145]

“You can expect to hear, “A trial is not a tea party,” from a lawyer on the other side, sometime in the near future.

That lawyer will likely be acting in an obstinate, demeaning, impolite, or even aggressive manner, and this quip will come quickly in defence of their conduct.

The reason I can predict this with absolute certainty is the recent Supreme Court’s decision in Groia v. Law Society of Upper Canada, released this week, which evaluated the law society’s discipline hearing decision in 2013. …

The Court’s decision was divided, with the majority [holding] … that the Appeal Panel had erred in finding professional misconduct, and there was no need to remit the matter back to the law society. …

The catchy phrase about tea parties is cited once, in the opening of the decision by the majority,

[1] The trial process in Canada is one of the cornerstones of our constitutional democracy. It is essential to the maintenance of a civilized society. Trials are the primary mechanism whereby disputes are resolved in a just, peaceful, and orderly way.

[2] To achieve their purpose, it is essential that trials be conducted in a civilized manner. Trials 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.

[3] By the same token, trials are not — nor are they meant to be — tea parties. A lawyer’s duty to act with civility does not exist in a vacuum. Rather, it exists in concert with a series of professional obligations that both constrain and compel a lawyer’s behaviour. Care must be taken to ensure that free expression, resolute advocacy and the right of an accused to make full answer and defence are not sacrificed at the altar of civility. …

The vast majority of incivility, which is admittedly the worst in Toronto than anywhere else in the country, occurs in the context of civil litigation and family law. It includes snide remarks from senior counsel to junior lawyers about practicing law before they were born. But “a trial is not a tea party,” they will say.

It extends to thinly-veiled comments of a sexist nature from male counsel to female ones about their physical appearances, or to racialized lawyers about their “actual” origins. But “a trial is not a tea party,” they will say.

It also encompasses the sarcasm and petulant tone that can be the hallmark of some renowned litigations in all of their communications. And although they too will say “a trial is not a tea party,” the Court cannot be seen as endorsing this behaviour anywhere in their decision.

Although incivility is more than just “hurt feelings,” all of these actions are employed as a deliberate tactic to disrupt proceedings and render opposing counsel ineffective (para 183). This incivility rarely occurs in court – and hardly ever occurs before a judge – but it is just as damaging to the public confidence and the administration of justice, and should be just as reviewable by a law society in conduct hearings. …

The fact that three of the Supreme Court judges applied the same test as the majority and came to a different conclusion about the reasonableness of the [Law Society] Appeal Panel’s decision illustrates that incivility will continue to be a complicated and pressing matter for the profession to explore. Their concern that subjective legal beliefs of a lawyer as a reasonable basis for misconduct will provide immunity from sanction [i.e. lawyer Groia’s misconduct appeal to the Supreme Court was allowed by the majority on the limited basis of his ‘honest but mistaken’ inability to understand the law in respect to evidence or the role of the prosecution], raised at para 198 by this dissent, will have to be tested by future decisions. …

Lest this be interpreted as a call for unnecessary complaints against counsel, consider the majority of the Court’s following statements,

[119] …the Appeal Panel’s reasonable basis standard allows for a proportionate balancing between expressive freedom and the Law Society’s statutory mandate. Allegations impugning opposing counsel’s integrity that lack a reasonable basis lie far from the core values underpinning lawyers’ expressive rights. Reasonable criticism advances the interests of justice by holding other players accountable. Unreasonable attacks do quite the opposite. As I have explained at paras. 63-67, such attacks frustrate the interests of justice by undermining trial fairness and public confidence in the justice system. A decision finding a lawyer guilty of professional misconduct for launching unreasonable allegations would therefore be likely to represent a proportionate balancing of the Law Society’s mandate and the lawyer’s expressive rights. …

Accountability is still what is being called for in [this split SCC decision], and it is the law society that is still primarily responsible for ensuring this accountability.

On April 25, 2018, Lee Akazaki received the OBA’s Joel Kuchar Award for Professionalism and Civility. At this event, Akazaki addressed the audience and said there is no reason why a trial could not be a tea party.

Incivility is never called for, and is always a distraction from the issues at hand. I agree with this sentiment, and see the questionable conduct by some counsel as compensation for weakness in their legal arguments. Resorting to alternative tactics is one of desperation, and one that should be met with resoluteness and insistence on a focus of the relevant issues.

The Court of Appeal at para 138 indicated that this adage, “a hard fought trial is not a tea party,” is often misused. The decision in [this split SCC decision] ensures that it will be misused further.

Careful review of the Supreme Court’s decision [makes clear] that it still does not license abusive and unprofessional behaviour towards opposing counsel.”

It should be noted that in this case the Supreme Court[146] did not go into detail regarding the lawyer’s alleged misconduct that was set out in earlier decisions.[147]. However, as noted by the SCC in this decision:[148]

“[98] The [Law Society] Appeal Panel also considered the frequency of what was said and the manner in which it was said to be relevant factors. A single outburst would not usually attract sanction. In contrast, repetitive attacks on opposing counsel would be more likely to cross the line into professional misconduct. The Appeal Panel also found that challenges to opposing counsel’s integrity made in a “repetitive stream of invective”, or with a “sarcastic and biting” tone were inappropriate. Finally, the Appeal Panel held that whether the lawyer was provoked was a relevant factor. …

[99] Considering the manner and frequency of the lawyer’s behaviour was reasonable. Trials are often hard fought. The stakes are high – especially so in a criminal trial where the accused faces a loss of liberty. Emotions can sometimes get the better of even the most stoic litigators. Punishing a lawyer for “a few ill-chosen, sarcastic, or even nasty comments” … ignores these realities.

[100] This does not mean that a solitary bout of incivility is beyond reproach. A single, scathing attack on the integrity of another justice system participant can and has warranted disciplinary action: see e.g., Doré; Histed v. Law Society of Manitoba, 2007 MBCA 150, 225 Man. R. (2d) 74; Law Society of Upper Canada v. Wagman, 2008 ONLSAP 14. Be that as it may, it was well within the [Law Society] Appeal Panel’s purview to conclude that, as a general rule, repetitive personal attacks and those made using demeaning, sarcastic, or otherwise inappropriate language are more likely to warrant disciplinary action.

[101] One final point. When considering the manner and frequency of the lawyer’s behaviour, it must be remembered that challenges to another lawyer’s integrity are, by their very nature, personal attacks. They often involve allegations that the lawyer has deliberately flouted his or her ethical or professional duties. Strong language that, in other contexts, might well be viewed as rude and insulting will regularly be necessary to bring forward allegations of prosecutorial misconduct or other challenges to a lawyer’s integrity. Care must be taken not to conflate the strong language necessary to challenge another lawyer’s integrity with the type of communications that warrant a professional misconduct finding.”

I should not be taken as endorsing incivility in the name of resolute advocacy. In this regard, I agree with both Cronk J.A. and Rosenberg J.A. that civility and resolute advocacy are not incompatible. …. To the contrary, civility is often the most effective form of advocacy. Nevertheless, when defining incivility and assessing whether a lawyer’s behaviour crosses the line, care must be taken to set a sufficiently high threshold that will not chill the kind of fearless advocacy that is at times necessary to advance a client’s cause.

– Justice Moldaver, Supreme Court of Canada[149]

My viewpoint is this: lawyers should be the primary proponents of ethics and civility – nowhere is this more important that in the courtroom where our entire system of conflict resolution and justice is put to the test within the view of the public eye.[150]  As noted by former U.S. Chief Justice Warren Burger “civility is imperative” in the courtroom: “when even a few judges tolerate the Rambo Lawyer’s misconduct, the administration of justice suffers, and it leads to repetition of that conduct by other lawyers”.[151]

The key is determining when uncivil courtroom communication ‘crosses the line’. The test is fundamentally “contextual and fact-specific” (ultimately eight of the Supreme Court’s nine judges expressly endorsed the multi-factored, “flexible and precise” approach to determining lawyer incivility, that was devised by the Law Society hearing panel – an approach which employs a context-specific inquiry, rather than a stand-alone test and rigid definition).[152] In this case the SCC majority was of the opinion to give the particular lawyer the benefit of the doubt in all the circumstances of that particular case (in light of the fact the lawyer did modify his behaviour – admittedly late in the game – when finally given instruction by the appropriate trial and reviewing judge(s)).[153]  At the end of the day, uncivil communication will be viewed as incivility when it amounts to “potent displays of disrespect for the participants in the justice system, beyond mere rudeness or discourtesy” and “falls below the standard of conduct” that the public and profession have a right to expect:[154]

“It is conduct that risks bringing the administration of justice into disrepute because it is conduct that strikes at the very qualities of what the justice system represents.  It is conduct that would make an impartial outside observer question the central tenets upon which the justice system is based.  It is the difference between impassioned, but reasoned, disagreements and… uninformed, nasty, personal tirades….”

The Law Society – as the regulator of lawyers and paralegals in Ontario – overall welcomed the Supreme Court’s recognition of the importance of civility in the courts and its decision to endorse the Law Society Tribunal Appeal Panel’s test for incivility and misconduct in court.[155] As well, as noted above, during the underlying trial and appeal process which formed the basis of the law society’s finding of professional misconduct, “the senior courts to which the prosecutors complained were not silent about Mr. Groia’s conduct. Quite the contrary. In no uncertain terms they expressed their very strong displeasure. In the language of earlier times, they administered a public shaming to Mr. Groia. They told Mr. Groia to cut it out and smarten up. He listened, and he did”.[156] In this light, the Law Society may well have overreached in the circumstances of this particular case. Perhaps the SCC majority’s “unease with the [Law Society] Appeal Panel’s finding of professional misconduct” stemmed “in part from the severity of the penalty that was handed down to Mr. Groia. A one-month licence suspension and a $200,000 cost award” does seem overly “harsh” in all the circumstances.[157]

There is a possibility that this Supreme Court of Canada decision may be misconstrued and utilized to undermine the importance of civility within the legal profession. Unfortunately, the common objection to civility by some members of the bar – the ‘zero sum fallacy’ that it diminishes advocacy for the client – may lead to a failure by some subsets of the legal profession to appreciate the robustness of the decision. In particular, the Court’s recognition of the important role and value of lawyers in society and the judicial system, including the point that professional advocacy can and should embrace both civility and the zealous representation of clients.[158] The Canadian Supreme Court specifically affirmed the importance of both civility and resolute advocacy[159] – in an adversarial system it is expected that lawyers will represent their clients zealously, however: [160]

“Nothing relating to civil conduct requires that a lawyer’s interests or the system’s interests be put ahead of the client’s interests. Uncivil conduct is not “zealous advocacy”: it is conduct that unnecessarily calls into question the integrity of the court process and of the players involved in that process. It brings the administration of justice into dispute. Damage to the administration of justice cannot be tolerated and is not necessary in order for a trial lawyer to serve as a fearless and loyal advocate. Indeed, principles of civility are consistent with such goals.”

[T]he conduct that engages the incivility concern begins with conduct that it is rude, unnecessarily abrasive, sarcastic, demeaning, abusive or of any like quality.  It is conduct that attacks the personal integrity of opponents, parties, witnesses or of the court, where there is an absence of a good faith basis for the attack, or the individual counsel has a good faith basis for the belief but that belief is not an objectively reasonable one.  In addition, single instances of such conduct will be less likely to engage the misconduct concern as will repeated instances of the same conduct.  In other words, a solitary instance of uncivil conduct will not, generally speaking, be sufficient to ground a complaint of professional misconduct, unless it is of a particularly egregious form.

– Justice Brown, Ontario Court of Appeal[161]

The duty of zealous advocacy forms part of the advocate’s larger duty of professionalism.  It is a codified obligation under the Conduct Rules and a defining element of the advocacy tradition in Canada.  It requires that an advocate: “raise fearlessly every issue, advance every argument, and ask every question, however distasteful” that the advocate thinks “will help the client’s case”.  It also requires that an advocate “endeavour to obtain for the client the benefit of every remedy and defence authorized by law”.

The existence of a strong, vigorous and responsible Defence Bar is essential in a free Society.

– G. Arthur Martin[162]

The courts have unreservedly acknowledged that zealous advocacy is fundamental to the advocate’s role: “zealous advocacy on behalf of a client, to advance the client’s case and protect that client’s rights, is a cornerstone of our adversary system”. But it is not absolute and must not be abused.  Nor do the Conduct Rules assign it paramountcy.  The Conduct Rules provide for a constellation of obligations that together make up the overarching duty of professionalism that conditions the privilege of practising law in Canada. 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, [1969] 1 A.C. 191, at pp. 227, captures this principle well:[163]

“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…”

I argued that law societies should refrain from prosecuting [lawyers] in those cases [of alleged incivility and professional misconduct before a judge] – nobody agreed with me and [Supreme Court of Canada] Justice Moldaver didn’t agree with me so that’s one important issue I argued all the way up and was not successful.

– Earl Cherniak, lawyer representing Joseph Groia for incivility and professional misconduct[164]

When lawyers are treating each other poorly and acting outrageously, then the public will rightly look upon the legal profession with disdain and mistrust. For example, in the case of Bedoya v. Aventura Limousine & Transp. Serv., Inc., a lawyer in Florida, over opposing counsel’s objections, demanded that depositions in the case take place at a noisy Dunkin Donuts. During the depositions, the attorney who demanded these depositions take place at Dunkin Donuts wore shorts and t-shirts, played the video game Angry Birds, and drew male genitalia. The lawyer’s defense of his behavior, which is typical, was that his actions represented zealous advocacy. The court disagreed and disqualified the lawyer and his firm from the case for, among other things, his consistent course of disrespectful and unprofessional behavior.[165]

The ABA Journal reported a story about a lawsuit filed by an attorney who slapped a prominent partner during a deposition. In New York, a Manhattan lawyer (‘slapper’), sued the opposing counsel (‘slappee’, and co-chairman of his law firm’s employment law section) after he slapped the other attorney during a deposition. The slapper lawyer claimed that the slappee lawyer ran up to his face wagging his finger and shouting, and spittle from the slappee’s mouth landed on the slapper’s face, all of which the slapper lawyer believed justified his slapping of the other lawyer.  After slapping the other lawyer, the slapper lawyer sued the other lawyer for one million dollars for assault by spittle and slander based on an allegation that the slapper lawyer called the slapper lawyer uncivilized, ignorant, and incompetent.[166] When the public hears of these examples of incivility by lawyers who are the representatives of the legal system, how could the public not lose confidence in the legal system, and how could a reasonable person maintain a positive perception of lawyers?[167]

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.

