How much of that bad reputation is the result of incivility in the legal profession, and what can lawyers do to tackle this issue?
The program “Ethical Tools to Diffuse Incivility,” sponsored by the American Bar Association Center for Professional Development, addressed the ways in which lawyers can deal with unprofessionalism in the field.
“We’re trying to address the incivility as a means of having people have a better career, better outcomes, better satisfaction, better client outcomes and to address the issue of representation of the bar,” Alder said.
According to a 2007 survey of Illinois lawyers conducted on behalf of the Illinois Supreme Court Commission on Professionalism, 95 percent said they had experienced or witnessed unprofessional behavior by a fellow lawyer.
“One of the realizations I came to in doing this work is the concept of civility is actually much broader than having good manners or being nice,” said Jayne Reardon, program moderator and executive director of the commission.
Many lawyers reported experiencing strategic incivility, or the deliberate abuse of the system through tactics such as misrepresenting the facts, playing hardball and using inflammatory writing or inappropriate language in official communications.
Reardon said that while acting in an uncivil manner is sometimes an innate reaction, “we also may choose it because we think it gets results.”
“In fact, incivility often has the opposite effect,” she said. “It doesn’t make the process quicker or more efficient. It leads to a resentment, anger and bitterness in the relationship.”
Alder said that if lawyers don’t self-regulate such problems, the whole profession suffers. He stressed that lawyers are obligated to help their peers who display incivility to move away from those behaviors.
“You need to be very firm and very direct when you see incivility and unprofessionalism,” he said. Make a record of incidents and direct the information to the appropriate authorities.
If an attorney displays incivility within the courtroom, Associate Judge Toni E. Clarke of Prince George’s County Circuit Court said lawyers could to talk to the judge about the problem.
“I don’t hesitate to say something when I see that kind of conduct,” she said. “Unfortunately, not all judges are taking those positions and doing more about it.”
Reardon said not taking any action in response to incivility could embolden the person and escalate the bad behavior.
“You don’t have to be extremely harsh or aggressive in your response to ask the judge to take action,” she added.
The panel posed several hypothetical scenarios to participants and then discussed which course of action was the most professional and ethical. The experts mentioned that many states have codes that address professionalism and that several rules in the ABA Model Rules of Professional Conduct are applicable to civility.
For example, Comment 1 on Rule 1.3 says that “the lawyer’s duty to act with reasonable diligence does not require the use of offensive tactics or preclude the treating of all persons involved in the legal process with courtesy and respect.”
Rule 3.4 deals with the concept of strategic incivility, stating that lawyers should not unlawfully obstruct access to evidence, falsify evidence, make a frivolous discovery request or fail to make reasonable efforts to comply with a discovery request, among other things.
“Civility is as important today as it ever was,” Reardon said. “And I think it’s more complex. And our reputations are so easily tarnished with technology now whereas we could operate in relative obscurity even 10 years ago.”
She said the Center for Professional Responsibility is putting out a book in July called Essential Qualities of the Professional Lawyer and recommended it to those interested in topics such as professionalism and civility.
“It certainly is an important concept, an important practice, not only in your everyday life but in the courtroom,” Clarke said. “A civil code of respect is a hallmark in any civilized community.”
This event was part of the Premier Speaker Series, a monthly program that allows ABA members to earn free continuing legal education credits. The next Premier Speaker event, “Hot Topics: Disability Issues in Employment Law,” takes places July 15.