Dean's Address

CIVILITY

Robert C. Josefsberg

My topic is Civility ‑ you got a problem with that Buddy? Unfortunately, the lack of civility in our society and in our profession is not a laughing matter.

"We are suffused with embarrassment in this country about the decline of morality and look for reasons in our government, our churches, our economists, our media. But among the most potent reasons must be the failure of many leaders of the legal profession to accept their role as law enforcers ‑ to act as the keepers of their clients' conscience." 1/

In a system fixated on winning, civility has become a meaningless issue, discarded, not even debated, by whoever is left standing. I am not going to discuss ethics today, nor will I discuss professionalism. Ethical decisions are often made alone ‑made between you and your conscience. No one ever knows about them. Civility is different ‑ it's how you treat others. A civil and courteous lawyer may, unbeknownst to you, be unethical. And the converse is also true; an ethical lawyer may be very rude, contentious and lacking in civility.

Professionalism is a larger category. It includes civility, ethics, being well prepared, and doing pro bono work.

Why do we confuse professionalism, ethics and civility? First, because they often overlap. Second, because even though these three qualities are distinct, there is a tendency for the lawyer to rate similarly in all categories. There is a tendency for linking. I will get back to the issue of linking of traits later. Suffice it to say that most of the time ethical lawyers are civil and professional. Unfortunately, some lawyers are not ethical, not civil, nor professional. Ethics and professionalism are very important, but in this short time that I have to speak, I'm not going to attempt to cover ethics or professionalism.

What is civility? Or, rather what was civility? As Trial Magazine in 1991 stated, "Whatever happened to civility? If you're under 50 you're probably running for the dictionary." 2/

Civility is courtesy, dignity, decency and kindness. It has been defined in the Virginia Bar Association's Creed as follows:

"Courtesy is neither a relic of the past nor a sign of less than fully committed advocacy. Courtesy is simply the mechanism by which lawyers can deal with daily conflict without damaging their relationships with their fellow lawyers and there own well being". 3/

Civility is not inconsistent with zealous advocacy. You can be civil while you're aggressive, upset, angry and intimidating; you're just not allowed to be rude. Unfortunately, some lawyers and the public don't understand the differences.

A Colorado lawyer recently explained why he stopped practicing law:

"I was tired of the deceit. I was tired of the chicanery. But most of all, I was tired of the misery my job caused other people. Many attorneys believe that 'zealously representing their clients' means pushing all rules of ethics and decency to the limit". 4/

The civility problem is not new. It has a long history:

"An attorney was disbarred in 1883 for conduct unbecoming an attorney when he joined a mob to remove a prisoner from jail and hang him from an oak tree in front of the courthouse. In 1884, a lawyer was held in contempt of court for threatening the examiner during a deposition with an open knife and using insulting and indecent language. A year later ‑ 1885 – a federal court remarked that lawyers entering the "temple of justice" armed with pistols should be found guilty of contempt of court and disbarred More recent examples of lawyers and incivility include threatening or using physical violence on opposing counsel, personal attacks on opposing counsel instead of legal arguments disparaging jurors, exchanging invectives and displaying "contentious, abusive, obstructive scurrilous, and insulting conduct."5/

I'm sure you have all heard and read a great deal about civility. But we always assume it's "the other lawyers" who are causing the problem and therefore it's the other lawyers, not us, who have the ability to solve the problem. The sad truth is that we, or at least some of us, just might be part of the problem.

"Interestingly, the anguish about the current state of affairs is not over the behavior of a few disreputable lawyers who abuse litigation practices in ways that respectable lawyers from white‑shoe firms would not. Rather, the concern is that, like Pogo, big – city commercial litigators have met the enemy in themselves ‑ litigators from the great national law firms are now perceived as very much a part of the problem. 6/

Secondly, even if its not our fault, or your individual fault, it will become our fault if we sit idly by and let this travesty occur. I heard the introduction of our new members this morning and it was obvious that they are achievers, or perhaps over‑achievers. They are movers and shakers; they are the people who can move mountains in the court systems and in society. With all of this talent, with all of this power, if we fail to act, we will be responsible. We will be responsible for the destruction of our noble profession.

Continue to Page 2