March 3, 2022
Civility and Lawyers: Requisite for the Functioning of Diversity
BY: Alexander Hewes, Esq.
Dr. Joshua Lederberg, an American molecular biologist, and Nobel Prize winner, known for his work in microbial genetics, artificial intelligence, and the United States space program, put it succinctly when he said:
“All of civility depends on being able to contain the rage of individuals.”
At a time when certain diversity issues, such as critical race theory teaching, as well as transgender and voting law reforms are being debated in the news, with political divisions fueled too often by heated rhetoric, it is useful to be reminded that civility has played an important historical role in guiding our cultural development going back as far as the ancient Greeks, 2500 years ago. It has served, repeatedly over time, as a successful bulwark against barbarism, totalitarianism, and anarchy in all forms. Today, lawyers have an important role to play in promoting civil dialogue in any functioning diversity model. While civility can serve to nourish the development of cultural diversity, it will fall short as long as lawyers see themselves as Grand Inquisitors who prefer to engage in name-calling and hate mongering.
Beginning with the Romans and the root word civitas, meaning the rights and duties of citizenship, civility was presented in classical literature as necessary for the development of democracy in the context of community and assembly. In its earliest use, civility referred to the display of good behavior for the greater common good. The early Greeks thought that civility was both a private virtue and a public necessity, which functioned to hold the state together.1 Aristotle even viewed civility as a form of friendship, which he understood to be a mutual feeling of good will based on the capability of humans to promote the interests of others above their own.
In the Middle Ages, civility referred to a proper course of conduct which later became a courtly term. It flourished during the three hundred years of the Renaissance with its collective social celebration of human achievement and expanded dramatically during the human-centered culture of the early modern age. Civility came to represent the character of the courtier and gentleman.
George Washington wrote out a copy of the 110 Rules of Civility in his schoolbook whenhe was about 14-years old. They were based on maxims that originated in the late sixteenth century in France and were widely circulated during Washington’s time.
Viewed thus, civility is a behavioral code of decency or respect that is the hallmark of living as responsible citizens in the larger community.Without exaggeration, civility has proven over time to be the essential glue holding societies together, as it embraces the concepts of altruism, responsibility, dignity, and justice. Historically, the legal profession has been at the forefront of conflict resolutions of all kinds while functioning on principles of civility and professional conduct.
An Evolving Landscape.
Any historical comparison of civility during various times makes it clear that lawlessness and standards of decorum tend to fluctuate in complex and interdependent ways. Colonial America, for example, was viewed later as a coarse age by the more proper nineteenth-century Americans yet these same nineteenth-century Americans displayed a great deal of tolerance for selective lawlessness, especially mob violence that sometimes included lynching.
Because of the Bolshevik Revolution and the rise of Nazi Germany in 1938, Walter Lippman was deeply worried “that the nations of the Atlantic community would not prove equal to the challenge, and that if they failed, we should lose our great traditions of civilities, the liberties Western man had won for himself after centuries of struggle and which were now threatened by the rising tide of barbarity.”2
Challenges to the Legal Profession.
In 1971, and with specific respect to the legal profession, Chief Justice Warren Burger wrote:
“[a.]11 too often, overzealous advocates seem to think the zeal and effectiveness of a lawyer depends on how thoroughly he can disrupt the proceedings or how loud he can shout or how close he can come to insulting all those he encounters . . . .”3
Though each State is different as to degree and severity, there is substantial evidence pointing to an overall rise in incivilitywithin the American bar. It is extremely difficult to pin down the number of incidents of incivility and unprofessional conduct because incivility, without some associated violation of the ethical rules, historically has not been prosecuted by State regulatory authorities. The result has been a lack of good systemic data on incivility’s prevalence.
Nonetheless, the scattered data that is available tends to confirm that uncivil lawyer conduct is pervasive. A 2007 survey done by the Illinois Supreme Court Commission on Professionalism, for example, examined specific behaviors of attorneys across the State and reported that, over the prior year, 71 percent had experienced rudeness which was described as sarcasm, condescending comments, swearing, or inappropriate interruptions. An even higher percentage of respondents reported being victimized by a combination of more specific behaviors loosely described as “strategic incivility.” This involved opposing counsel strategically employing uncivil behaviors to gain the upper hand, typically in litigation, and included, for example, indiscriminate or frivolous filing of pleadings, the use of inflammatory writing in briefs or motions, not agreeing to reasonable requests for accommodation, or deliberately misrepresenting the facts.
An updated Survey on Professionalism in 2021, by the same Illinois Commission, contained good news and bad news.
“The percentage of lawyers who said they’ve experienced incivility from another attorney in the past 6 months dropped more than 30% compared to the Commission’s 2014 Survey on Professionalism. However, issues of incivility tied to race, age, and sex are on the rise and impacting diversity in the profession.
Attorneys in civil rights law, family law, criminal law, and personal injury law all reported experiencing incivility significantly more than in other practice settings.”4
Virginia and the other States may have varying experiences of incivility by categories. Nonetheless, the Illinois experience is a disturbing reminder that the already underserved clients of diversity and poverty can be the biggest losers in an escalating environment of hate mongering and incivility.
With technology and the explosion of social media use, every communication is amplified and distributed to an exponentially wider net of viewers. A “perfect wave” for rising incivility is achieved by the proliferating platforms for digital expression when combined with the enhanced speed of dissemination, dutifully counted with “likes.” Both traditional media and social media carry countless accounts of screaming lawyers, sometimes using expletives, and acting uncivil.
