Why civility matters

Lawyers write for a living. But too often, our letters look like weapons of war, not instruments of resolution. 

Across the country, our professional rules don’t treat tone as a nicety—they fold it into the duty of advocacy itself. In British Columbia, we’re told to represent the client resolutely and honourably, and to be courteous, civil, and act in good faith. Those are not ornamental phrases. They define how we should advocate in correspondence, where most disputes are born, shaped, and (ideally) settled.

I would like to propose a theory: defaulting to heavy-handed language, admonition, or invective is bad advocacy. It runs counter to our oath, undermines public trust, and is generally a disservice to both clients and the system. 

Are there moments for a polemic? Almost certainly. But if we’re honest, few of us can recall ever receiving a message that we thought was so polite that it was unprofessional. The inverse is far more common.

Naming the elephant

Many of us have heard the term “zealous advocacy” as a description of the duty a lawyer owes to their client. However, this admittedly catchy phrase is anachronistic. Our duty is advocacy that is resolute, honourable, and fair. This is the resolve of the monk, not the zealot’s fervour. Zeal inflames and polarizes. Zeal is concerned with ego and ideology. Resolve stays rational, plain, and humble. Resolve is concerned with service and duty.

The Code of Professional Conduct for British Columbia is unambiguous: press your client’s case and keep “the proper tone of a professional communication.” In my view, that excludes correspondence deliberately crafted to provoke negative emotions or, worse, sent without regard to its likely impact. While incivility between lawyers is generally unhelpful, the greater risk arises when this kind of communication reaches non-lawyers, especially self-represented parties. There, the potential for misunderstanding, escalation, and harm is magnified.

Avoidable stress imposes costs

If you’ve ever watched a layperson read a legal demand, you’ve seen the physiological reaction: shallow breathing, flushed face, racing thoughts. They seem distressed, to put it mildly, and it’s not just your intuition. A 2004 meta-analysis of 208 lab studies found that the presence of “social-evaluative threat” (SET), where “...the performance was captured on permanent record…, an evaluative audience was present, or a person offering negative social comparison was present…” produced significantly stronger stress responses than circumstances in which SET is not present. 

A lawyer’s letter, particularly when read by a layperson, fulfills each SET factor: a permanent record (the letter itself, the evidence upon which it is allegedly based, or both), an evaluative audience (the lawyer, their client, or both), and a negative comparison (implicitly drawn between the recipient and the implied standard they allegedly failed to meet).

A similar pattern shows up in writing. A set of 2021 studies on email incivility links poor treatment through writing to insomnia and next‑morning negative affect. In other words, how we write today affects how someone sleeps tonight and how they feel tomorrow. 

We already know the rest: distress can lead to poor decision-making, polarize positions, and entrench conflict. It’s also tied to physical effects, including spikes in heart rate, blood pressure, and cortisol levels, as well as sleep disturbances and, with repetition, broader health risks.

None of this requires us to speak only in euphemisms or platitudes. In adversarial work, some discomfort is inevitable. To be resolute is to be willing to say hard things. But that is not a free pass to say them however we like. Adding avoidable stress imposes costs we don’t see, and unnecessarily harsh letters are small, indirect acts of gratuitous harm. Where a harsh letter is appropriate, it should be the carefully tailored exception, not the rule.

 A duty to advocate resolutely, not zealously

Clients will sometimes ask for a letter that “puts someone in their place.” In some cases, a shock and awe approach can be about results. Studies show that the effect of emotional content on negotiations is complex, but there are circumstances where it can be effective. It does, however, reliably damage the relationship (if any) that follows. 

Even in the rare cases where a strongly worded missive might make sense from a results-oriented perspective, cautions apply:

• Written invective is a blunt tool, and its effectiveness in obtaining concessions is relatively small and inconsistent
• The relationship that has just been damaged may last longer than your client hopes
• What a client wants isn’t always what’s best for them

In these circumstances, it’s worth remembering our duty is to advocate resolutely, not zealously, and that “[n]o client has a right to demand that [a] lawyer be illiberal or do anything repugnant to the lawyer’s own sense of honour and propriety.” 

The key, I think, might be to remember that the recipient is a human being, not a machine into which words go and from which results emerge.

Communication the core of our profession's work

We also owe compassion to ourselves. We are all flesh and blood, and perfect tone at all times is an impossible standard—especially in writing, a medium whose intended tone we are reliably bad at construing. 

When a communication feels uncivil, I would humbly suggest we try to assume good faith, practice forgiveness, and answer in the tone we wish we’d heard. When in doubt, there’s usually little harm in picking up the phone and asking if the way we’re interpreting the communication is the way in which it was intended.

Civility isn’t an accessory to be bolted on when convenient. In and out of court, communication is the core of our profession's work. Civil communication is the backbone of persuasive advocacy and the credibility of the system itself. Communication that treats people with dignity—even while delivering hard messages—honours the profession’s promise to the public: that we pursue justice, not merely victory.

The work is the long game: clarity, credibility, results, and the intrinsic reward of honouring our obligations to a learned profession that helps anchor democracy. Our clients trust us to advocate for them. The public trusts us to preserve the forum. Each keystroke may seem insignificant, but when repeated day after day, our words shape the culture of the profession and its place in the world. 

If we’re going to be zealous, let’s be zealous about that.
 

*This article first appeared in BarTalk, the publication of the Canadian Bar Association’s BC Branch.