– Jayne Reardon, Member ABA Standing Committee on Professionalism[168]

It bears emphasis that these obligations are owed by all advocates, and due to all participants in the justice system.  The Advocates’ Society’s Principles afford helpful guidance to the profession on this issue.  As endorsed by appellate courts, they usefully inform the “standard of conduct required and expected of advocates”:[169]

“Advocates must “raise fearlessly every issue, advance every argument, and ask every question.”  At all times, however, they must represent their clients responsibly and with civility and integrity.  The duty of zealous representation must be balanced with duties to the court, to opposing counsel and to the administration of justice. …

The proper administration of justice requires the orderly and civil conduct of proceedings.  Advocates should, at all times, act with civility in accordance with the Principles of Civility for Advocates.  They should engage with opposing counsel in a civil manner even when faced with challenging issues, conflict and disagreement.”

The duty of zealous advocacy is coextensive with the advocate’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 all participants in the legal system 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.[170]

The lawyer’s duty of committed representation to a client’s cause does not require a lawyer to breach his or her duty of civility. Rather, the duty of committed and effective representation is “consistent with the lawyer taking appropriate steps” to ensure that his or her advocacy does not breach his or her professional obligations.[171]

The Supreme Court of Canada on June 1, 2018, reaffirmed the important role of the Law Society of Ontario … and the importance of both civility and resolute advocacy. … As the regulator of lawyers and paralegals in Ontario, the Law Society of Ontario is committed to promoting the highest standards of professionalism and civility. Professionalism, civility, courtesy and good faith are the underpinnings of the legal profession and must be maintained to protect and enhance the administration of justice – and its standing in the eyes of the public it serves.

– Law Society of Ontario, June 2018[172]

Conclusion

‘Thinking like a lawyer’ means “respecting the views of people who disagree with you”. It means “believing in the power of ideas and reasoned debate, and standing up in a principled and respectful way for your ideas even when others engage in shouting, name-calling, and hate mongering”. In “these challenging times”, it has been suggested, that “the world needs more people who think like lawyers” and are civil: “being civil will set you apart”.[173]

However, if the legal profession tolerates a legal culture of incivility – particularly among senior lawyers who may be looked upon as leaders and role models – we will continue to undermine our lawyers, our profession, and our system of justice. And, in these circumstances, the legal profession should not reasonably expect greater respect from the public.[174] Civility costs nothing, and buys everything[175]:[176]

“As leaders in society, lawyers must ensure that civility once again becomes a quality that defines us. We need to set the tone for constructive communication and rational decision-making. It starts with us and every individual committing to a more civil manner, insisting that civility be a part of meetings and interactions. Indeed, we need to hold ourselves and our leaders to a higher standard.”

Our occupation is one where we often deal in difficult circumstances with difficult people, and emotions often run high. 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 those already stressful and difficult circumstances.

– Law Society of BC v. Greene[177]

It has been suggested that today’s legal culture may be “incompatible with a sustainable legal profession”.[178] The legal profession’s regulators and leaders “must reflect on the relevance and importance of” the legal culture, civility, and “mental health to the ability of [lawyers] to meet their professional responsibilities and to serve the public”.[179] Programs driving cultural and behavioural change across the legal profession require a profession-wide approach. However, successful efforts will be more likely when law firms and legal departments – the places in which lawyers work day in and day out – also focus on those areas in which they are able to make a difference.[180] Given that a law firm or legal department and individual lawyers cannot fully address all the issues, multi-layered efforts must exist across a number of other groups (law societies; legal organizations and associations; law schools; judges; and government) to address gaps, assist in providing education, training, and continue the broader conversation addressing professional civility (which may include the legal and business environment, economic anxiety, mental health, addiction, etc.) in the legal profession.[181] In this context, legal and judicial leadership can play a valuable role in facilitating such dialogue and solutions – in particular systemic solutions.

In light of the impressionability of junior and poorly trained lawyers – and the civility predicament that the profession faces – it is imperative that all lawyers work towards a professionally ‘civil’ career. Many legal commentators and educators have recognized this need for years, as evidenced by the numerous articles in the literature addressing the civility “crisis” across jurisdictions, urging law societies, bar associations, and law schools to focus on civility issues to prepare law students for the issues they must – unfortunately – face in the real world.[182] Law firm and in-house leadership must train – and for some, retrain – their lawyers on the importance of civility in the practice of law.  Depending on the jurisdiction, bar associations and/or law societies should continue to provide guidance and leadership, and due to the importance of the issue, hold mandatory CLE courses to help all lawyers with professional civility issues (including senior lawyers).[183] All this, in part, because, as one chief justice has noted, “the tradition of civility that used to be transmitted to” our lawyers appears to be undermined and in many cases “gone”.[184]

The damage caused by our incivility may not be physical, but it is no less dangerous to democracy. And … we operate without constraint, perpetuating a culture of incivility.

– Cynthia M. Allen^[185]

The needed revitalization of civility – at this critical juncture in the evolution of the legal profession – should be seen by the legal profession “not as pain, but as gain”. As noted by legal commentators,[186] and the research bears out, ‘civil’ lawyers are more effective and achieve better outcomes, and they build better reputations and have improved job satisfaction. But, not only does the legal profession require lawyers to be civil, society requires it in order to preserve the profession “and survive as a civil society bound to the rule of law”.[187] Like civility, the rule of law – particularly at this point in time in our history – should not be taken for granted.[188]

The principle of civility is a foundation for democracy and the rule of law – and further deterioration of the legal culture[189] will not only undermine the legal profession, but also the administration of justice.  Senior lawyers, the judiciary, law schools, and Law societies are important leaders and actors in the culture change needed.

I am proud of my profession and the historic role attorneys have played as officers of the courts and as servants of the public in the administration of justice and democratic government. … It is not merely the right but the duty of members of the Bar to challenge the failure of the leadership of the organized Bar to set high standards and the failure of local bar associations to enforce the same high standards.

– Chief Justice Warren Burger[190]

Supporting civil discourse and the robust open exchange of diverse ideas and perspectives is an essential component of our legal systems and democracies across Western society. Democratic civility is not a natural state but demands work: it is one of the accomplishments of civilization,[191] and must be appropriately reflected in our legal profession and our systems of justice. One may withhold “civility” for a while without obvious effect, but eventually “the whole superstructure grinds to a halt or flies apart”.[192]

Many challenges that lawyers face today involve questions of values.  I am optimistic for the future of the legal profession. The challenge is to retain and nurture the core values that have traditionally been important to lawyers as professionals.

Eric Sigurdson

 

Endnotes:

[1] By civil discourse, we mean “robust, honest, frank and constructive dialogue and deliberation that seeks to advance the public interest” (Carli Brosseau, Executive Session: Civil Discourse in Progress, Frankly Speaking, Vol. 1, No. 2, October 27, 2011); Jennifer Kavanagh and Michael Rich, Truth Decay: An Initial Exploration of the Diminishing Role of Facts and Analysis in American Public Life, Rand, 2018, page 192.

[2] Jennifer Kavanagh and Michael Rich, Truth Decay: An Initial Exploration of the Diminishing Role of Facts and Analysis in American Public Life, Rand, 2018.

[3] Phoebe Griffith, Will Norman, Carmel O’Sullivan, and Rushanara Ali, Charm Offensive: Cultivating civility in 21^st Century Britain, Young Foundation.org, 2011; Chris Hannay, Civility: It’s the glue that holds society together, Globe and Mail, July 12, 2013; John Hall, The importance of Being Civil: The Struggle for Political Decency, Princeton University Press, 2013.

[4] See, Eric Sigurdson, Civility, the Rule of Law, and Lawyers: the ‘glue’ that binds society against social crisis – is incivility the ‘ugly new normal’ in government, politics, Sigurdson Post, November 25, 2016.

[5] 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.

[6] 2018 Edelman Trust Barometer, Edelman.com.

[7] See, for example: David Paul Kuhn, The Incredible Polarization and Politicization of the Supreme Court, The Atlantic, June 29, 2012 (“the one branch of government designed to be above partisanship echoes the rise in hyperpartisanship seen throughout Washington.”); Adam Liptak, The Polarized Court, New York Times, May 10, 2014 (“The partisan polarization on the court reflects similarly deep divisions in Congress, the electorate and the elite circles in which the justices move. … The perception that partisan politics has infected the court’s work may do lasting damage to its prestige and authority and to Americans’ faith in the rule of law.”); Lucas Rodrquez, The Troubling Partisanship of the Supreme Court, Stanford Politics (Non-partisan Student) Newsmagazine, January 7, 2016; John Daniel Davidson, Americans Are Losing Confidence in the Supreme Court, The Federalist, June 29, 2016 (“Americans increasingly view the Supreme Court not as a revered body of judges considering questions of law, but as ideologues engaged at the front lines of America’s culture wars”.); Aylin Aydin, Judicial Independence across Democratic Regimes: Understanding the Varying Impact of Political Competition, Law & Society Review, Vol. 47, Issue 1, March 2013; The Decline of Democracy and the Rule of Law: How to Preserve the Rule of Law and Judicial Independence, Remarks of the Right Honourable Beverley McLachlin, P.C. Chief Justice of Canada, SCC-CSC.ca, September 28, 2017; Jessica Walsh, A Double-Edged Sword: Judicial Independence and Accountability in Latin America, International Bar Association’s Human Rights Institute, April 2016; Alexadra Brzozowski, EU rule of law generally good but clouds on the horizon, Euractiv.com, May 29, 2018.

[8] Eric Sigurdson, Corporate Strategy and Geopolitical Risk in a G-Zero World: Inequality, Polarized Democracies, and the shifting economic and political landscape, Sigurdson Post, May 31, 2018; Richard Wike, Katie Simmons, Bruce Stokes, and Janell Fetterolf, Globally, Broad Support for Representative and Direct Democracy: 1. Many unhappy with current political system, Pew Research Center (Pew Global.org), October 16, 2017. Also see, for example: 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); Ilya Somin, The disturbing growth of partisan bias, Washington Post, December 9, 2015; Saskia Brenchenmacher, Comparing Democratic Distress in the United States and Europe, Carnegie Endowment, June 21, 2018; R. Wayne Thorpe (Chair, Section of Dispute Resolution), Report to the House of Delegates: Resolution 108, American Bar Association, August 2011; Randolph Roth, How the erosion of trust leads to murders and mass shootings, Washington Post, October 6, 2017; Deepa Naraya, Raj Patel, Kai Schaffit, Anne Rademacher, and Sarah Koch-Schulte, Voices of the Poor: Can Anyone Hear Us?, Oxford University Press for the World Bank (World Bank eLibrary), 2000: see Chapter 6: Social Fragmentation; Lawrence Martin, Is the U.S. on the brink of civil unrest?, Globe and Mail, June 26, 2018.

[9] Jennifer Kavanagh and Michael Rich, Truth Decay: An Initial Exploration of the Diminishing Role of Facts and Analysis in American Public Life, Rand, 2018, page 195-199; Jennifer Kavanagh and Michael Rich, Truth Decay in public discourse and how to fight it, World Economic Forum, May 17, 2018 [note: article part of World Economic Forum’s Geostrategy platform]; Phoebe Griffith, Will Norman, Carmel O’Sullivan, and Rushanara Ali, Charm Offensive: Cultivating civility in 21^st Century Britain, Young Foundation.org, 2011; Christine Porath, Mastering Civility: A Manifesto for the Workplace, Grand Central Publishing, 2016; Christine Porath, The hidden toll of workplace incivility, McKinsey Quarterly, December 2016; Christine Porath and Christine Pearson, The Price of Incivility, Harvard Business Review, January-February 2013; Aloke Chakravarty, A Call For Ethics and Civility in Governance and Litigation: Changing Culture and Increasing Accountability, 4 Emory Corporate Governance and Accountability Review 37, 2017; David Goodhart, The age of incivility: how social media amplifies our differences, The Spectator.co.uk, June 9, 2018; Peter Baker and Katie Rogers, In Trump’s America, the Conversation Turns Ugly and Angry, Starting at the Top, New York Times, June 20, 2018; Jayne Reardon, Civility in America – It Matters, 2civility.org, November 6, 2017; Daniel Dale, Bruce Campion-Smith, and Tonda Maccharles, ‘Special place in hell’: Trump aides hurl insults at Trudeau in unprecedented U.S. attack on Canadian leader, Toronto Star, June 10, 2018; Thomas Plante, Ph.D, ABPP, Stand Up for Civility, Psychology Today, July 17, 2017; Harry Eyres, Civilisation, or civility?, Financial Times, October 14, 2011; John Hall, The importance of Being Civil: The Struggle for Political Decency, Princeton University Press, 2013; Rupert Myers, Respect and civility in public discourse have evaporated with Brexit, The Guardian, June 27, 2016; James Graham, Enemies, traitors, saboteurs: how can we face the future with this anger in our politics: first step must be greater civility, The Guardian, February 17, 2018; Adam Lent, A crisis of civility, Renewal: a journal of social democracy, Vol. 16 No. 3 / 4, 2008; Clare Beckton, Canada Has Lost Its Civility, Huffington Post, June 17, 2016; Kathleen Hall Jamieson, Allyson Volinsky, Ilana Weitz, and Kate Kenski, The Political Uses and Abuses of Civility and Incivility, Oxford Handbook of Political Communication, August 2017; John McCormick, Before we blame the EU for all our woes, is there anyone doing any better, Guardian, May 8, 2013 (“… incivility in public discourse…”); Angelo Antoci, Alexia Delfino, Fabio Palieri, Fabrizio Panebianco, and Fabio Sabantini, Civility vs. Incivility in Online Social Interactions: An Evolutionary Approach, journals.plos.org (PLoS One, vol. 11(11)), November 1, 2016; Andray Domise, It’s too late for civility in American politics, MacLeans.ca, June 26, 2018; Jonathan Bernstein, Civility is Important in a Democracy. So Is Dissent, Bloomberg.com, June 26, 2018; Philip Bump, The irony of Washington’s ‘civility’ debate: Trump already proved that incivility works, Washington Post, June 25, 2018.

