As early as 1971, Chief Justice Warren E. Burger of the United States Supreme Court called for increased civility in the practice of law. In a presentation before the American Law Institute, Chief Justice Burger said “With passing time I am developing a deep conviction as to the necessity for civility if we are to keep the jungle from closing in on us and taking over the hand and brain Man has created in thousands of years, by way of rational discourse and in the deliberative processes, including the trial of cases in the courts…. Without civility no private discussion, no public debate, no legislative process, no political campaign, no trial of any case, can serve its purpose or achieve its objective. When men shout and shriek or call names, we witness the end of rational thought process if not the beginning of blows and combat.”
More than two decades later, the issue of civility had not resolved itself to Chief Justice Burger’s satisfaction. Speaking to the Fordham Law School in 1995, Burger lamented the loss of civility in the practice of law. He complained about lawyers “whose idea of counsel’s function may have been influenced by the clownish performances seen on television programs.” He also called out judges who tolerate this conduct, noting, “When even a few judges tolerate … misconduct, the administration of justice suffers, and it leads to repetition of that conduct by other lawyers.” To Chief Justice Burger, civility is critically important.
In his aptly titled book, Civility, Yale law professor Stephen L. Carter, anecdotally recounted the way Supreme Court Justice Lewis Powell would ask questions of litigants before the Supreme Court. Justice Powell would say, “Counsel, would you mind if I asked you a question?” Obviously, Justice Powell was not asking for permission to ask a question, nor would anyone think he needs permission. Further, no one would think counsel before the Supreme Court would dare say they did mind answering questions. Professor Carter’s point was although Justice Powell did not need to ask for permission, he presented his questions in the way he did out of respect for the attorneys who appeared at the bench. To Professor Carter, this is the type of civility demanded of all of us.
Nonetheless, the lack of civility is rampant. About a year ago, we represented a client tangentially involved in someone else’s litigation. During that minimal involvement, we received emails from a lawyer in the case. One of the emails is set forth below in the form and font as received, together with the spelling errors:
“please notify your partners you will be sued
I confirmed 15 minutes ago you are a nasty incompetent…
WHO DO YOU THINK YOU ARE?
i WILL ALSO REPORT YOU TO THE dISCIPLINARY bOARD.”
The good news is we were not sued and we were not reported to the disciplinary board. Reflecting on that correspondence, and others received over the years, the question is how do we mitigate this behavior to ensure the courts work as intended? Law school teaches the practice of law is meant to be a noble profession. We know reasonable people can and will disagree. As lawyers, don’t we know we should behave more professionally?
In truth, attorneys are not the only ones capable of incivility. In 2015, a dissenting Supreme Court Justice said the majority opinion was, “…couched in a style that is as pretentious as its content is egotistic.” The Justice went on to say, “But what really astounds is the hubris reflected in today’s judicial Putsch.” In other words, the majority was accused of excessive pride in a decision amounting to the violent overthrow of a government.
There is hope for a continued commitment to civility. In 2000, the Pennsylvania Supreme Court promulgated the Code of Civility in this Commonwealth. Importantly, the Code of Civility contains two articles. The first article is entitled, “A Judge’s Duties to Lawyers and Other Judges.” The second title is equally simple, “The Lawyer’s Duties to the Court and to Other Lawyers.” The clear intent is that civility is demanded from both sides of the bench. The Preamble to the Code sums up what is expected:
The hallmark of an enlightened and effective system of justice is the adherence to standards of professional responsibility and civility. Judges and lawyers must always be mindful of the appearance of justice as well as its dispensation. The following principles are designed to assist judges and lawyers in how to conduct themselves in a manner that preserves the dignity and honor of the judiciary and the legal profession. The principles are intended to encourage lawyers, judges and court personnel to practice civility and decorum and to confirm the legal profession’s status as an honorable and respected profession where courtesy and civility are observed as a matter of course.
The conduct of lawyers and judges should be characterized at all times by professional integrity and personal courtesy in the fullest sense of those terms. Integrity and courtesy are indispensable to the practice of law and the orderly administration of justice in our courts. Uncivil or obstructive conduct impedes the fundamental goal of resolving disputes in a rational, peaceful and efficient manner.
Although all of a judge’s duties of civility need not be repeated here, some of those listed in the Code of Civility are the following:
• A judge must maintain control of the proceedings and has an obligation to ensure that proceedings are conducted in a civil manner.