There have been countless writings about the widespread and growing dissatisfaction among judges and established lawyers who have bemoaned what they have seen as the gradual degradation of the practice of law. Once a vocation graced by congenial professional relationships, it has too often become stigmatized by abrasive dog-eat-dog confrontations.
Opportunities for Change.
There have been programmatic efforts, led by judges, to address and curb spreading incivility in the legal profession. In 1996, the Conference of Chief Justices adopted a resolution calling for the courts of the highest authority in each state to take a leadership role in evaluating the contemporary needs of the legal community with respect to lawyer professionalism. In response, the supreme courts of fourteen states have established commissions on professionalism, including Virginia, to promote principles of professionalism and civility throughout their states.
Many more states have, either through their supreme courts or bar associations, formed committees that have studied professionalism issues and formulated principles articulating the aspirational or ideal behavior the lawyers should strive to exhibit. Strategies include developing updated standards of professional conduct, increased CLE training and the establishment of mentoring programs.
The Virginia Bar Emphasis on Professionalism and Civility.
A requirement of civility is woven into the fabric of the American legal profession, beginning with Bar admission. Applicants must demonstrate a capacity to act in a manner that engenders respect for the law and the profession – in other words, civility.
In early 2007, the Virginia Bar Association established a Commission on Professionalism. The Commission, made up of members from the Virginia judiciary, statewide bar organizations, educational institutions and distinguished Virginia lawyers, was tasked with developing and implementing a set of inspirational principles of professionalism for endorsement by the Supreme Court of Virginia. It was intended as a public expression of the importance that Virginia lawyers place on professionalism, integrity, and civility.
The Preface to the Bar’s Principles of Professionalism, updated June 9, 2020, authored by Chief Justice Leroy Rountree Hassell, Sr., Virginia Supreme Court, reads in part:
“The Supreme Court of Virginia endorses the attached Principles of Professionalism for Virginia Lawyers prepared by the Virginia Bar Association Commission on Professionalism. Having been unanimously endorsed by Virginia’s statewide bar organizations, the Principles articulate standards of civility to which all Virginia lawyers should aspire.”
Leading by Example.
There is one solution that cannot be emphasized enough. Every member of the Bar needs to lead by example. If faced with uncivil conduct, it should not be matched in kind and more senior lawyers in any size law firm can use it as a mentoring tool for younger lawyers even without establishing a formal mentoring program. Civilized behavior is more than a matter of having good intentions. It must be learned and learning to be civilized requires conscientious effort and practiced judgment with the guidance of more experienced lawyers. Individuals cannot be expected to learn how to be civilized on their own. Civil conduct is learned through examples and by direct participation in the life of a civilized community.
Young lawyers need to learn, and the research has established that (1) lawyers acting civil are more effective and achieve better outcomes; (2) those lawyers build better reputations; (3) civility breeds job satisfaction; (4) incivility adds to the cost of dispute resolution and (5) incivility may result in attorney discipline.
Lessons can be learned about leading by example in studying the role of two Virginia lawyers in particular who engaged in the struggle for civil rights with grace, perseverance, and civility. One need look no further than Oliver Hill and Spottswood Robinson, who along with a team of Virginia lawyers have epitomized our profession’s highest ideals.
In her book, We Face the Dawn, Margaret Edds wrote:
The civil rights movement did not begin in the 1960’s. It did not emerge only from marches on Washington or the case files of Thurgood Marshall and the New York offices of the NAACP and its Legal Defense Fund. Important parts of its foundation were laid in Virginia in the 1940’s and 1950s by Oliver Hill and Spottswood Robinson. Their little-known story forms a missing link in the long and still-unfinished chain leading from American slavery to racial equality. In bridging the perilous spaces between grassroots activists, top movement commanders and the white jurists and legislators who often governed their fate, the Virginia duo stand without peer.6
Through their actions and professionalism, they garnered the respect of jurists and legislators alike, as well as the public and no one could seriously argue that their civility and faith in the law was compromised by their conduct.
The liner on Oliver Hill’s casket bore a simple inscription consistent with his philosophy: “Let the Work I’ve Done Speak for Me.”
Indeed, it does, and it should continue to guide future generations of lawyers as a model of effective advocacy that embraces the principles of civility and professionalism. The loudest and most effective argument can be made with a whisper and the power of understatement can make the case far better than shrill rhetoric intended to denigrate the character of those with whom we disagree.
A Time to Recommit to Civility.
At the 1976 Democratic National Convention—the year of America’s Bicentennial—Rep. Barbara Jordan, the first Southern Black woman ever elected to the U.S. House of Representatives, told the delegates in her keynote address at Madison Square Garden:
“A nation is formed by the willingness of each of us to share in the responsibility for upholding the common good.”
Not only does our profession require us to be civil, and it is simply the right thing to do, but professionalism among lawyers is required by the larger American society to preserve a great profession and survive as a civil society bound to the Rule of Law. It is time to renew our commitment to civility. In the words of Dr. Lederberg, individual lawyers must do more “…. to contain the rage of individuals.” Both the need and the opportunity are before us.
- Jane R. Reardon, Civility as the Core of Professionalism, ABA Journal, September 18, 2014.
- Walter Lippmann, The Public Philosophy : On the Decline and Revival of Western Society, 1955.
- Chief Justice Burger, The Necessity for Civility, 52 F.R.D. 211, 213 (May 18, 1971) (remarks made to the Opening Session of the American Law Institute).
- Illinois Supreme Court Commission on Professionalism, Survey on Professionalism in 2021.
- Margaret Edds, We Face the Dawn, Introduction, p. 8.