No more meetings, no more discussions, no more Sollozzo tricks. You give 'em one message: I want Sollozzo. If not, it's all-out war: we go to the mattresses.
- The Godfather
Daily, lawyers of all practice areas advocate resolutely for clients. We place ourselves between parties to help them manage or resolve high-stakes situations. Increasingly, lawyers approach their role with undue aggression, “going to the mattresses” against the other lawyer, the opposing client, and even the court.
What is civility?
Civility is a concrete tenet of practice. In R v Felderhof, the Ontario Court of Appeal notes that civility is not merely an adornment. It holds the legal profession together and contributes to a just society. Uncivil conduct, that is abrasive, hostile or obstructive impedes the court’s ability to resolve conflict in a fair, efficient and effective manner.
The adversarial system requires resolute advocacy, but resolute advocacy should also be civil. As the court notes in Felderhof, “Professionalism is not inconsistent with vigorous and forceful advocacy on behalf of a client.” But forceful advocacy does not include personal or unreasonable attacks against the opposing lawyer, their client, or the court. Intimidation or bullying is uncivil and may be sanctioned by the court, the regulator, or both.
Why is civility important?
For lawyers, success ultimately means resolving clients’ conflicts and (hopefully) getting paid at the end of the day. When clients are happy with the outcome of their files, they will retain the lawyer again or recommend the lawyer to other potential clients. They are also more likely to pay their legal fees without complaint. Our success, including our ability to meet our financial obligations, depends on the outcome of each file. When a lawyer engages in uncivil and aggressive conduct on a file, the focus shifts from the merits of the dispute to the uncivil behaviour. This does not help the parties resolve their differences quickly or in a cost-effective way. In short, lawyers’ incivility does not guarantee client satisfaction with either the outcome or the cost of achieving it.
Being a successful lawyer also means that you enjoy a good reputation and rapport with clients, other lawyers and the courts. A lawyer who is unreasonable with other counsel or known to engage in aggressive tactics or sharp practice, will likely encounter opposing counsel who are unwilling to grant them adjournments or other accommodations when requested. At a minimum, their sense of collegiality among peers — often the best part of practice — will suffer.
The lawyer who takes advocacy from resolute to bullying, from civil to uncivil, fails to understand, as JFK put it, that “civility is not a sign of weakness.” Many lawyers nonetheless engage in strategies of protracted aggression for the sake of it, unimpeded by ethical obligations or even direction by the court.
Stress of practice and the pandemic
The pandemic has compounded everyday stresses of practice from administrative tasks such as verifying a client’s identity, to court processes, to substantive steps such as reviewing a data room, and as the pandemic dragged on, civility declined. And it was already a concern.
One of the many serious problems associated with incivility is burnout for both the lawyer engaging in the uncivil conduct, and the lawyer who is subject to it.
The World Health Organization defines burnout as “a syndrome conceptualized as resulting from chronic workplace stress that has not been successfully managed”. Burnout is thus a concern for lawyers engaging in uncivil conduct and for those subjected to it.
Burnout arises from facets of practice persisting and crystallizing: too many hours, perfectionism, difficult clients, workplace culture and lack of support, or even perceived lack of support. Lawyers who experience burnout report reaching a point of exhaustion, not wanting to practice anymore. In her article “I Fought the Law and the Law Won: My Burnout Story”, Paula Davis describes progressing from a highly successful corporate real estate lawyer, exhilarated by her work, to experiencing deeply seated exhaustion. She became cynical and felt ineffective. All three are burnout symptoms. Others include forgetfulness, impaired concentration, frequent illness, anger, anxiety, depression, pessimism, isolation, irritability, lack of productivity, feeling stuck, substance use and poor performance.
Left unaddressed, burnout may have ethical consequences that compound the lawyer’s problems. Being competent means understanding client issues and advocating for clients, having intellectual capacity, recognizing limitations in one’s ability to handle a matter, and taking steps to ensure clients are appropriately served (Rule 3.1-1 of the Code of Conduct). If burnout symptoms continue unchecked, the lawyer will not be able to provide competent service and client interests may be compromised. In turn, the lawyer may face a Law Society report and even a negligence claim. All of which will undoubtedly continue the spiral.
It is best to address burnout in its early stages. Recognizing the signs and seeking help can prevent a lawyer from losing the ability to cope with the stress of practice. It is important to recognize that incivility may be a sign of stress in the lawyer who is behaving aggressively, as well as causing stress for the lawyer who is subjected to the behaviour.
In general, lawyers can pursue many self-care strategies, including getting enough rest and exercise, eating well, spending time with family and setting aside time to enjoy hobbies and other interests. Practising mindfulness is another strategy many lawyers employ to manage their stress.
In Improving Civility with Mindfulness, Rebecca Howlett notes that a lawyer who recognizes that their communications are characterized as uncivil can practice mindfulness to identify and recognize stress triggers and reduce impulsive reactivity to those stressors. Mindfulness “creates and holds space to objectively observe our experiences, which helps us slow down and make conscious decisions rooted in awareness.”
Mindfulness can also help lawyers subjected to another lawyer’s incivility. Howlett suggests taking a few moments to breathe deeply, taking stock of the five senses, and using rational self-talk, repeating one’s affirmations.
The best strategy when dealing with an aggressive lawyer is not to allow oneself to respond in kind. It is always better to take the time to respond rationally to the merits, not the emotions. When the opposing lawyer is determined to “go to the mattresses,” create space so that you are not going there, too.