• A judge should show respect, courtesy and patience to the lawyers, parties and all participants in the legal process by treating all with civility.
• A judge should not employ hostile or demeaning words in opinions or in written or oral communications with lawyers, parties or witnesses.
• A judge should be punctual in convening trials, hearings, meetings and conferences.
Similarly, while all of a lawyer’s duties of civility need not be listed here, the Code of Civility includes the following:
• A lawyer should act in a manner consistent with the fair, efficient and humane system of justice and treat all participants in the legal process in a civil, professional and courteous manner at all times.
• A lawyer should speak and write in a civil and respectful manner in all communications with the court and court personnel.
• A lawyer should abstain from making disparaging personal remarks or engaging in acrimonious speech or conduct toward opposing counsel or any participants in the legal process and shall treat everyone involved with fair consideration.
• A lawyer should not bring the profession into disrepute by making unfounded accusations of impropriety or personal attacks upon counsel and, absent good cause, should not attribute improper motive or conduct to other counsel.
• A lawyer should be punctual and prepared for all court appearances.
• A lawyer should be considerate of the time constraints and pressures on the court in the court’s effort to administer justice and make every effort to comply with schedules set by the court.
• A lawyer should understand that court personnel are an integral part of the justice system and should treat them with courtesy and respect at all times.
• A lawyer should strive to protect the dignity and independence of the judiciary, particularly from unjust criticism and attack.
In addition, some courts have frankly and honestly demanded civility. In a dissenting opinion written in 2017, Ninth Circuit Judge Jay Scott Bybee felt compelled to comment on public attacks on the judiciary. Judge Bybee said, “Even as I dissent…, I have the greatest respect for my colleagues. The personal attacks on the distinguished district judge and our colleagues were out of all bounds of civic and persuasive discourse – particularly when they came from the parties. It does no credit to the arguments of the parties to impugn the motives or the competence of the members of this court; ad hominem attacks are not a substitute for effective advocacy. Such personal attacks treat the court as though it were merely a political forum in which bargaining, compromise and even intimidation are acceptable principles. The courts of law must be more than that, or we are not governed by law at all.”
The Iowa Supreme Court has said, “Standards of civility exist in practice, not as a matter of convenience to the profession, but as a matter of fairness and simple justice. These standards
condemn unfair tactics….Departure from the standards of civility are obvious examples of ineffective and counterproductive advocacy.”
In an effort to return the profession to what it should be, the Pennsylvania Bar Association recently established the Committee on Civility in the Profession. Its mission statement is, “… to instill, promote and enhance professionalism and civility within the legal profession by encouraging discussion about the importance of professionalism and civility among the members of the bar, the judiciary and the public.”
Returning to Stephen L. Carter’s Civility, he describes civility as a series of rules constituting the etiquette of democracy. He argues, civility is not dependent on whether we like each other. Civility assumes we will disagree, but requires us to attempt to resolve our differences respectfully. Civility requires us to listen to others with knowledge of the possibility that they are right and we are wrong. Civility requires us to express ourselves in ways that demonstrate our respect for others. Civility allows criticism of others, and sometimes even requires it, but the criticism should always be presented with respect and courtesy. Civility values diversity, disagreement, and the possibility of polite and firm resistance.
George Orwell discussed thoughts on freedom of speech offered a way to think about civility. In 1945, addressing the subject of freedom of speech, Orwell said, “If large numbers of people are interested in freedom of speech, there will be freedom of speech…; if public opinion [on freedom of speech] is sluggish, inconvenient minorities will be persecuted, even if laws exist to protect them.” Similarly, if a large number of attorneys and judges are committed to civility, there will be civility. On the other hand, if we are sluggish and fail to demand and insist upon civility from all people in the legal system, including litigants, attorneys, and judges, those who are committed to civility will suffer at the hands of those who are not.
It is a sad commentary on the current state of our legal system that a Chief Justice of the United States Supreme Court felt compelled to repeatedly speak about civility and a law professor wrote a book on the subject. It is regrettable that a Code of Civility has even needed to be promulgated and the Pennsylvania Bar Association felt the need to establish a committee on civility. The American legal system is, and must be, more than the words written in books of statutes and rules. There must be an honest and open commitment to doing what is right, moral, and just. And civil.
- James E. Gavin, Esquire
Paid for by the Committee to Elect James Gavin
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