For the Record: Civility

On civility, for the record — August 8, 2011

Most of Ontario’s approximately 43,000 lawyers and 3,500 paralegals are very civil. Occasionally, some are not. With civility and incivility receiving considerable media coverage recently, we felt it was important to share some valuable perspectives on the issue.

“Litigation in the adversary system too frequently gives rise to underlying partisan conduct by members of the bar. Too often, the “I’m the toughest gun in town” mentality is a part of some lawyers’ marketing of their services and conduct. The overworked maxim – “a lawsuit is not a tea party” – should not remotely be taken to justify uncivil or unethical behaviour.

“Judges have every right to demand that counsel act in a civil manner in court in dealing with both the court and opposing counsel. Unacceptable in-court conduct should give rise to sanctions, which include contempt citations and cost orders. Having been there, it continues to amaze me how some lawyers (a very distinct minority) seem to think that conduct that will reasonably be seen by others, including the trial judge and jury, as unduly aggressive actually benefits their clients.

“Out-of-the-courtroom incivility is more difficult to control. The Law Society of Upper Canada as the regulator of the profession obviously has a role in dealing with complaints about lawyers’ conduct. Its Rules of Professional Conduct prohibit uncivil behaviour and sharp practice. The need is enforcement, not more rules.”

— The Honourable Coulter A. Osborne, Q.C
Civil Justice Reform Project: Summary of Findings & Recommendations

“Civility amongst those entrusted with the administration of justice is central to its effectiveness and to the public’s confidence in that system. Civility ensures matters before the Court are resolved in an orderly way and helps preserve the role of Counsel in the justice system as an honourable one. 

“Litigation, however, whether before a Court or tribunal is not a “tea party”. Counsel are bound to vigorously advance their client’s case, fairly and honourably. Accordingly, Counsel’s role is openly and necessarily partisan and nothing which follows is intended to undermine those principles. But Counsel can disagree, even vigorously, without being disagreeable. Whether among Counsel or before the Courts, antagonistic or acrimonious behaviour is not conducive to effective advocacy. Rather, civility is the hallmark of our best Counsel.”

— from The Canadian Bar Association’s Code of Professional Conduct

“It is essential for the administration of justice and the public’s respect for our system of justice that lawyers and paralegals act with civility and professionalism in their dealing with the clients, other lawyers and paralegals and the courts. As part of the Law Society’s mandate to govern lawyers and paralegals in the public interest it must ensure that they act in a civil and professional manner in carrying out their duties and responsibilities.”

— W. A. Derry Millar, former Treasurer of the Law Society of Upper Canada
Report to Convocation: Treasurer’s Report on the Civility Forum

“There is a general concern that standards of civility in the profession are declining. Civility is not just a nice, desirable adornment, to accompany the lawyers conduct themselves, but, is a duty which is integral to the way lawyers are to do their work. In the field of litigation, civility is the glue that holds the adversary system together, that keeps it from imploding.”

— The Honourable J. W. Morden, “Call to the Bar Address”, February 2001
in Michael Code,
Counsel’s Duty of Civility:
an Essential Component of Fair Trials and an Effective Justice System

“As professionals, lawyers are expected to act in a courteous, dignified and civil manner toward the public they serve, other members of the profession, and members of the judiciary. Civility is the natural result of collegiality among members of the profession, and that attitude should be nurtured and encouraged by every lawyer. Collegiality undergirds the supervision of the profession through self-regulation, where rules and standards are developed and applied collectively by members of the profession itself, rather than by external bodies.

“Civility is not differentiated among barristers or solicitors, and spans the range of activities lawyers perform in practice or employment. The broad responsibility is to the administration of justice, and as officers of the court, lawyers have a duty to the justice system to act with integrity, an overarching responsibility that requires civil conduct. London lawyer Michael Eizenga, in commenting on civility, said: 

‘...thoughtful, open-minded and mutually respectful interactions between legal professionals represent quintessentially civil conduct, and result in an amelioration of the fragmenting forces within our community. In this way, civility must be recognized as an instrumental value informing the conduct of citizenship in the legal profession.’

“[from “Citizenship in the Legal Profession: Civility as an Instrumental Value in Self-Governance” by Michael Eizenga of Siskind, Cromary, Ivey and Dowler LLP, London,October 2000]”

— The Honourable Roy McMurtry
Chief Justice of Ontario Advisory Committee on Professionalism:
Working Group on the Definition of Professionalism — “Defining Professionalism”

“We recommend that trial judges use these powers [referring to contempt and cost orders] with restraint for a number of reasons. First, there is an alternative remedy available, when faced with counsel who persistently engages in unprofessional conduct in the court room, namely, referral to the Law Society. Second, contempt and personal costs orders should be remedies of last resort because they are overtly punitive and they require a very high level of misconduct. Finally, counsel is generally entitled to notice and a hearing before these sanctions are imposed and this will inevitably disrupt the trial and may prejudice the client...

 “The Ontario Court of Appeal has recently held that referral to the Law Society is an appropriate response to court room misconduct. We believe that there are many advantages to this approach."

— The Honourable Patrick J. Lesage, C.M., Q.C. and Professor Michael Code
Report of the Review of Large and Complex Criminal Case Procedures

In response to civility concerns raised by senior members of the justice system, the Law Society consulted widely with members of the legal profession in 2009 and 2010. Over 900 lawyers, paralegals, students and members of the judiciary attended the Civility Forum, a series of 11 meetings across the province hosted by former Treasurer Derry Millar. From these discussions, the former Treasurer, in collaboration with key players in the justice system, proposed a number of initiatives to explore.

For more information on these and other efforts we suggest the following resources:

Civility Complaints Protocols
Civility: A Cornerstone of Professionalism
Chief Justice of Ontario’s Advisory Committee on Professionalism