Countering incivility in the legal profession

Civility and resolute advocacy in law are not at odds. And yet lawyers often display acts of incivility—personal attacks against opposite counsel or their client, berating staff, insulting justices, misleading the tribunal or bullying juniors. Or female lawyers. Or lawyers belonging to an equity-deserving group. 

These strategies are designed to undermine opponents, real or perceived. Ultimately they only serve to bring the profession and administration of justice into disrepute. They have nothing to do with the case's merits, resolute advocacy, or assisting the tribunal in its truth-finding function.

Certainly, under Alberta's Code of Conduct, lawyers have to raise every issue and argument and ask every question, however distasteful, which the lawyer thinks will help "the client's case." But they must discharge that duty by "fair and honourable means" and treat "the tribunal with candour, fairness, courtesy and respect," the Code stipulates.

Not surprisingly, these strategies also undermine the confidence of those who are targeted. 

As Vermont lawyer Michal Kennedy noted, a "lack of civility is contributing to an increase in the stress and burnout that impacts lawyers' well-being and wellness."

So how should one react when treated poorly? As Rebecca Howlett notes, "incivility is characterized by an inherent lack of respect for others, which can be overt, subtle or even take on the dynamics of a bullying or abusive relationship." But trying to convince the perpetrator that their conduct is unethical is probably futile. It may even encourage further poor behaviour. 

A better approach is to exercise control, whenever possible, over reactions to stress and negativity -- otherwise normal feelings that can even motivate us, provided they do not define how we work. 

According to Anne Brafford, problems arise when we are "reactive to small, daily stressors, when we get stuck in a Stress Spiral, or when stress undermines our confidence." It is important to be aware of how we professionally engage with others and how we react to stress and negativity on files and in practice. 

Brafford further notes that "[r]esilient thinking starts with learning to separate our thoughts from the emotional and behavioural consequences of those thoughts and cultivating optimism." That kind of mental flexibility can be developed by practising mindfulness, which increases awareness of stress triggers and the accompanying thoughts and feelings that arise from them. This can reduce impulsive reactions, but it means taking time to consider those stressors and our immediate response to them. 

Intention becomes a key tool to avoid being emotionally manipulated when an opposing lawyer engages in bullying or other uncivil conduct. A simple example of practising mindfulness is putting on the brakes when an opposing lawyer sends an offensive email. A quick response is likely to trigger an electronic back and forth, which will wind up stress levels and not resolve any issues.   

It is one thing to develop mindfulness as a personal skill to counter incivility and prevent burnout. But firms must also support lawyers in this regard by encouraging the right culture, or what Paula Davis describes as "the continuous, everyday reality check on the type of firm you run." 

In addition to incivility, Davis identifies additional drivers of burnout, namely unmanageable workload and lack of recognition — "not being recognized for the extra effort put in, not having a seat at the table in key meetings" These promote exhaustion and cynicism among workers, "two key dimensions of burnout." 

To address burnout, firms have several options — using technology to improve efficiency, committing to fewer meetings, creating wellness teams, and developing deliberate strategies to retain, motivate and connect with employees. 

Davis recalls the example of one firm where leaders were committed to talking to partners failing to live up to the firm's culture and core values. That demonstrates a willingness to listen to employees' concerns and also a willingness to invest in the firm and employees by ensuring they are content, not burnt out, and able to respond fairly to incivility. 

Burnout is a complex issue with multiple causes. To address it effectively, working on civility and organizational culture is a good place to start. The cost need not be high, provided leaders within the organization support the efforts and the intended change. 

View a longer version of this article at Ethically Speaking: Linking Civility and Well-Being - Law Society of Alberta