[10] Eric Sigurdson, Civility, the Rule of Law, and Lawyers: the ‘glue’ that binds society against social crisis – is incivility the ‘ugly new normal’ in government, politics, Sigurdson Post, November 25, 2016; Jayne R. Reardon, Civility as the Core of Professionalism, American Bar Association, 2014. Also see, What is the Rule of Law?: The Four Universal Principles, World Justice Project.org; Rule of Law Index 2017-2018, World Justice Project, 2018; 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:

• The government and its officials and agents as well as individuals and private entities are accountable under the law.
• 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.
• The process by which the laws are enacted, administered, and enforced is accessible, fair, and efficient.
• 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.”

[11] Editor, Civility in America 2018: Amid Political Party Conflict, Individuals Agree: Erosion of Civility is Harming Our Democracy, WeberShandick.com, March 1, 2018; Jennifer Kavanagh and Michael Rich, Truth Decay: An Initial Exploration of the Diminishing Role of Facts and Analysis in American Public Life, Rand, 2018, page 195-199; Jennifer Kavanagh and Michael Rich, Truth Decay in public discourse and how to fight it, World Economic Forum, May 17, 2018 [note: article part of World Economic Forum’s Geostrategy platform]; Aloke Chakravarty, A Call For Ethics and Civility in Governance and Litigation: Changing Culture and Increasing Accountability, 4 Emory Corporate Governance and Accountability Review 37, 2017.  Also see, Editor, Civility in America 2017: The State of Civility, WeberShandick.com, January 2017; Editor, Civility in America 2016: U.S. Facing a Civility Crisis Affecting Public Discourse and Political Action, WeberShandick.com, January 28, 2016; Eduardo Mendieta, Civility at the core of American democracy, whatever politicians say, The Conversation, November 7, 2016. In addition, see: Abbott L. Ferriss, Studying and Measuring Civility: A Framework, Trends and Scale, Sociological Inquiry, Vol. 72, Issue 3, 2002; Cynthia Clark, Eric Lundrum, and Danh Nguyen, Development and Description of the Organizational Civility Scale, The Journal of Theory Construction & Testing, Vol. 17, No. 1, 2013; Benjamin Walsh, Vicki Magley, David Reeves, Kimberly Davies-Schrils, Matthew Marmet, and Jessica Gallus, Assessing Workgroup Norms for Civility: The Development of the Civility Norms Questionnaire, Journal of Business and Psychology, Vol. 27, 2012.

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

[13] Tom Bingham, The Rule of Law, Penguin Random House, 2011; Eric Sigurdson, Corporate Strategy and Geopolitical Risk in a G-Zero World: Inequality, Polarized Democracies, and the shifting economic and political landscape, Sigurdson Post, May 31, 2018.

[14] Mark Cohen, The All-Out Assault on the Rule of Law, Forbes, February 20, 2017.

[15] For example, see: Adam Liptak, The Polarized Court, New York Times, May 10, 2014 (“The partisan polarization on the court reflects similarly deep divisions in Congress, the electorate and the elite circles in which the justices move. … The perception that partisan politics has infected the court’s work may do lasting damage to its prestige and authority and to Americans’ faith in the rule of law.” … “An undesirable consequence of the court’s partisan divide, is that it becomes increasingly difficult to contend with a straight face that constitutional law is not simply politics by other means, and that justices are not merely politicians clad in fine robes.”); John Daniel Davidson, Americans Are Losing Confidence in the Supreme Court, The Federalist, June 29, 2016 (“If Americans increasingly don’t believe the Supreme Court cares all that much about matters of law, perhaps it’s because the court’s rulings increasingly appear to be motivated by politics and preferred policy outcomes rather than the rule of law or even consistent legal reasoning”.); Kenneth Grady, The Election, the Rule of Law, and the Role of Lawyers, Seytlines.com, November 17, 2016:

“Overall, in 2016, the WJP ranked the United States 18 out of 113 countries on the [Rule of Law] Index—an okay ranking but certainly not world class. For the category access to civil justice, the United States ranked a measly 28 out of those 113 countries. For comparison, in addition to countries you might expect such as Germany, Japan, the United Kingdom, and Canada, other countries outscoring the United States included Estonia, Uruguay, and Barbados.

The following quote from Judge Jed S. Rakoff, a United States District Judge on senior status for the Southern District of New York, elucidates one part of the problem:

“Over the past few decades, ordinary US citizens have increasingly been denied effective access to their courts. There are many reasons for this. One is the ever greater cost of hiring a lawyer. A second factor is the increased expense, apart from legal fees, that a litigant must pay to pursue a lawsuit to conclusion. A third factor is increased unwillingness of lawyers to take a case on a contingent-fee basis when the anticipated monetary award is modest. A fourth factor is the decline of unions and other institutions that provide their members with free legal representation. A fifth factor is the imposition of mandatory arbitration. A sixth factor is judicial hostility to class action suits. A seventh factor is the increasing diversion of legal disputes to regulatory agencies. An eighth factor, in criminal cases, is the vastly increased risk of a heavy penalty in going to trial.

For these and other reasons, many Americans with ordinary legal disputes never get the day in court that they imagined they were guaranteed by the law. A further result is that most legal disputes are rarely decided by judges, and almost never by juries. And still another result is that the function of the judiciary as a check on the power of the executive and legislative branches and as an independent forum for the resolution of legal disputes has substantially diminished—with the all-too-willing acquiescence of the judiciary itself.”

The rule of law we hear about is not the rule of law most in the United States experience.”

[16] Brad Karp and Gary Wingens, The Law Did Not Create This Crisis, but Lawyers Will Help End It, New York Times, June 25, 2018 (“We speak for a group of lawyers who lead 34 major American law firms. … We are professionally obligated to safeguard the rule of law”).  Kenneth Grady, The Election, the Rule of Law, and the Role of Lawyers, Seytlines.com, November 17, 2016; Judge Sanji Monageng, Lawyers: Guardians of the Rule of Law, International Bar Association Criminal Court Programme, World Forum Conference Center, The Hague, Netherlands, November 20, 2012; Blake Morant, Lawyers as Conservators and Guardians: Justice, The Rule of Law, and the Relevance of Sir Thomas More, 2012 Mich. St. L. Rev. 647; Jayne R. Reardon, Civility as the Core of Professionalism, American Bar Association, 2014 (“As the guardians of the Rule of Law…”).

[17] Mark Cohen, The All-Out Assault on the Rule of Law, Forbes, February 20, 2017.

[18] Mark Cohen, The All-Out Assault on the Rule of Law, Forbes, February 20, 2017.

[19] Robert C. Josefsberg, The Topic is Civility: You Got a Problem with That?, Oregon State Bar Bulletin, January 1999 (Reprinted with permission: Fulfilling a Public Trust: The Professional Lawyer, Oregon State Bar CLE Seminars, March 17, 2017); Sol Linowitz, The Betrayed Profession: Lawyering at the End of the Twentieth Century, Charles Scribner’s Sons, 1994, page 208 [former senior partner of Coudert Brothers and former general counsel and chairman of the board of Xerox].

[20] Brad Karp and Gary Wingens, The Law Did Not Create This Crisis, but Lawyers Will Help End It, New York Times, June 25, 2018 (“We speak for a group of lawyers who lead 34 major American law firms. … We are professionally obligated to safeguard the rule of law”).  Kenneth Grady, The Election, the Rule of Law, and the Role of Lawyers, Seytlines.com, November 17, 2016; Judge Sanji Monageng, Lawyers: Guardians of the Rule of Law, International Bar Association Criminal Court Programme, World Forum Conference Center, The Hague, Netherlands, November 20, 2012; Blake Morant, Lawyers as Conservators and Guardians: Justice, The Rule of Law, and the Relevance of Sir Thomas More, 2012 Mich. St. L. Rev. 647; Jayne R. Reardon, Civility as the Core of Professionalism, American Bar Association, 2014 (“As the guardians of the Rule of Law…”).

[21] 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]

[22] Andrew Whitworth, Why Civility In Itself Can’t Be the End Goal, Shared Justice, February 14, 2017.

[23] Andrew Whitworth, Why Civility In Itself Can’t Be the End Goal, Shared Justice, February 14, 2017; Austin Sarat (editor), Civility, Legality, and Justice in America, Cambridge University Press, 2014.

[24] Mark Cohen, The All-Out Assault on the Rule of Law, Forbes, February 20, 2017.

[25] Aloke Chakravarty, A Call For Ethics and Civility in Governance and Litigation: Changing Culture and Increasing Accountability, 4 Emory Corporate Governance and Accountability Review 37, 2017.

[26] Linda Klein, One Word: Civility, ABA Journal, February 2017.

[27] Eric Sigurdson, The Evolving Legal Service Delivery Model: A 2018 Survival Guide for BigLaw and Traditional Law Firms – building a new business model, Sigurdson Post, January 14, 2018.

[28] Jae Um, Outwit, Outplay, Outlast: A Post-Recession View of the Survivors, The American Lawyer, June 20, 2018.

[29] Sandee Magliozzi, How Moving from ‘Best’ to ‘Next’ Practices Can Fuel Innovation, Santa Clara Law Faculty Publications, November 2015.

[30] Eric Sigurdson, Legal Profession on the Precipice: Artificial Intelligence, Machine Learning, and Legal Technology, Sigurdson Post, July 31, 2017; Eric Sigurdson, The Global Corporate Legal Market: Rise of the Big Four Accounting Firms as an alternative legal services delivery model – from ‘multidisciplinary’ professional service firms to ‘globally integrated’ business solution providers, Sigurdson Post, March 27, 2017; Eric Sigurdson, Alternative Business Structures, Competition, and Legal Services Delivery: The Case for ABSs v. the Legal Profession’s Monopoly in North America, Sigurdson Post, November 7, 2017; Eric Sigurdson, The Legal Culture: Chronic Stress, Mental Illness and Addiction – Law Firms, Legal Departments, and Eight Organizational Strategies to reduce Burnout and promote Engagement, Sigurdson Post, November 19, 2017; Eric Sigurdson, The Evolving Legal Service Delivery Model: A 2018 Survival Guide for BigLaw and Traditional Law Firms – building a new business model, Sigurdson Post, January 14, 2018.

[31] Jayne R. Reardon, Civility as the Core of Professionalism, American Bar Association, 2014; Cheryl B. Preston & Hilary Lawrence, Incentivizing Lawyers to Play Nice: A National Survey of Civility Standards and Options for Enforcement, 48 U. Mich. Journal of Law Reform 701, 2015; Robert C. Josefsberg, The Topic is Civility: You Got a Problem with That?, Oregon State Bar Bulletin, January 1999 (Reprinted with permission: Fulfilling a Public Trust: The Professional Lawyer, Oregon State Bar CLE Seminars, March 17, 2017); Justice Philip McMurdo, Civility and Professional Courtesy, Queensland Law Society Symposium 2014, March 21, 2014; Lawyer bullies, incivility: On policing lawyer manners, American Bar Association, October 2015;  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; 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; David Grenardo, Enforcing Civility: Holding Attorneys to a Higher Standard of Conduct, 39^th Annual American Bar Association National Conference on Professional Responsibility, May 2013; Warren E. Burger, The Decline of Professionalism, 63 Fordham L. Rev. 949 (1995); Lonnie Johnson, Civil ≠ Zealous?, Clendening, Johnson & Bohrer (lawcjb.com), February 26, 2014; Michelle O’Neil, Is civility on the decline? (Part 1 of 4), Dallas Divorce Law Blog, April 16, 2018; Gregory Sidlofsky and David Wagner, How to deal with lawyers who are bullies, Wagner Sidlofsky.com, May 25, 2018; Anna Wong, Drawing the fine line between zealous advocacy and incivility, The Lawyer’s Daily, March 10, 2017; Gaye Lansdell, Reflections on ‘professionalism’ and legal practice – an outmoded ideology or an analytically useful category?, Legal Ethics, 19:2, 2016.

[32] See for example: Walter Bennett, The Lawyer’s Myth: Reviving Ideals in the Legal Profession, University of Chicago Press, 2001; Laurence Digesti, Civility in the Legal Profession, Message from the President (State Bar of Nevada), 24 Nev. Law. 4, February 2016; Maryam Omari and Megan Paull, ‘Shut up and bill’: workplace bullying challenges for the legal profession, International Journal of the Legal Profession, 20:2, 141-160, 2014; Jayne Reardon, Lawyers and Judges Engage in Education for Change, LinkedIn, November 28, 2016; Mark Baer, Is Bullying Back the Only Option When Dealing with Bullies?, Huffington Post, September 23, 2017; Illinois Supreme Court Commission on Professionalism, Commission Origin, 2Civility.org:

“Why Civility Matters

Our mission “…to promote a culture of civility and inclusion, in which Illinois lawyers and judges embody the ideals of the legal profession in service to the administration of justice in our democratic society” started with a concern that a win-at-all-costs advocacy was clouding attorneys’ judgment and damaging the profession.

