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Posted May 2012Incivility is one of the greatest threats to our justice system. Whether rudeness or outright personal attacks, unprofessional behavior (once the exception) has become more frequent. Certainly at times the tension and stress of the adversary system can take its toll on our better judgment. As Luther Munford's article on the consequences of "legal warfare" notes: "Much unprofessional conduct occurs when attorneys substitute feeling for thinking. Fear and frustrated expectations stir up emotions block good judgment, and lead to uncontrolled haranguing of judges, colleagues, and witnesses."1 That accurately assesses a majority of the problem; but other unprofessional conduct is not so understandably explained. Instead it has become a tactic—part of an intentional, Machiavellian win "at all costs" strategy that, sadly, is rewarded with success and often is tolerated as part of the "adversary system."
"…Incivility diminishes the practice of law and its reputation and, not surprisingly, erodes the public trust and respect for the justice system."
Whether a lapse in judgment or intentional, incivility diminishes the practice of law and its reputation and, not surprisingly, erodes the public trust and respect for the justice system. And it is not always an ethics issue, either. While some of these practices may violate the Mississippi Rules of Professional Conduct and/or Rule 11, many do not. Simply expecting lawyers to accept these practices as appropriate for the "changing times" is not a solution. Nor would additional rules2 solve the problem because, as Winston Churchill once observed, "[with] 10,000 regulations, you destroy all respect for the law."
The issue belongs to lawyers—each of us. Beyond formal regulations, the law is one of the few remaining self-governing professions—a fact that places both the blame and the solution for the current situation primarily in our hands. And self-governance is not limited to following or enforcing the written rules. In fact, the preamble to our Rules of Professional Conduct acknowledges that in addition to the rules, "a lawyer is also guided by personal conscience and the approbation of professional peers."3 Our collective conscience hasn't changed that dramatically; but it may be asleep.
In the Foreword to his ethics treatise, Professor Jeffrey Jackson hints at a potential source of the problem: The Rules of Professional Conduct "mandate honesty, loyalty, competence, diligence, discretion, fairness and respect for clients, adversaries, third parties, and for the courts. Good lawyers understood this even before the MRPC made that plain."4
What is "good lawyer?" Good lawyers don't always win—just read To Kill a Mockingbird. Financial success can't be the sole measure of a good lawyer either. It means something more; something like "honorable" — a word that, outside the military and formal titles, has been left the shelf collecting dust. But words like "honorable" and "integrity" have meaning and best reflect the authentic character of a true professional — a good lawyer.
True professionalism is not a shallow, public display for important people (judges, bosses, and clients); nor can it be reduced to (the appearance of) congeniality among adversaries. As Supreme Court Justice Anthony Kennedy observed "civility is not some bumper sticker slogan, 'have you hugged your adversary today?' Civility is the mark of an accomplished and superb professional, but it is even more than this. It is an end in itself." Civility, integrity, professionalism are not theoretical aspirations either. They must be foundational to our profession not merely because they make our jobs more pleasant (which they do), but because they are essential to a functioning and respected justice system that the public entrusted to us.
If, as Justice Kennedy observed, civility should be an end in itself: "what should it look like in practice? And what practical steps can we take we ensure that it remains a lasting legacy of our profession?" Those were far easier questions a generation ago. But today we have principled standards that capture the essence of professionalism and civility and tell us what it should look like in practice. Two excellent examples are The Mississippi Bar's A Lawyer's Creed 5 and the American Board of Trial Advocates' (ABOTA) Principles Of Civility, Integrity, And Professionalism.6 Mississippi Bar's Lawyers' Creed provides straightforward guidance.
To my clients, I offer faithfulness, competence, diligence, and good judgment. I will strive to represent you as I would want to be represented and to be worthy of your trust.
To the opposing parties and their counsel, I offer fairness, integrity, and civility. I will seek to fairly resolve differences and, if we fail to reconcile disagreements, I will strive to make our dispute a dignified one.
To the courts, and other tribunals, and to those who assist them, I offer respect, candor, and courtesy. I will strive to do honor to the search for justice.
To my colleagues in the practice of law, I offer concern for your reputation and well-being. I will extend to you the same courtesy, respect, candor and dignity that I expect to be extended to me. I will strive to make our association a professional friendship.
To the profession, I will strive to keep our business a profession and our profession a calling in the spirit of public service.
To the public and our systems of justice, I offer service. I will strive to improve the law and our legal system, to make the law and our legal system available to all, and to seek the common good through effective and ethical representation of my clients.
The Creed answers our first question (what it should look like in practice) by requiring honor, dignity and integrity; and it gives meaningful guidance by describing a lawyer's duty to his clients and colleagues in the practice of law applying the timeless principle of the golden rule. As with the Biblical injunction "so whatever you wish that others would do to you, do also to them…" 7 our duty is not passive restraint. It requires action. To ensure these standards endure within the practice of law requires that we: (1) control our own behavior and (2) positively influence those around us.
As a self-regulating profession, we own this issue both individually and corporately. Reform won't happen on its own. It starts with each of us. Our second question is more personal: How can we ensure that these qualities endure? In the Foreword to his ethics treatise Professor Jackson begins "In law practice, I had a mentor…" Mentoring is vital to both personal character and professional development — and each is essential to producing the next generation of good lawyers. Mentoring is teaching through both words and actions; consistently following professional standards of our practice (honesty, integrity, civility, and courtesy); encouraging respect for the law; and reflecting a commitment to the practice as a learned profession.
Whether formal 8 or informal, mentoring is not optional. Professor Jackson's mentor taught him that good lawyers conformed to norms of professional behavior even without rules and importantly "even when not being observed by others." Mentoring (or at least influence) happens whether we know it or not because rarely is no one watching. Perhaps, more than any well-meaning instruction, what is done under adversity and against hostility — especially when the correct thing is also the unpopular thing — is probably the most instructive and remembered teachers of these values.
These suggestions are certainly not all-inclusive. But hopefully they offer some practical guidance. The Mississippi Bar Lawyers Creed calls us to "strive to keep our business a profession and our profession a calling in the spirit of public service." Ultimately, to keep true professionalism engrained in the practice of law, let's all be vigilant examples and defenders of these principles.
