The Lawyers Weekly - July 8, 2011

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Incivility
Continued From Page 24

that may involve an imbalance of power.
In an even greater extreme, it may be
harassment, as defined on the Law Soci-
ety of Upper Canada’s (LSUC) website:
“Harassment is a form of discrimination.
It includes unwelcome comments or
behaviours when such conduct might be
reasonably expected to cause insecurity,
discomfort, offence or humiliation to
another person.”
There are many reasons for incivility in
the law—work pressures, the need to
“win,” inflated or low self-worth, general
stress professionally and personally, over-
identification with the client’s case, anger,
fear, addictions issues and even mental
wellness challenges.

It is a serious problem in the legal pro-
fession just by the numbers themselves.
The LSUC reports that civility complaints
rose from 11 per cent of all complaints in
2004 to 33 per cent in 2010. This is
alarming. In the insurance industry, this
trend would be looked at as a crisis of
monumental proportions. For lawyers, it
is that and more, because it goes beyond
money to the confidence of the public in
our profession.

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One of the problems with the concept
of civility and your relationship with
other lawyers comes from trying to decide
how to handle the competing interests in
the Rules of Professional Conduct in each
province that talk about the lawyer as an
advocate. Rule 4.01 of the Rules of Pro-
fessional Conduct of the LSUC includes
in its Commentary: “The lawyer has a
duty to raise fearlessly every issue,
advance every argument, ask every ques-
tion, however distasteful, which the law-
yer thinks will help the client’s case and to
endeavour to obtain for the client the
benefit of every remedy and defence
authorized by law.”
remarks or acrimony toward other coun-
sel, parties or witnesses,” from The New
York State—Standards of Civility for the
Legal Profession

In Ontario, The Advocates’ Society is promoting an attitude of respect for other lawyers through its Institute for Civility and Professionalism with an award honouring the late Justice Marvin Catzman, QC. The award represents his civility and his dedication to the highest ideals of the legal profession (http:// www.advocates.ca/).

Leaving it there might open the door
to abuse but the authors of the Com-
mentary went on to temper the
unleashed ardour of runaway advocacy:
Here are a few of my personal tips for
civility in the legal profession from the

New York Standards of Civility: n;Lawyers should act in a civil manner regardless of the ill feelings that their clients may have towards others. Lawyers should represent their clients in an objective manner so as not to personally identify with the client’s issues as their own. n;A lawyer should respect the schedule and commitments of opposing counsel, consistent with protection of the client’s interests. n;A lawyer should promptly return telephone calls and answer correspondence reasonably requiring a response. n;Papers should not be served in a manner designed to take advantage of an opponent’s absence from the office.

n A lawyer should not use an aspect of the litigation process, including discovery and motion practice, as a means of harassment or for the purpose of unnecessarily prolonging litigation or increasing litigation expenses. nLawyers should not engage in any conduct that would not be appropriate in the presence of a judge.

“The lawyer has a duty to raise fearlessly every issue, advance every argument, ask every question, however distasteful...

Rather than inad-
equately précis the
excellent work of
others with recom-
mendations for bring-
ing civility to the legal
profession, I would recommend the fol-
lowing sources on this subject:
Finally, I would like to
go back to Bremer and

1) The Advocates’ Society Principles of Civility for Advocates — http://www. advocates.ca/civility/principles.html

2) The CBA Code of Professional Con-
duct with the Appendix of the Principles of
Civility for Advocates—http://www.cba.
org/CBA/activities/pdf/codeofconduct.pdf
her Inns of Court model. She proposes a
simple solution that used to be part of
the legal fabric in small towns to large
cities and in the Inns of Court in Eng-
land—breaking bread and eating
together. “Communal dining, or a pot-
luck, among lawyers not only contrib-
utes to collegiality, mentoring and edu-
cation, but it promotes civility by
reducing stress and building a sense of
community. And, to quote Martha Stew-
art, ‘that’s a good thing.’ ”

4)From my favourite legal
writer—Ron Profit of Charlottetown,
P.E.I. who wrote “Civility in Legal Prac-
tice — Practical Tips” — http://www.cba.
org/cba/practicelink/wwp/civilityinthe-
legalpractice.aspx
So, I suggest that you try this when
you have a particularly difficult lawyer
on the other side. Take him or her to
lunch. You may actually find things in
common personally, learn to like each
other, work collaboratively to solve the
legal issue you are working on and foster
a good future relationship. What have
you got to lose? n

5) Choosing Civility — The Twenty-Five Rules of Considerate Conduct — P. M. Forni, Cofounder of the Johns Hopkins Civility Project, St. Martin’s Griffin, New York, 2002

I like this statement: “Lawyers can disagree without being disagreeable. Effective representation does not require antagonistic or acrimonious behaviour. Whether orally or in writing, lawyers should avoid vulgar language, disparaging personal

John Starzynski is the volunteer director, peer support and liaison at the Ontario Lawyers’ Assistance Program and a director of the Legal Profession Assistance Conference, the umbrella organization for all lawyers’ assistance programs across Canada.