It’s easy to view legal professionals as over-commercialized, under civilized, and oblivious to the vision of the law as a learned, dignified profession. Yet, the vast majority of lawyers recognizes the importance of civility and yearns to be part of the effort to make the system better.”

[33] Claire Bushey, Law in 2018: It’s looking a little “Hunger Games” out there, Crain’s Chicago Business, December 29, 2017.

[34] “Call to the Bar” definition: The official moment that a lawyer is sworn or entered into a law society or state bar or court and thereafter licensed to practice law in that jurisdiction. The call to the bar is a legal term of art in most common law jurisdictions where lawyers must be qualified to be allowed to present in court on behalf of another party. A licensed lawyer is said to be “called to the bar” or to have received a “call to the bar”. Common law jurisdictions include Australia, England and Wales, New Zealand, Canada, Ireland, Hong Kong, India, the United States, among others.

[35] Hassan M. Ahmad, Despair Ahead: Millennial lawyers and the legal job market, Canadian Lawyer, July 10, 2017; Jane Croft, Artificial Intelligence closes in on the work of junior lawyers, Financial Times, May 4, 2017; Michael Bromley, AI, Contracting and Outsourcing – what will a ’first year lawyer’ be in 2025, EA International.com, November 21, 2016; Steve Lohr, AI is Doing Legal Work. But It Won’t Replace Lawyers, Yet, New York Times, March 19, 2017:

“Corporate clients often are no longer willing to pay high hourly rates to law firms for junior lawyers to do routine work. Those tasks are already being automated and outsourced, both by the firms themselves and by outside suppliers like Axiom, Thomson Reuters, Elevate and the Big Four accounting firms”

But see, Thomas Connelly, Why the ascendence of AI can benefit young lawyers, Legal Cheek.com, March 7, 2017.

[36] Jayne R. Reardon, Alternative Business Structures: Good for the Public, Good for the Lawyers, 7:2 St. Mary’s Journal on Legal Malpractice & Ethics 304, 2017; CBA Legal Futures Initiative, Futures: Transforming the Delivery of Legal Services in Canada, Canadian Bar Association, 2014; Charlie Gillis, Do we really need so many lawyers? – Barrister boom and bust: Legal fees are falling, pay is stagnant and jobs for law grads are harder to come by, MacLeans, September 22, 2013; Charlotte Santry, The expectation gap: Canadian Lawyer Compensation Survey, Canadian Lawyer, July 2, 2013; Nancy Macdonald, The $100,000 club: Who’s really making big money these days – Canada’s new upper class: firefighters, police officers, teachers, MacLeans, April 15, 2013 (“With an average income of $83,500, schoolteachers in Ontario now earn the same as the average lawyer in the province”); Siobhan McClelland, Becoming a Lawyer: Is A Law Degree Still a ‘Golden Ticket’?, Huffington Post, September 4, 2012; Charlie Gillis, Do we really need so many lawyers? – Barrister boom and bust: Legal fees are falling, pay is stagnant and jobs for law grads are harder to come by, MacLeans, September 22, 2013; Ted Tjaden, Letter to a Law Student, Slaw (Canada’s online legal magazine), October 19, 2011; Law School in Canada: what will it cost?: comparing tuition fees at Canada’s common and civil law schools, Macleans, September 24, 2014; University of Toronto JD (Law School) tuition fees: 2016-2017 academic year – $34,734.82 [http://www.law.utoronto.ca/academic-programs/jd-program/financial-aid-and-fees/student-fees-jd-program#jd_fees]; Ryan Bhandari, Is it Still Worth it to Go to Law School?, Equities.com, July 16, 2015; Michelle Fox, Law School economics changing the reality for legal hopefuls, CNBC.com, May 9, 2015; Sarah Rankin, Today’s law grad: Six figures in debt and heading to Bay Street, Globe and Mail, April 2, 2013.

[37] Lawyers and Stress, CBA National Magazine, June 2013; C. Stuart Mauney, The Lawyers’ Epidemic: Depression, Suicide and Substance Abuse, January 2012. Also see: Patrick Krill, Ryan Johnson, and Linda Albert, The Prevalence of Substance Use and Other Mental Health Concerns Among American Attorneys, 10 Journal of Addiction Medicine 46, February 2016; ABA, Hazelden Betty Ford Foundation release first National Study on Attorney Substance Use, Mental Health Concerns, Hazelden Betty Ford Foundation, February 3, 2016; Will McDowell (Chair), Mental Health Strategy Task Force: Final Report to Convocation, Law Society of Upper Canada, April 28, 2016; Bree Buchanan and James Coyle (Task Force Chairs), National Task Force on Lawyer Well-Being: Creating a Movement to Improve Well-Being in the Legal Profession, American Bar Association, August 14, 2017; American Bar Association, The Path to Lawyer Well-Being: Practical Recommendations for Positive Change, The Report of the National Task Force on Lawyer Well-Being, August 2017. Also see, Laura Helm, Mental Health and the Legal Profession: A Preventative Strategy – Final Report, Law Institute of Victoria (Australia), September 11, 2014 (“almost a third of solicitors and one in five barristers surveyed suffered from clinical depression.”).

[38] Aidan Macnab, High-pressure law jobs linked to depression, Canadian Lawyer, October 26, 2017. Also see, Melodi Alopaeus, The Ethics of 24/7 Lawyering, Slaw, April 9, 2013.

[39] ABA, Hazelden Betty Ford Foundation release first National Study on Attorney Substance Use, Mental Health Concerns, Hazelden Betty Ford Foundation, February 3, 2016. Also see,  Patrick Krill, Ryan Johnson, and Linda Albert, The Prevalence of Substance Use and Other Mental Health Concerns Among American Attorneys, 10 Journal of Addiction Medicine 46, February 2016.

[40] Bree Buchanan and James Coyle (Task Force Chairs), National Task Force on Lawyer Well-Being: Creating a Movement to Improve Well-Being in the Legal Profession, American Bar Association, August 14, 2017; American Bar Association, The Path to Lawyer Well-Being: Practical Recommendations for Positive Change, The Report of the National Task Force on Lawyer Well-Being, August 2017.

[41] See, for discussion purposes: Sylvia Corthorn, Kelly Santini, and Reena Goyal, A Lawyer’s Duty to Society, Duty to Society: Symposium on Professionalism, The Advocacy Society (Institute for Civility and Professionalism), January 21, 2008; Kenneth Grady, The Election, the Rule of Law, and the Role of Lawyers, Seytlines.com, November 17, 2016.

[42] Nicole Ireland, ‘The impact on society is enormous’: In legal profession, depression, addiction hurt clients, too, CBC, November 26, 2016. Also see, for example: Diane Shannon, Fix the system to address physician burnout, KevinMD.com, October 31, 2017; Patrick Krill, Ryan Johnson, and Linda Albert, The Prevalence of Substance Use and Other Mental Health Concerns Among American Attorneys, 10 Journal of Addiction Medicine 46, February 2016.

[43] Will McDowell (Chair), Mental Health Strategy Task Force: Final Report to Convocation, Law Society of Upper Canada, April 28, 2016.

[44] Bree Buchanan and James Coyle (Task Force Chairs), National Task Force on Lawyer Well-Being: Creating a Movement to Improve Well-Being in the Legal Profession, American Bar Association, August 14, 2017; American Bar Association, The Path to Lawyer Well-Being: Practical Recommendations for Positive Change, The Report of the National Task Force on Lawyer Well-Being, August 2017.

[45] See, Eric Sigurdson, Alternative Business Structures, Competition, and Legal Services Delivery: The Case for ABSs v. The Legal Profession’s Monopoly in North America, Sigurdson Post, November 7, 2017.

[46] 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.

[47] Brad Karp and Gary Wingens, The Law Did Not Create This Crisis, but Lawyers Will Help End It, New York Times, June 25, 2018 (“We speak for a group of lawyers who lead 34 major American law firms. … We are professionally obligated to safeguard the rule of law”).  Kenneth Grady, The Election, the Rule of Law, and the Role of Lawyers, Seytlines.com, November 17, 2016; Judge Sanji Monageng, Lawyers: Guardians of the Rule of Law, International Bar Association Criminal Court Programme, World Forum Conference Center, The Hague, Netherlands, November 20, 2012; Blake Morant, Lawyers as Conservators and Guardians: Justice, The Rule of Law, and the Relevance of Sir Thomas More, 2012 Mich. St. L. Rev. 647; Jayne R. Reardon, Civility as the Core of Professionalism, American Bar Association, 2014 (“As the guardians of the Rule of Law…”).

[48] Sylvia Corthorn, Kelly Santini, and Reena Goyal, A Lawyer’s Duty to Society, Duty to Society: Symposium on Professionalism, The Advocacy Society (Institute for Civility and Professionalism), January 21, 2008:

“The Canadian legal system is rooted in the two pillars of democracy and the rule of law. If lawyers are the officers and/or guardians of the Canadian legal system, then they arguably have a professional responsibility to support, and even stand up for those principles.”

[49] Tonda MacCharles, Canada’s top judge says Supreme Court should provide leadership at a time when fundamental values are being undermined in the world, Toronto Star, June 22, 2018.

[50] Richard Thaler and Cass Sunstein, Nudge: Improving Decisions about Health, Wealth, and Happiness, Yale University Press, 2008, page 235 [Note: Richard Thaler is the winner of the 2017 Nobel Prize in Economics. Named a Best Book of the Year by The Economist and the Financial Times]; Jennifer Kavanagh and Michael Rich, Truth Decay: An Initial Exploration of the Diminishing Role of Facts and Analysis in American Public Life, Rand, 2018; Peter Baker and Katie Rogers, In Trump’s America, the Conversation Turns Ugly and Angry, Starting at the Top, New York Times, June 20, 2018; Jayne Reardon, Civility in America – It Matters, 2civility.org, November 6, 2017; Harry Eyres, Civilisation, or civility?, Financial Times, October 14, 2011; Gerald Sieb, Civil Discourse in Decline: Where Does it End, Wall Street Journal, May 29, 2017; Thomas Plante, Ph.D, ABPP, Is Civility Dead in America? We seem to be living in a more and more uncivil society. We don’t have to, Psychology Today, July 11, 2016; Christine Porath, Mastering Civility: A Manifesto for the Workplace, Grand Central Publishing, 2016; Christine Porath, The hidden toll of workplace incivility, McKinsey Quarterly, December 2016; Christine Porath and Christine Pearson, The Price of Incivility, Harvard Business Review, January-February 2013; Aloke Chakravarty, A Call For Ethics and Civility in Governance and Litigation: Changing Culture and Increasing Accountability, 4 Emory Corporate Governance and Accountability Review 37, 2017; Daniel Dale, Bruce Campion-Smith, and Tonda Maccharles, ‘Special place in hell’: Trump aides hurl insults at Trudeau in unprecedented U.S. attack on Canadian leader, Toronto Star, June 10, 2018; Eduardo Mendieta, Civility at the core of American democracy, whatever politicians say, The Conversation, November 7, 2016;  Dr. Marie Bountrogianni, In 2018, Let’s Bring Civility Back to the Workplace, Huffington Post, December 21, 2017; Matthew Karnitschnig, Angela Merkel on Trump’s G7 show: It’s ‘depressing’, Politico, June 11, 2018; Anthony Marcum, Congress should take a lesson on civility from the Supreme Court, The Hill, June 7, 2018; Jeffrey Goldberg, A Senior White House Official Defines the Trump Doctrine: ‘We’re America, Bitch’, The Atlantic, June 11, 2018; Thomas Plante, Ph.D, ABPP, Stand Up for Civility, Psychology Today, July 17, 2017. Also see, for example: 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; Nicholas Kristof, Donald Trump is Making America Meaner, New York Times, August 13, 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.”); Andray Domise, It’s too late for civility in American politics, MacLeans.ca, June 26, 2018; Jonathan Bernstein, Civility is Important in a Democracy. So Is Dissent, Bloomberg.com, June 26, 2018; Philip Bump, The irony of Washington’s ‘civility’ debate: Trump already proved that incivility works, Washington Post, June 25, 2018.

[51] Editor, Civility in America 2018: Amid Political Party Conflict, Individuals Agree: Erosion of Civility is Harming Our Democracy, WeberShandick.com, March 1, 2018 (93% “of the public agrees that the nation has a civility problem with Democrats (69%) and Republicans (73%) acknowledging that it’s a ‘major’ problem”); Editor, Civility in America 2017: The State of Civility, WeberShandick.com, January 2017 (75%: ‘incivility in America has risen to crisis levels’); Editor, Civility in America 2016: U.S. Facing a Civility Crisis Affecting Public Discourse and Political Action, WeberShandick.com, January 28, 2016 (70%: ‘incivility in America has risen to crisis levels’); Michelle Silverthorn, Has America Lost her Civility?, 2civility.org, November 2, 2016; NORC at the University of Chicago, Americans believe civility is on the decline, Science Daily.com, April 22, 2016; 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; 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; 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.

