Fostering Civility in Public Discourse

Vol. 18 No. 2

By

(Speech Delivered at the Opening Assembly of the Annual Meeting of the American Bar Association, August 6, 2011)

Before the opening assembly of the ’s annual meeting, I announced that the and the Canadian Bar Association had executed a Memorandum of Understanding that memorializes the long and warm relationship between our professions and our countries.

We have always shared the same values and concerns and we look forward to continuing to work together on programs that advance human rights and the rule of law. One important aspect of this is civility.

Civility is more important today than ever before for our profession to show the way to our nation and how we can lead a return to civility.

Our visit to Canada provided an opportunity to learn from our Canadian friends. It’s interesting to note, for instance, that the lawyer’s oath in Ontario includes a word that is sometimes missing in U.S. oaths. That word is civility.

The oath reads, in part: “In all things I shall conduct myself honestly and with integrity and civility.”

It’s an issue that has been discussed for generations, if not centuries. More than 400 years ago, Shakespeare said in “The Taming of the Shrew,” “Do as adversaries do in law – strive mightily, but eat and drink as friends.”

How many of us growing up were taught the statement, “I don’t agree with what you say but I will defend to the death your right to say it.”  Today, we hear, “I don’t agree with what you say, you shouldn’t say it and, if you do say it, you are a bad person and I will raise my voice to try to keep you from being heard.” Where did we lose our way?   

Efforts to foster civility in public discourse have been in the forefront of American society for as long as many of us can remember. During his inaugural address over 50 years ago, President Kennedy issued a message that resonates today for lawyers and for all men and women who believe in the rule of law, and public life, for that matter. He said, “Civility is not a sign of weakness.”

In 1971, Chief Justice Warren Burger addressed civility within the legal profession during remarks before the American Law Institute. Chief Justice Burger said, “Civility is really the very glue that keeps organized society from flying into pieces” – the pieces we are witnessing today all around us.

Given the state of our national discourse lately, those remarks are more important today than ever. In an age where someone shouts down the President on the floor of Congress, where talking heads scream over each other on what passes for truth on cable TV, where gossip magazines and blogs make up stories out of whole cloth, and where talk radio listeners only want to hear one side of a dispute – their side - we have a serious uphill battle that we must wage. 

Why do we, as citizens and lawyers, care about civility?  Because we care about truth, learning, real facts, fairness, honest debate that enlightens, adherence to rules, and respect.  And incivility degrades all those things.

We understand that the role of the lawyer as advocate is fundamental to our profession. We are trained to be zealous advocates for our clients’ interests. And that is precisely why we must take advantage of the unique opportunity our profession gives us, so that our children will live in a society that honors civility. 

Since we do much of our work in public, where civility can be demonstrated, and because we are often in opposition to each other, we can show how one disagrees without being disagreeable.

The great Justice Learned Hand said that in a democracy we must believe in the possibility we may be wrong.  Incivility destroys that possibility and the very fabric of our nation.

Good lawyers know that driving home an argument doesn’t require sharp words and nasty accusations.  This was clearly proven by the recipients of our ABA Medal in 2011, Ted Olson and David Boies, and how they behaved in the Bush vs. Gore case.

My son and niece are young lawyers, and I would be very proud if my grandchildren followed in this great profession.  But whatever they choose to do, I want them to live and work in a nation that values civility.

This continuing slide into the gutter of incivility degrades us all. It destroys the values of respect and diversity that we all treasure, and that leads us to bad societal decisions, to demeaning arguments, and intolerance and repression – symptoms we see all around us.

This lack of civil discourse must stop here and now.  Because of our role and our visibility as lawyers and counselors, we can and must here and now begin to change the tone, volume and honesty of our public discourse.

Efforts to promote civility go back many years – even within the American Bar Association and the Florida Bar.  In October of 1989, as President of the Florida Bar, I wrote an article entitled, “On Being an Advocate or a ‘JERC’ (Jurisprudence Exercised Rudely and Callously).” The role of lawyers as an advocate is fundamental to our profession.  But a lawyer has no right to use the guise of advocacy to justify being a JERC.

We must not let this public perception of the JERC be the image of a profession whose role models have been Thomas Jefferson and Abraham Lincoln, and today Sandra Day O’Connor and Steve Breyer.

Twenty-five years ago, the ABA Commission on Professionalism issued a blueprint for the rekindling of lawyer professionalism and civility. Among other recommendations, it urged that law schools promote specific tools for “learning and practicing civility with students’ first exposure to the profession” and urged bar associations “to instill civility into new associates.”

A few years later, at a meeting such as this, Justice O’Connor noted that “the justice system cannot function effectively when the professionals charged with administering it cannot even be polite to one another.”

Sixteen years ago, the House of Delegates passed Resolution 113 encouraging civility in recognition that a “lawyer owes the profession adherence to a higher level of conduct than mere observance of the rules of professional conduct.” 

We have had our warnings. We must now have our call to action. Report 108 to the ABA House of Delegates reaffirms the principle of civility as a foundation for democracy and the rule of law. It is our responsibility to demonstrate to society, our legislatures, school boards, TV and radio shows, magazines and blogs, that true civility comes from the appreciation of our higher calling and dedication to public service, which must unite as a profession.

Let us rededicate ourselves to the proposition that words matter, how we treat others matters, and how others see us matters - not just for ourselves, but for generations to come. 

Stephen N. Zack is Immediate-Past President of the American Bar Association and was the first Hispanic American to assume the ABA Presidency. He was also the first Hispanic American and youngest President of the Florida Bar.  Mr. Zack specializes in civil trial law, as well as eminent domain, corporate and international law, and served as General Counsel to 's former Governor and U.S. Senator Bob Graham. He can be reached at szack@bssfllap.com.

 

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