[52] Editor, Civility in America 2016: U.S. Facing a Civility Crisis Affecting Public Discourse and Political Action, WeberShandick.com, January 28, 2016; Jonathan Knee, Fostering Civility in a Time of Disrespect, New York Times, December 23, 2016; Gerald Sieb, Civil Discourse in Decline: Where Does it End, Wall Street Journal, May 29, 2017; Jayne Reardon, Civility in America – It Matters, 2civility.org, November 6, 2017; Thomas Plante, Ph.D, ABPP, Is Civility Dead in America? We seem to be living in a more and more uncivil society. We don’t have to, Psychology Today, July 11, 2016; Christine Porath, Mastering Civility: A Manifesto for the Workplace, Grand Central Publishing, 2016; Christine Porath, The hidden toll of workplace incivility, McKinsey Quarterly, December 2016; Christine Porath and Christine Pearson, The Price of Incivility, Harvard Business Review, January-February 2013; Aloke Chakravarty, A Call For Ethics and Civility in Governance and Litigation: Changing Culture and Increasing Accountability, 4 Emory Corporate Governance and Accountability Review 37, 2017; Eduardo Mendieta, Civility at the core of American democracy, whatever politicians say, The Conversation, November 7, 2016; Dr. Marie Bountrogianni, In 2018, Let’s Bring Civility Back to the Workplace, Huffington Post, December 21, 2017; Matthew Karnitschnig, Angela Merkel on Trump’s G7 show: It’s ‘depressing’, Politico, June 11, 2018; Daniel Dale, Bruce Campion-Smith, and Tonda Maccharles, ‘Special place in hell’: Trump aides hurl insults at Trudeau in unprecedented U.S. attack on Canadian leader, Toronto Star, June 10, 2018; Anthony Marcum, Congress should take a lesson on civility from the Supreme Court, The Hill, June 7, 2018; Jeffrey Goldberg, A Senior White House Official Defines the Trump Doctrine: ‘We’re America, Bitch’, The Atlantic, June 11, 2018; Thomas Plante, Ph.D, ABPP, Stand Up for Civility, Psychology Today, July 17, 2017. Also see, for example: 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; Nicholas Kristof, Donald Trump is Making America Meaner, New York Times, August 13, 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; Andray Domise, It’s too late for civility in American politics, MacLeans.ca, June 26, 2018; Jonathan Bernstein, Civility is Important in a Democracy. So Is Dissent, Bloomberg.com, June 26, 2018; Philip Bump, The irony of Washington’s ‘civility’ debate: Trump already proved that incivility works, Washington Post, June 25, 2018.

[53] Excerpts from the Chief Justice’s Speech on the Need for Civility, New York Times, May 19, 1971.

[54] Daniel Dale, Bruce Campion-Smith, and Tonda Maccharles, ‘Special place in hell’: Trump aides hurl insults at Trudeau in unprecedented U.S. attack on Canadian leader, Toronto Star, June 10, 2018. Also see, Penny Collenette, With Donald Trump, silence is not an option, Toronto Star, June 24, 2018:

“… Donald Trump … mocks war heroes like Senator John McCain and insults prime ministers such as Justin Trudeau. He sees no issue with being rude and crude, especially when it comes to women. He uses dehumanizing language, likening immigrants to animals.”

[55] Richard Thaler and Cass Sunstein, Nudge: Improving Decisions about Health, Wealth, and Happiness, Yale University Press, 2008, page 235 [Note: Richard Thaler is the winner of the 2017 Nobel Prize in Economics. Named a Best Book of the Year by The Economist and the Financial Times]. Also see, Jennifer Kavanagh and Michael Rich, Truth Decay: An Initial Exploration of the Diminishing Role of Facts and Analysis in American Public Life, Rand, 2018, page 195-197; Jennifer Kavanagh and Michael Rich, Truth Decay in public discourse and how to fight it, World Economic Forum, May 17, 2018 [note: article part of World Economic Forum’s Geostrategy platform]; Jeffrey Goldberg, A Senior White House Official Defines the Trump Doctrine: ‘We’re America, Bitch’, The Atlantic, June 11, 2018; Christine Porath, Mastering Civility: A Manifesto for the Workplace, Grand Central Publishing, 2016; Christine Porath, The hidden toll of workplace incivility, McKinsey Quarterly, December 2016; Christine Porath and Christine Pearson, The Price of Incivility, Harvard Business Review, January-February 2013; Aloke Chakravarty, A Call For Ethics and Civility in Governance and Litigation: Changing Culture and Increasing Accountability, 4 Emory Corporate Governance and Accountability Review 37, 2017; Andray Domise, It’s too late for civility in American politics, MacLeans.ca, June 26, 2018; Philip Bump, The irony of Washington’s ‘civility’ debate: Trump already proved that incivility works, Washington Post, June 25, 2018.

[56] Jennifer Kavanagh and Michael Rich, Truth Decay: An Initial Exploration of the Diminishing Role of Facts and Analysis in American Public Life, Rand, 2018, page 207-208; Jennifer Kavanagh and Michael Rich, Truth Decay in public discourse and how to fight it, World Economic Forum, May 17, 2018 [note: article part of World Economic Forum’s Geostrategy platform].

[57] 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; Randolph Roth, How the erosion of trust leads to murders and mass shootings, Washington Post, October 6, 2017; Deepa Naraya, Raj Patel, Kai Schaffit, Anne Rademacher, and Sarah Koch-Schulte, Voices of the Poor: Can Anyone Hear Us?, Oxford University Press for the World Bank (World Bank eLibrary), 2000: see Chapter 6: Social Fragmentation; Lawrence Martin, Is the U.S. on the brink of civil unrest?, Globe and Mail, June 26, 2018.

[58] Thomas Plante, Ph.D, ABPP, Is Civility Dead in America? We seem to be living in a more and more uncivil society. We don’t have to, Psychology Today, July 11, 2016. Also see, Jonathan Knee, Fostering Civility in a Time of Disrespect, New York Times, December 23, 2016 (“Professor Porath makes a persuasive case that unchecked incivility, even by a relatively small number of individuals, acts “as an infectious pathogen”); Ashly Merryman, President Trump’s worst behaviours can infect us all just like the flu, according to science, Washington Post, March 29, 2018; Editor, Civility in America 2018: Amid Political Party Conflict, Individuals Agree: Erosion of Civility is Harming Our Democracy, WeberShandick.com, March 1, 2018 (77% ‘believe that incivility of politicians and other leaders encourages societal incivility”); Phoebe Griffith, Will Norman, Carmel O’Sullivan, and Rushanara Ali, Charm Offensive: Cultivating civility in 21^st Century Britain, Young Foundation.org, 2011 (“civility operates on a reciprocal basis and that it is ‘contagious’”); Thomas Plante, Ph.D, ABPP, Stand Up for Civility, Psychology Today, July 17, 2017 (“Social learning theory instructs us that people will model or emulate the behavior of others and especially behavior from models who are seen as high profile individuals”); Peter Baker and Katie Rogers, In Trump’s America, the Conversation Turns Ugly and Angry, Starting at the Top, New York Times, June 20, 2018:

“Unfortunately, we’ve seen a decline in civility and an uptick in incivility,” said Christine Porath, a Georgetown University professor and author of “Mastering Civility,” a book on behavior in the workplace. “It seems like people are not only reciprocating, but we tend to stoop lower rather than higher. It’s really putting us in an unfortunate place.”

Ms. Porath said the current harsh climate was affecting people beyond politics, injecting itself into everyday life at home and work. “We know that incivility is contagious,” she said. “It’s like a bug or virus. It’s not only when people experience incivility, it’s when they see or read about it.”

[59] Jayne R. Reardon, Civility as the Core of Professionalism, American Bar Association, 2014; Cheryl B. Preston & Hilary Lawrence, Incentivizing Lawyers to Play Nice: A National Survey of Civility Standards and Options for Enforcement, 48 U. Mich. Journal of Law Reform 701, 2015; Robert C. Josefsberg, The Topic is Civility: You Got a Problem with That?, Oregon State Bar Bulletin, January 1999 (Reprinted with permission: Fulfilling a Public Trust: The Professional Lawyer, Oregon State Bar CLE Seminars, March 17, 2017); Justice Philip McMurdo, Civility and Professional Courtesy, Queensland Law Society Symposium 2014, March 21, 2014; Lawyer bullies, incivility: On policing lawyer manners, American Bar Association, October 2015;  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; 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; David Grenardo, Enforcing Civility: Holding Attorneys to a Higher Standard of Conduct, 39^th Annual American Bar Association National Conference on Professional Responsibility, May 2013; Warren E. Burger, The Decline of Professionalism, 63 Fordham L. Rev. 949 (1995); Lonnie Johnson, Civil ≠ Zealous?, Clendening, Johnson & Bohrer (lawcjb.com), February 26, 2014; Michelle O’Neil, Is civility on the decline? (Part 1 of 4), Dallas Divorce Law Blog, April 16, 2018; Gregory Sidlofsky and David Wagner, How to deal with lawyers who are bullies, Wagner Sidlofsky.com, May 25, 2018; Anna Wong, Drawing the fine line between zealous advocacy and incivility, The Lawyer’s Daily, March 10, 2017; Gaye Lansdell, Reflections on ‘professionalism’ and legal practice – an outmoded ideology or an analytically useful category?, Legal Ethics, 19:2, 2016.

[60] Donald Winder and Jerald Hale, Enforcing Civility in an Uncivilized World, Civility Matters: ABOTA Foundation, American Board of Trial Advocates, 2015. Also see, Winston Churchill, The Second World War, Vol. III, Chapter 32, 1950.

[61] Suzanne Buchko, “Three Bank Tellers is Enough”: Personal Reminiscences of Legal Practice by Members of the Bench and Bar, 37 Indiana Law Review 699, 2004 (“[d]espite his unfailing courtesy, he did move cases. In fact, I used to describe him as having an iron hand in a velvet glove. Maybe even two velvet gloves for his courtesy.”); Mr. Harry B. Sands – A Tribute, hbslaw.com (“indelible leadership-style is described as akin to an iron hand in a velvet glove …. standard for professionalism and quality, excellence and civility, the core values …”); Spencer Ash, RBBA President’s Message: Zealous advocacy should not be blind advocacy, Daily Record, September 13, 2012 (“the strongest hand is the iron fist inside a velvet glove.”).

[62] Lonnie Johnson, Civil ≠ Zealous?, Clendening, Johnson & Bohrer (lawcjb.com), February 26, 2014.

[63] Groia v. Law Society of Upper Canada, 2018 SCC 27, para. 67, 229

[64] Groia v. Law Society of Upper Canada, 2018 SCC 27, para. 63 (referencing Morden A.C.J.O., Notes for Convocation Address, Law Society of Upper Canada, February 22, 2001, and Plea Negotiations: Achieving a “Win-Win” Result, Law Society of Upper Canada, 2003, at pp. 1-10 to 1-11. ).

[65] Groia v. Law Society of Upper Canada, 2018 SCC 27, para. 64, 63-68, 76, 229 (referencing K.A. Nagorney, A Noble Profession? A Discussion of Civility Among Lawyers, 12 Geo. J. Legal Ethics 815, at p. 817, 1999); R. v. Felderhoff, 68 O.R. (3d) 481, para. 85 (C.A.); Groia v. The Law Society of Upper Canada, 2016 ONCA 471, para. 114, 171 (Ont. C.A.).

[66] Groia v. Law Society of Upper Canada, 2018 SCC 27, para. 68, 104, 219, 228.

[67] Law Society of Upper Canada, Rules of Professional Conduct, Commentary [4.1] to R. 2.1-1 (Integrity).

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

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

[70] Jeffrey S. Leon and Kirsten A. Thoreson, Civility: An Important Tool of the Advocate’s Trialcraft, Presented at the Commercial Bar Association, North America Meeting, April 2015.

[71] 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, para. 1-2 (Ont. C.A.), supported on this ground, Groia v. Law Society of Upper Canada, 2018 SCC 27; 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.”

[72] Groia v. The Law Society of Upper Canada, 2016 ONCA 471, para. 1-2 (Ont. C.A.); Overturned on other grounds, Groia v. Law Society of Upper Canada, 2018 SCC 27.

[73] Groia v. The Law Society of Upper Canada, 2016 ONCA 471, para. 3 (Ont. C.A.); Overturned on other grounds, Groia v. Law Society of Upper Canada, 2018 SCC 27.

[74] Groia v. The Law Society of Upper Canada, 2016 ONCA 471, para. 9 (Ont. C.A.); Overturned on other grounds, Groia v. Law Society of Upper Canada, 2018 SCC 27.

[75] Law Society Act, R.S.O. 1990, c. L8 – does not define “professional misconduct”.

[76] Law Society of Upper Canada, Rules of Professional Conduct, r. 4.01(1) (2000).

[77] Law Society of Upper Canada, Rules of Professional Conduct, r. 4.01(6) (2000).

[78] Law Society of Upper Canada, Rules of Professional Conduct, r. 6.03(1) (2000).

[79] Groia v. The Law Society of Upper Canada, 2016 ONCA 471, para. 12-13 (Ont. C.A.).

[80] Brad Karp and Gary Wingens, The Law Did Not Create This Crisis, but Lawyers Will Help End It, New York Times, June 25, 2018 (“We speak for a group of lawyers who lead 34 major American law firms. … We are professionally obligated to safeguard the rule of law”).  Kenneth Grady, The Election, the Rule of Law, and the Role of Lawyers, Seytlines.com, November 17, 2016; Judge Sanji Monageng, Lawyers: Guardians of the Rule of Law, International Bar Association Criminal Court Programme, World Forum Conference Center, The Hague, Netherlands, November 20, 2012; Blake Morant, Lawyers as Conservators and Guardians: Justice, The Rule of Law, and the Relevance of Sir Thomas More, 2012 Mich. St. L. Rev. 647; Jayne R. Reardon, Civility as the Core of Professionalism, American Bar Association, 2014 (“As the guardians of the Rule of Law…”).

[81] 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]

[82] 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.

[83] Jason Fraley, Top 100 movie quotes of all time, wtop.com, April 19, 2013; Keertana Sastry, 15 Famous Movie Quotes Everyone Gets Wrong, Business Insider, August 10, 2012:

“And Justice For All” (1979)

Popular Quote: “I’m out of order? You’re out of order! This whole court is out of order!”

ACTUAL Quote: “You’re out of order! You’re out of order! The whole trial is out of order! They’re out of order!”

[84] See, Groia v. Law Society of Upper Canada, 2018 SCC 27. Also see, for example: Baksh v. Sun Media Toronto Corp (2003), 63 O.R. (3d) 51, (S.C.J.); Charlebois v. SSQ Life Insurance Co, 2015 CarswellOnt 20305 (S.C.J.); Close Up International Ltd v. 1444943 Ontario Ltd, 2006 CarswellOnt 6466 (SCJ), para. 11; Law Society of Upper Canada v. George Nelson Carter, 2005 CarswellOnt 10547.

[85] 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; David Grenardo, Enforcing Civility: Holding Attorneys to a Higher Standard of Conduct, 39^th Annual American Bar Association National Conference on Professional Responsibility, May 2013; Warren E. Burger, The Decline of Professionalism, 63 Fordham L. Rev. 949 (1995); Lonnie Johnson, Civil ≠ Zealous?, Clendening, Johnson & Bohrer (lawcjb.com), February 26, 2014; Michelle O’Neil, Is civility on the decline? (Part 1 of 4), Dallas Divorce Law Blog, April 16, 2018; Gregory Sidlofsky and David Wagner, How to deal with lawyers who are bullies, Wagner Sidlofsky.com, May 25, 2018; Anna Wong, Drawing the fine line between zealous advocacy and incivility, The Lawyer’s Daily, March 10, 2017; Gaye Lansdell, Reflections on ‘professionalism’ and legal practice – an outmoded ideology or an analytically useful category?, Legal Ethics, 19:2, 2016.

[86] Sharp Practice definition – (a) Black’s Law Dictionary (law dictionary.org): “behaviour that is barely less than fraud. It can be a cunningness, misrepresentation or a trick”; (b) Wex Legal Dictionary: “Questionable or unethical actions, especially by a lawyer. Sharp practice may include making misleading statements or threats, ignoring agreements, improperly using process, or employing other tricky and/or dishonorable means barely within the law. A consistent pattern of sharp practice may lead to discipline by a court or state bar association”; (c) Business Dictionary.com: “Cunningness, deceit, misrepresentation, trickery, and other unscrupulous behaviour just short of the legal definition of fraud”.

[87] 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); Ronald Hicks Jr., Litigation: 8 tips for dealing with a Rambo Lawyer – How to handle personal attacks or underhanded litigation tactics from opposing counsel, Inside Counsel, July 26, 2012.

[88] Wendy Matheson, Civility: Ten Litigators to watch out for, The Advocates Society Journal, Vol. 25, No. 1 (2005).

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

[90] 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.”

[91] 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”; Judge Paul L. Friedman, Fostering Civility, American Bar Association Section of Public Contract Law, March 13, 1998; 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; Judith Fischer, Incivility in Lawyers’ Writing: Judicial Handling of Rambo Run Amok, Research Gate.net, April 2011; Bronson Bills, To Be or Not to Be: Civility and the Young Lawyer, 5 Connecticut Public Interest Law Journal 31, 2005; James A. George, The “Rambo” Problem: Is Mandatory CLE the Way Back to Atticus?, 62 La. L. Rev. 467 (2002); Sofia Adrogue, “Rambo” Style Litigation in the Third Millennium – The End of an Era?, 37 Hous. Law 22, 2000; Thomas M. Reavley, Rambo Litigators: Pitting Aggressive Tactics Against Legal Ethics, 17 Pepp. L. Rev. 637, 1990; Ronald Hicks Jr., Litigation: 8 tips for dealing with a Rambo Lawyer – How to handle personal attacks or underhanded litigation tactics from opposing counsel, Inside Counsel, July 26, 2012; Wendy Matheson, Civility: Ten Litigators to watch out for, The Advocates Society Journal, Vol. 25, No. 1 (2005); Ronald Hicks Jr, Strategies and Tips for Dealing with Dirty Litigation Tactics by Opposing Counsel, Myer Unkovic & Scott, May 2013.

[92] 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.

[93] Groia v. Law Society of Upper Canada, 2018 SCC 27, para. 63-68, 219, 228, 229.

[94] Donald R. Lundberg, Zealotry v. Zeal: Thoughts about Lawyer Civility, 51 Res Gestae 32, December 2007. Also see,

[95] Mary Worthley Montague, Forbes Quotes – Thoughts on the Business of Life: “Civility costs nothing, and buys everything”. Also see, Linda Klein, One Word: Civility, ABA Journal, February 2017.

[96] 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]

[97] 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.

[98] 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]

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

[100] 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.

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

[102] David Grenardo, The High Costs of Incivility, American Bar Association, Before the Bar, April 1, 2015; Judith Fischer, Incivility in Lawyers’ Writing: Judicial Handling of Rambo Run Amok, Research Gate.net, April 2011 (Washburn Law Journal, Vol. 50, p. 369, 2011).

[103] Sandra Day O’Connor, Professionalism, 76 Wash. U. L.Q. 5, at 9 (1998).

[104] Roy Strom, ABA Report Promotes Changes to Treat Addiction, Depression, Law.com, August 14, 2017. Also see, Bree Buchanan and James Coyle (Task Force Chairs), National Task Force on Lawyer Well-Being: Creating a Movement to Improve Well-Being in the Legal Profession, American Bar Association, August 14, 2017; American Bar Association, The Path to Lawyer Well-Being: Practical Recommendations for Positive Change, The Report of the National Task Force on Lawyer Well-Being, August 2017.

[105] 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; Lindsay Scott, Dealing with incivility from senior counsel, Canadian Lawyer, November 19, 2012.

[106] Eric Sigurdson, The Legal Culture: Chronic Stress, Mental Illness and Addiction – Law Firms, Legal Departments, and Eight Organizational Strategies to reduce Burnout and promote Engagement, Sigurdson Post, November 19, 2017. Also see, Patrick Krill, Ryan Johnson, and Linda Albert, The Prevalence of Substance Use and Other Mental Health Concerns Among American Attorneys, 10 Journal of Addiction Medicine 46, February 2016; ABA, Hazelden Betty Ford Foundation release first National Study on Attorney Substance Use, Mental Health Concerns, Hazelden Betty Ford Foundation, February 3, 2016; Will McDowell (Chair), Mental Health Strategy Task Force: Final Report to Convocation, Law Society of Upper Canada, April 28, 2016; Bree Buchanan and James Coyle (Task Force Chairs), National Task Force on Lawyer Well-Being: Creating a Movement to Improve Well-Being in the Legal Profession, American Bar Association, August 14, 2017; American Bar Association, The Path to Lawyer Well-Being: Practical Recommendations for Positive Change, The Report of the National Task Force on Lawyer Well-Being, August 2017; Laura Helm, Mental Health and the Legal Profession: A Preventative Strategy – Final Report, Law Institute of Victoria (Australia), September 11, 2014; Michelle McQuigge, Lawyers more likely to experience mental health problems the more successful they are: study, Globe and Mail (The Canadian Press), October 22, 2017.

[107] Claire Bibby, Legal Leadership: the Good, the Bad, and the Ugly, Legal Business World, No. 5, 2018:

“Workplaces are stressful. There’s nothing terribly earth-shattering in that comment, I know. But throw into the mix a chisel of lawyers, working on highly pressurized, often decidedly complex issues, within an adversarial environment, regularly accompanied by tight deadlines, and there’s the potential for a problem. A big problem. Add to the mix in lawyers’ personalities, our propensity to be workaholics, the nature of the people that we work with, the status of our physical and emotional health, our personal relationships and the inevitability of major life changes happening at the drop of a hat. Then layer upon that our clients who rely on us to protect their legal position and carry the burden of their emotionally charged problems, while at the same time facilitating the resolutions they seek. Long hours are expected of us, and by some, are even seen as a mark of our success. Our spouses and families, grow to understand that we work in a tough environment and in many instances, they watch us as we make things even tougher for ourselves. In short, our time is focussed on solving other people’s problems, regrettably often at the expense of ourselves. But there’s only so far that you can stretch a rubber band, right?”

Also see, Calvin G.C. Pang, Eyeing the Circle: Finding a Place for Spirituality in a Law School Clinic, 35 Willamette L. Rev. 241, 274–75 (1999). Professor Pang notes some of the other numerous pressures lawyers face:

“Lawyers are faced daily with the most important problems in people’s lives: the weakness of a marriage, the potential loss of a child, the challenge of a serious accident, the threat of imprisonment or death, the vulnerability of a business, the loss of a job, the protection of a home, the provision for one’s future, the challenge to one’s rights. Furthermore, the expectations for lawyers are as overwhelming as these tasks are endless. When the situation seems hopeless, the lawyer must provide hope. When the world seems flawed, the lawyer must provide justice. When the work is complex, the lawyer must provide perfection. When the work is routine, the lawyer must make the client feel special. When the client is objectionable, the lawyer must make the client feel accepted. Our public demands integrity. Our colleagues are paid to combat us. As layer piles upon layer, any lawyer is going to want to scream, “Enough already!”

[108] See Thomas J. Vesper, Civility is Not a Sign of Weakness: Handling Conflict with Opposing Counsel, 1 Ann. 2001 ATLA–CLE 897 (2001); see also Barksdale, supra note 4, at 577; Rhesa Hawkins Barksdale, The Role of Civility in Appellate Advocacy, 50 S.C. L. Rev. 573 (1999).

[109] Rhesa Hawkins Barksdale, The Role of Civility in Appellate Advocacy, 50 S.C. L. Rev. 573 (1999).

[110] Naysayers, as popularly used in this context, refers to those who believe civility is unimportant. E.g., Marvin E. Aspen, A Response to the Civility Naysayers, 28 Stetson L. Rev. 253 (1998).

[111] Law Society responds to Supreme Court Decision regarding Joe Groia, Law Society of Ontario (lsuc.on.ca), June 1, 2018 (“The Supreme Court of Canada on June 1, 2018, reaffirmed the important role of the Law Society of Ontario in regulating in-court conduct and the importance of both civility and resolute advocacy”); Groia v. Law Society of Upper Canada, 2018 SCC 27, para. 76:

“[76] In saying this, I should not be taken as endorsing incivility in the name of resolute advocacy. In this regard, I agree with both Cronk J.A. and Rosenberg J.A. that civility and resolute advocacy are not incompatible: see Groia ONCA, at paras. 131-39; Felderhof ONCA, at paras. 83 and 94. To the contrary, civility is often the most effective form of advocacy. Nevertheless, when defining incivility and assessing whether a lawyer’s behaviour crosses the line, care must be taken to set a sufficiently high threshold that will not chill the kind of fearless advocacy that is at times necessary to advance a client’s cause. The Appeal Panel recognized the need to develop an approach that would avoid such a chilling effect.”

[112] Shawn Collins, Podium: Be Civil? I’m a Litigator!, Nat’l L.J. Sept. 20, 1999, at A21. Unfortunately, Mr. Collins fails to realize that you can be civil and zealously represent your client. Cf. Sandra Day O’Connor, Professionalism, 76 Wash. U. L.Q. 5, 9 (1998) (“It is not always the case that the least contentious lawyer loses. It is enough for the ideas and positions of the parties to clash; the lawyers don’t have to.”); Jeffrey S. Leon and Kirsten A. Thoreson, Civility: An Important Tool of the Advocate’s Trialcraft, Presented at the Commercial Bar Association, North America Meeting, April 2015. Alice Woolley (Assistant Professor, Faculty of Law, University of Calgary), ‘Does Civility Matter?’ (2008) 46 Osgoode Hall Law Journal 175:

“This commentary challenges the civility movement. It argues that to the extent that civility means the enforcement of good manners amongst lawyers, it is not a proper subject for professional regulation. To the extent that civility encompasses other ethical values-respect and loyalty to clients, respectfulness to the general public, and ensuring the proper functioning of the legal system the use of “civility” as an all-encompassing ethical value obscures the real ethical principles at play. Imposing a broadly defined obligation of “civility” does not meet the goal of principles of legal ethics and professional regulation: to guide counsel as to what is required of an ethical lawyer.”…

In addition, lawyers should not have to be civil where it undermines their ability to advocate for their client. Or, to put it differently, lawyers should not be disciplined for incivility where it occurs in the context of protecting a client’s legal interests.”

[113] Rhesa Hawkins Barksdale, The Role of Civility in Appellate Advocacy, 50 S.C. L. Rev. 573 (1999).

[114] 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; Katherine A. Staton, Professionalism and Civility in the Practice of Aviation Law—The VORS and GPSS Which Guide our Practice, 64 J. AIR L. & COM. 871, 882 (1999).

[115] See, e.g., Richard L. Abel, Why Does the ABA Promulgate Ethical Rules?, 59 Tex. L. Rev. 639, 653 (1981) (“All occupations in a capitalist system seek to control the markets in which they sell their labor.”); see generally Rob Atkinson, A Dissenter’s Commentary on the Professionalism Crusade, 74 Tex. L. Rev. 259 (1995); Amy R. Mashburn, Professionalism as Class Ideology: Civility Codes and Bar Hierarchy, 28 Val. U. L. Rev. 657 (1994); David J. Beck, Exploding Unprofessionalism: Fact or Fiction, 61 Tex. B.J. 534, 540–41 (1998) (arguing that the purported increase in uncivil behavior “may be nothing more than a complex change in societal values, rather than a decline in professionalism”); Bronson Bills, To Be or Not to Be: Civility and the Young Lawyer, 5 Connecticut Public Interest Law Journal 31, 2005; Alice Woolley (Assistant Professor, Faculty of Law, University of Calgary), ‘Does Civility Matter?’ (2008) 46 Osgoode Hall Law Journal 175:

“[A] lawyer who wishes to avoid discipline for incivility may self-censor in part because she does not know how her words will be perceived, and whether what she perceives as fair comment will be perceived by the law society as sanctionable misconduct. She may choose not to speak even though her comments would be important for calling another lawyer to account for improper behaviour, or in order to pursue the legal rights of her client. This tendency is particularly problematic given that the historic collegiality with which civility is often associated is also connected to discrimination and intolerance for diversity. A diverse bar in which lawyers may simply have different senses of what constitutes “polite” behaviour may require greater tolerance of forms of expression than are countenanced by the civility movement. Otherwise civility would become shorthand for elitism.”

[116] Austin Sarat, Enactments of Professionalism: A Study of Judges’ and Lawyers’ Accounts of Ethics and Civility in Litigation, 67 Fordham L. REV. 809, 809 (1999).

[117] Bronson Bills, To Be or Not to Be: Civility and the Young Lawyer, 5 Connecticut Public Interest Law Journal 31, 2005.

[118] Lonnie Johnson, Civil ≠ Zealous?, Clendening, Johnson & Bohrer (lawcjb.com), February 26, 2014.

[119] Lindsay Scott, Dealing with incivility from senior counsel, Canadian Lawyer, November 19, 2012.

[120] Paul L. Friedman, Civility, Judicial Independence and the Role of the Bar in Promoting Both, 2002 Fed. Cts. L. Rev. 4, (2002).

[121] Marvin E. Aspen, Overcoming Barriers to Civility in Litigation, 69 Miss. L.J. 1049 (2000); Bronson Bills, To Be or Not to Be: Civility and the Young Lawyer, 5 Connecticut Public Interest Law Journal 31, 2005.

[122] See William R. Trail & William D. Underwood, The Decline of Professional Legal Training and a Proposal for its Revitalization in Professional Law Schools, 48 Baylor L. Rev. 201, 222–23 (1996) (“Expressions of dissatisfaction among students have been mirrored by the bar, where concerns over legal education have increased in recent decades. Some of these concerns have focused on the increasing emphasis placed on purely theoretical scholarship: ‘[T]hree years of observing the intemperate clashes among professors adhering to conflicting schools of thought does little to advance a student’s understanding of ethical practice and the importance of dealing with adversaries candidly and courteously.’” (quoting Harry T. Edwards, The Growing Disjunction between Legal Education and the Legal Profession: A Postscript, 91 Mich. L. Rev. 2191, 2213 (1993)); David Grenardo, The High Costs of Incivility, American Bar Association, Before the Bar, April 1, 2015; Adam Dodek (associate law professor, Faculty of Law, University of Ottawa), Ethics in Practice – An Education and Apprenticeship in Civility: Correspondent’s Report from Canada, 14 Legal Ethics 239; Alice Woolley (Assistant Professor, Faculty of Law, University of Calgary), ‘Does Civility Matter?’ (2008) 46 Osgoode Hall Law Journal 175; Alice Woolley (Assistant Professor, Faculty of Law, University of Calgary), ‘Uncivil by too Much Civility’? Critiquing Five More Years of Civility Regulation in Canada, 36 Dalhousie L. J. 239, 2013.

[123] Edward Greenspan (Toronto criminal lawyer) and L David Roebuck (Toronto civil litigation lawyer), ‘The Horrible Crime of Incivility’, The Globe and Mail, 2 August 2011; Marvin E. Aspen, Overcoming Barriers to Civility in Litigation, 69 Miss. L.J. 1049, 1055 (2000).

[124] Marvin E. Aspen, Overcoming Barriers to Civility in Litigation, 69 Miss. L.J. 1049, 1055 (2000).

[125] Paul L. Friedman, Civility, Judicial Independence and the Role of the Bar in Promoting Both, 2002 Fed. Cts. L. Rev. 4 (2002).

[126] Marvin E. Aspen, Overcoming Barriers to Civility in Litigation, 69 Miss. L.J. 1049, 1055 (2000).

[127] Dane S. Ciolino, Redefining Professionalism as Seeking, 49 Loy. L. Rev. 229, 238 (2003); Elizabeth A. Alston, The Ten Commandments of Professionalism: A Misguided Effort, 13 Prof. Lawyer 24, 24 (2002) (“Clients don’t want us to be nice to each other. They want us to beat each other up.”); Bronson Bills, To Be or Not to Be: Civility and the Young Lawyer, 5 Connecticut Public Interest Law Journal 31, 2005.

[128] Bronson Bills, To Be or Not to Be: Civility and the Young Lawyer, 5 Connecticut Public Interest Law Journal 31, 2005; Calvin G.C. Pang, Eyeing the Circle: Finding a Place for Spirituality in a Law School Clinic, 35 Willamette L. Rev. 241, 274–75 (1999) (quoting Randy Lee, The Immutability of Faith and the Necessity of Action, 66 Fordham L. Rev. 1455, 1458–59 (1998)). Professor Pang notes some of the other numerous pressures lawyers face:

“Lawyers are faced daily with the most important problems in people’s lives: the weakness of a marriage, the potential loss of a child, the challenge of a serious accident, the threat of imprisonment or death, the vulnerability of a business, the loss of a job, the protection of a home, the provision for one’s future, the challenge to one’s rights. Furthermore, the expectations for lawyers are as overwhelming as these tasks are endless. When the situation seems hopeless, the lawyer must provide hope. When the world seems flawed, the lawyer must provide justice. When the work is complex, the lawyer must provide perfection. When the work is routine, the lawyer must make the client feel special. When the client is objectionable, the lawyer must make the client feel accepted. Our public demands integrity. Our colleagues are paid to combat us. As layer piles upon layer, any lawyer is going to want to scream, “Enough already!”

[129] Bronson Bills, To Be or Not to Be: Civility and the Young Lawyer, 5 Connecticut Public Interest Law Journal 31, 2005.

[130] 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.

[131] Groia v. The Law Society of Upper Canada, 2016 ONCA 471, para. 114 (Ont. C.A.); overturned on other grounds, Groia v. Law Society of Upper Canada, 2018 SCC 27.

[132] R. v. Felderhof (2003), 2003 CanLII 37346, para. 83, 68 O.R. (3d) 481, para 83, 94 (Ont. C.A.); Groia v. The Law Society of Upper Canada, 2016 ONCA 471, para. 114, 131-139 (Ont. C.A.); Groia v. Law Society of Upper Canada, 2018 SCC 27, para. 76; Lord Reid’s famous statement in Rondel v. Worsley, [1969] 1 A.C. 191, at pp. 227, captures the principle well:

“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…”

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

[134] Thomas Plante, Ph.D, ABPP, Is Civility Dead in America? We seem to be living in a more and more uncivil society. We don’t have to, Psychology Today, July 11, 2016 (“Research on the topic of incivility has found that … there is social contagion with incivility”); Jonathan Knee, Fostering Civility in a Time of Disrespect, New York Times, December 23, 2016 (“Professor Porath makes a persuasive case that unchecked incivility, even by a relatively small number of individuals, acts “as an infectious pathogen”); Ashly Merryman, President Trump’s worst behaviours can infect us all just like the flu, according to science, Washington Post, March 29, 2018; Editor, Civility in America 2018: Amid Political Party Conflict, Individuals Agree: Erosion of Civility is Harming Our Democracy, WeberShandick.com, March 1, 2018 (77% ‘believe that incivility of politicians and other leaders encourages societal incivility”); Phoebe Griffith, Will Norman, Carmel O’Sullivan, and Rushanara Ali, Charm Offensive: Cultivating civility in 21^st Century Britain, Young Foundation.org, 2011 (“civility operates on a reciprocal basis and that it is ‘contagious’”); Thomas Plante, Ph.D, ABPP, Stand Up for Civility, Psychology Today, July 17, 2017 (“Social learning theory instructs us that people will model or emulate the behavior of others and especially behavior from models who are seen as high profile individuals”).

[135] Linda Klein, One Word: Civility, ABA Journal, February 2017; Resolution No. 108, American Bar Association, Adopted by the House of Delegates (August 8-9, 2011).

[136] Jayne Reardon, Civility in America – It Matters, 2civility.org, November 6, 2017; S. Chris Edmonds, Four Steps Proven to Cultivate Workplace Civility, Forbes, April 14, 2017.

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

[138] Adam Dodek (associate law professor, Faculty of Law, University of Ottawa), Ethics in Practice – An Education and Apprenticeship in Civility: Correspondent’s Report from Canada, 14 Legal Ethics 239, 2011; Alice Woolley (Assistant Professor, Faculty of Law, University of Calgary), ‘Does Civility Matter?’ (2008) 46 Osgoode Hall Law Journal 175; Alice Woolley (Assistant Professor, Faculty of Law, University of Calgary), ‘Uncivil by too Much Civility’? Critiquing Five More Years of Civility Regulation in Canada, 36 Dalhousie L. J. 239, 2013; Philip Slayton, ‘There Can be Too Much Civility’ Canadian Lawyer, May 2010; Adam Dodek, Ending Bullying in the Legal Profession, Slaw.ca, April 6, 2016; Alice Woolley, ‘Does Civility Matter?’ (2008) 46 Osgoode Hall Law Journal 175; Terence Corcoran, Time to Free Joe Groia: The civility movement is an attempt to interfere with free speech in court, Financial Post, November 21, 2012; Joseph Groia, Nic Wall, and Elizabeth Carter, Shades of Mediocrity: The Perils of Civility, Canadian Bar Association Legal Conference (“Civility in the Legal Profession: Zealous Advocacy v. Professional Duty), August 17, 2014. Also see Austin Sarat, Enactments of Professionalism: A Study of Judges’ and Lawyers’ Accounts of Ethics and Civility in Litigation, 67 Fordham L. REV. 809, 809 (1999); Paul L. Friedman, Taking the High Road: Civility, Judicial Independence, and the Rule of Law, 58 N.Y.U. Ann. Surv. Am. L. 187, 187 (2001); Bryant Garth, From Civil Litigation to Private Justice: Legal Practice at War with the Profession and its Values, 59 Brook. L. Rev. 931, 940–42 (1994); Clarence Thomas, A Return to Civility, 33 Tulsa L.J. 7, 10 (1997), Sandra Day O’Connor, Professionalism, 76 Wash. U. L.Q. 5 (1998).

[139] See: Edward Greenspan (Toronto criminal lawyer) and L David Roebuck (Toronto civil litigation lawyer), ‘The Horrible Crime of Incivility’, The Globe and Mail, 2 August 2011 –

“Mr. Felderhof [client] hired Joseph Groia [lawyer]. Mr. Groia clearly recognized what losing the case meant to Mr. Felderhof and was vigorous in his defence. His attack on the OSC and its prosecution was not always moderate or respectful. He was, at times, caustic and sharp in his criticism of the prosecution. He may have used misplaced hyperbole, mockery and ridicule, the very things anyone in Canada can use when criticizing the prime minister, the cabinet or MPs on matters of national importance. It’s called free speech.” …

Before the Law Society intervened, the trial of Mr. Felderhof brought to mind an old “lawyer” story: “You are a cheat!” shouted the attorney to his opponent. “And you are a liar!” bellowed the other. The judge interjected: “Now that both lawyers have been identified for the record, let’s get on with the case.”

[140] Adam Dodek (associate law professor, Faculty of Law, University of Ottawa), Ethics in Practice – An Education and Apprenticeship in Civility: Correspondent’s Report from Canada, 14 Legal Ethics 239, 2011.

[141] Reference by a judge to an “altar of civility” is troubling. See Groia v. Law Society of Upper Canada, 2018 SCC 27, para 3. Also see, Civility, Ontario Ministry of the Attorney General (attorneygeneral.jus.gov.on.ca):

“Litigation in the adversary system too frequently gives rise to underlying partisan conduct by members of the bar. Too often, the “I’m the toughest gun in town” mentality is a part of some lawyers’ marketing of their services and conduct. The overworked maxim – “a lawsuit is not a tea party” – should not remotely be taken to justify uncivil or unethical behaviour.”

[142] Civility, Ontario Ministry of the Attorney General (attorneygeneral.jus.gov.on.ca).

[143] Groia v. The Law Society of Upper Canada, 2016 ONCA 471, para. 138 (Ont. C.A.); finding of lawyer professional misconduct overturned, Groia v. Law Society of Upper Canada, 2018 SCC 27, but see para. 76:

“[76] In saying this, I should not be taken as endorsing incivility in the name of resolute advocacy. In this regard, I agree with both Cronk J.A. and Rosenberg J.A. that civility and resolute advocacy are not incompatible: see Groia ONCA, at paras. 131-39; Felderhof ONCA, at paras. 83 and 94. To the contrary, civility is often the most effective form of advocacy. Nevertheless, when defining incivility and assessing whether a lawyer’s behaviour crosses the line, care must be taken to set a sufficiently high threshold that will not chill the kind of fearless advocacy that is at times necessary to advance a client’s cause. The Appeal Panel recognized the need to develop an approach that would avoid such a chilling effect.”

[144] Civility, Ontario Ministry of the Attorney General (attorneygeneral.jus.gov.on.ca).

[145] Omar Ha-Redeye, Joseph Groia’s Pyrrhic Victory, CanLII Connects, June 4, 2018.

[146] Groia v. Law Society of Upper Canada, 2018 SCC 27, see para. 10-26, 98.

[147] Note: Conduct included: ‘rude, improper or disruptive’ courtroom conduct; failure to act in a ‘fair, courteous, respectful, and civil manner”; ‘abusive’, ‘offensive’, and otherwise unprofessional communications with the prosecution; advancing ‘ill considered or uninformed criticism of the conduct of the prosecutors’, including ‘unrestrained invective’, ‘tone descend[ing] from legal argument to irony to sarcasm to petulant invective’, ‘unrestrained repetition of sarcastic attacks’. See, Law Society of Upper Canada v. Joseph Peter Paul Groia, 2013 ONLSAP 41 (Law Society Appeal Panel, November 28, 2013) – starting at para. 14, but see summary at para. 129 and 130.

[148] Groia v. Law Society of Upper Canada, 2018 SCC 27, para. 98-101.

[149] Groia v. Law Society of Upper Canada, 2018 SCC 27, para. 76.

[150] Aloke Chakravarty, A Call For Ethics and Civility in Governance and Litigation: Changing Culture and Increasing Accountability, 4 Emory Corporate Governance and Accountability Review 37, 2017.

[151] Warren E. Burger, The Decline of Professionalism, 63 Fordham L. Rev. 949 (1995).

[152] Cristin Schmitz, SCC rules Groia not guilty, sets standard for when lawyers’ incivility in court becomes professional misconduct, Lawyers Daily, June 1, 2018; Groia v. Law Society of Upper Canada, 2018 SCC 27, para. 78-80 (majority), 186-188 (minority).

[153] Groia v. Law Society of Upper Canada, 2018 SCC 27, para. 160:

“Looking at the circumstances of this case as a whole, the following becomes apparent. Mr. Groia’s mistaken allegations were made in good faith and were reasonably based. The manner in which he raised them was improper. However, the very nature of Mr. Groia’s allegations — deliberate prosecutorial misconduct depriving his client of a fair trial — led him to use strong language that may well have been inappropriate in other contexts. The frequency of his allegations was influenced by an underdeveloped abuse of process jurisprudence. The trial judge chose not to curb Mr. Groia’s allegations throughout the majority of Phase One. When the trial judge and reviewing courts did give instructions, Mr. Groia appropriately modified his behaviour. Taking these considerations into account, the only reasonable disposition is a finding that he did not engage in professional misconduct.”

[154] Groia v. The Law Society of Upper Canada, 2016 ONCA 471, para. 122-124, 125 (Ont. C.A.); and see Groia v. Law Society of Upper Canada, 2018 SCC 27, para. 76.

[155] Law Society responds to Supreme Court Decision regarding Joe Groia, Law Society of Ontario (lsuc.on.ca), June 1, 2018.

[156] Groia v. The Law Society of Upper Canada, 2016 ONCA 471, para. 249 (Ont. C.A).

[157] See, Groia v. Law Society of Upper Canada, 2018 SCC 27, para. 233.

[158] Shawn Collins, Podium: Be Civil? I’m a Litigator!, Nat’l L.J. Sept. 20, 1999, at A21. Unfortunately, Mr. Collins fails to realize that you can be civil and zealously represent your client. Cf. Sandra Day O’Connor, Professionalism, 76 Wash. U. L.Q. 5, 9 (1998) (“It is not always the case that the least contentious lawyer loses. It is enough for the ideas and positions of the parties to clash; the lawyers don’t have to.”); Jeffrey S. Leon and Kirsten A. Thoreson, Civility: An Important Tool of the Advocate’s Trialcraft, Presented at the Commercial Bar Association, North America Meeting, April 2015. Alice Woolley (Assistant Professor, Faculty of Law, University of Calgary), ‘Does Civility Matter?’ (2008) 46 Osgoode Hall Law Journal 175:

“This commentary challenges the civility movement. It argues that to the extent that civility means the enforcement of good manners amongst lawyers, it is not a proper subject for professional regulation. To the extent that civility encompasses other ethical values-respect and loyalty to clients, respectfulness to the general public, and ensuring the proper functioning of the legal system the use of “civility” as an all-encompassing ethical value obscures the real ethical principles at play. Imposing a broadly defined obligation of “civility” does not meet the goal of principles of legal ethics and professional regulation: to guide counsel as to what is required of an ethical lawyer.”…

In addition, lawyers should not have to be civil where it undermines their ability to advocate for their client. Or, to put it differently, lawyers should not be disciplined for incivility where it occurs in the context of protecting a client’s legal interests.”

[159] Law Society responds to Supreme Court Decision regarding Joe Groia, Law Society of Ontario (lsuc.on.ca), June 1, 2018; Groia v. Law Society of Upper Canada, 2018 SCC 27, para. 76:

“[76] In saying this, I should not be taken as endorsing incivility in the name of resolute advocacy. In this regard, I agree with both Cronk J.A. and Rosenberg J.A. that civility and resolute advocacy are not incompatible: see Groia ONCA, at paras. 131-39; Felderhof ONCA, at paras. 83 and 94. To the contrary, civility is often the most effective form of advocacy. Nevertheless, when defining incivility and assessing whether a lawyer’s behaviour crosses the line, care must be taken to set a sufficiently high threshold that will not chill the kind of fearless advocacy that is at times necessary to advance a client’s cause. The Appeal Panel recognized the need to develop an approach that would avoid such a chilling effect.”

[160] Jeffrey S. Leon and Kirsten A. Thoreson, Civility: An Important Tool of the Advocate’s Trialcraft, Presented at the Commercial Bar Association, North America Meeting, April 2015.

[161] Groia v. The Law Society of Upper Canada, 2016 ONCA 471, para. 346-347 (Ont. C.A.), dissent on other grounds; and see: Groia v. Law Society of Upper Canada, 2018 SCC 27, para. 76, 98-101.

[163] Groia v. The Law Society of Upper Canada, 2016 ONCA 471, para. 132-133 (Ont. C.A.); and see Groia v. Law Society of Upper Canada, 2018 SCC 27, para. 76.

[164] Garielle Giroday, SCC sides with Joseph Groia after legal battle over civility: top court says law society erred in finding professional misconduct, Canadian Lawyer, June 1, 2018.

[165] David Grenardo, The High Costs of Incivility, American Bar Association, Before the Bar, April 1, 2015; Bedoya v. Aventura Limousine & Transp. Serv., Inc., (861 F. Supp. 2d 1346 (S.D. Fla. 2012)).

[166] David Grenardo, The High Costs of Incivility, American Bar Association, Before the Bar, April 1, 2015.

[167] David Grenardo, The High Costs of Incivility, American Bar Association, Before the Bar, April 1, 2015.

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

[169] Groia v. The Law Society of Upper Canada, 2016 ONCA 471, para. 134-135 (Ont. C.A.); and see Groia v. Law Society of Upper Canada, 2018 SCC 27, para. 76.

[170] Groia v. The Law Society of Upper Canada, 2016 ONCA 471, para. 136 and 139 (Ont. C.A.); and see Groia v. Law Society of Upper Canada, 2018 SCC 27, para. 76.

[171] Groia v. The Law Society of Upper Canada, 2016 ONCA 471, para. 150-151 (Ont. C.A.); and see Groia v. Law Society of Upper Canada, 2018 SCC 27, para. 76.

[172] Law Society responds to Supreme Court Decision regarding Joe Groia, Law Society of Ontario (lsuc.on.ca), June 1, 2018. Also see, Groia v. Law Society of Upper Canada, 2018 SCC 27, para. 76:

“[76] In saying this, I should not be taken as endorsing incivility in the name of resolute advocacy. In this regard, I agree with both Cronk J.A. and Rosenberg J.A. that civility and resolute advocacy are not incompatible: see Groia ONCA, at paras. 131-39; Felderhof ONCA, at paras. 83 and 94. To the contrary, civility is often the most effective form of advocacy. Nevertheless, when defining incivility and assessing whether a lawyer’s behaviour crosses the line, care must be taken to set a sufficiently high threshold that will not chill the kind of fearless advocacy that is at times necessary to advance a client’s cause. The Appeal Panel recognized the need to develop an approach that would avoid such a chilling effect.”

[173] Alex Dimitrief, I asked these graduates to find reasons to come together to solve our world’s biggest challenges: What’s your advice?, LinkedIn, June 21, 2018.

[174] Warren E. Burger, The Decline of Professionalism, 63 Fordham L. Rev. 949 (1995).

[175] Mary Worthley Montague, Forbes Quotes – Thoughts on the Business of Life (18^th century poet): “Civility costs nothing, and buys everything”.

[176] Linda Klein, One Word: Civility, ABA Journal, February 2017.

[177] Law Society of British Columbia v. Greene, [2003] LSBC 30, at 34.

[178] Bree Buchanan and James Coyle (Task Force Chairs), National Task Force on Lawyer Well-Being: Creating a Movement to Improve Well-Being in the Legal Profession, American Bar Association, August 14, 2017; American Bar Association, The Path to Lawyer Well-Being: Practical Recommendations for Positive Change, The Report of the National Task Force on Lawyer Well-Being, August 2017. Also see, Nicole Ireland, ‘The impact on society is enormous’: In legal profession, depression, addiction hurt clients, too, CBC, November 26, 2016.

[179] Will McDowell (Chair), Mental Health Strategy Task Force: Final Report to Convocation, Law Society of Upper Canada, April 28, 2016.

[180] Laura Helm, Mental Health and the Legal Profession: A Preventative Strategy – Final Report, Law Institute of Victoria (Australia), September 11, 2014; Will McDowell (Chair), Mental Health Strategy Task Force: Final Report to Convocation, Law Society of Upper Canada, April 28, 2016; Bree Buchanan and James Coyle (Task Force Chairs), National Task Force on Lawyer Well-Being: Creating a Movement to Improve Well-Being in the Legal Profession, American Bar Association, August 14, 2017; American Bar Association, The Path to Lawyer Well-Being: Practical Recommendations for Positive Change, The Report of the National Task Force on Lawyer Well-Being, August 2017.

[181] Laura Helm, Mental Health and the Legal Profession: A Preventative Strategy – Final Report, Law Institute of Victoria (Australia), September 11, 2014; Will McDowell (Chair), Mental Health Strategy Task Force: Final Report to Convocation, Law Society of Upper Canada, April 28, 2016; Bree Buchanan and James Coyle (Task Force Chairs), National Task Force on Lawyer Well-Being: Creating a Movement to Improve Well-Being in the Legal Profession, American Bar Association, August 14, 2017; American Bar Association, The Path to Lawyer Well-Being: Practical Recommendations for Positive Change, The Report of the National Task Force on Lawyer Well-Being, August 2017.

[182] See generally Raymond M. Ripple, Learning Outside the Fire: The Need for Civility Instruction in Law School, 15 Notre Dame J.L. Ethics & Pub. Pol’y 359 (2001). Contra, Adam Dodek (associate law professor, Faculty of Law, University of Ottawa), Ethics in Practice – An Education and Apprenticeship in Civility: Correspondent’s Report from Canada, 14 Legal Ethics 239; Alice Woolley (Assistant Professor, Faculty of Law, University of Calgary), ‘Does Civility Matter?’ (2008) 46 Osgoode Hall Law Journal 175; Alice Woolley (Assistant Professor, Faculty of Law, University of Calgary), ‘Uncivil by too Much Civility’? Critiquing Five More Years of Civility Regulation in Canada, 36 Dalhousie L. J. 239, 2013;  See e.g. Edward Greenspan and L David Roebuck, ‘The Horrible Crime of Incivility’, The Globe and Mail, 2 August 2011; Philip Slayton, ‘There Can be Too Much Civility’ Canadian Lawyer, May 2010.

[183] Dore v. Barreau du Quebec, 2012 SCC 12, [2012] 1 S.C.R. 395 (“it is precisely when a lawyer’s equilibrium is unduly tested that he or she is particularly called upon to behave with transcendent civility”); Groia v. The Law Society of Upper Canada, 2016 ONCA 471 (Ont. C.A.); Excerpts from the Chief Justice’s Speech on the Need for Civility, New York Times, May 19, 1971. [Former Chief Justice Warren E. Burger, United States Supreme Court, addressing the American Law Institute in May, 1971]; Chief Justice Robert Benham of the Supreme Court of Georgia in Butts v State, 546 S.E.2d 472 (Ga.2001) (“civility … is an essential ingredient in an effective adversarial legal system”); Clyne v New South Wales Bar Association (1960) 104 CLR 186 (“duty of counsel … to denounce some person or the conduct of some person … from the point of view of the common law, it is right that the person attacked should have no remedy in the Courts. But from a point of view of a profession, which seeks to maintain standards of decency and fairness, it is essential that the privilege and power of doing harm, which it confers, should not be abused. Otherwise grave and irreparable damage might be occasioned”); Rondel v. Worsley, [1969] 1 A.C. 191, at pp. 227:[183]

“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…”

[184] See Thomas E. Humphrey, ‘Civil’ Practice in Maine, 20 Me. B.J. 6 (2005); Bronson Bills, To Be or Not to Be: Civility and the Young Lawyer, 5 Connecticut Public Interest Law Journal 31, 2005.

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

[186] In particular, Jayne R. Reardon. Jayne R. Reardon is the executive director of the Illinois Supreme Court Commission on Professionalism and a member of the ABA Standing Committee on Professionalism. Ms. Reardon has written many articles on professionalism topics, including the blog, 2CIVILITY (see http://www.2civility.org/category/blog/).

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

[188] Elizabeth Raymer, New SCC chief justice speaks at Advocate’s’ End of Term Dinner, Canadian Lawyer, June 8, 2018. Also see, Tonda MacCharles, Canada’s top judge says Supreme Court should provide leadership at a time when fundamental values are being undermined in the world, Toronto Star, June 22, 2018.

[189] See, for example, Groia v. Law Society of Upper Canada, 2018 SCC 27, para. 228, 231 (minority reasons).

[190] Warren E. Burger, The Decline of Professionalism, 63 Fordham L. Rev. 949 (1995).

[191] Eduardo Mendieta, Civility at the core of American democracy, whatever politicians say, The Conversation, November 7, 2016. Also see, for example: Tonda MacCharles, Canada’s top judge says Supreme Court should provide leadership at a time when fundamental values are being undermined in the world, Toronto Star, June 22, 2018.

[192] Robyn Williams, The importance of civility: what we can learn from Japan, ABC.net.au, May 11, 2015.