In the Woodpile: Addressing civility

By Shawn Wood
Seyfarth Shaw

Every other year, the Illinois State Bar Association holds its Allerton Conference, where judges and lawyers spend a few days at the Starved Rock Lodge in Utica to confront an issue impacting our profession.

The topics tackled in prior years have ranged from reforming the jury system to ”The Quest for Justice: Cost, Efficiency and Fairness for All.” In 2008, the Allerton Conference focused on ”Civility Initiatives for Civil Litigation.” When I heard this topic, I’ll confess, I was a little skeptical.

I appreciate that incivility remains a serious issue in our profession. It impacts our day-to-day lives, and, in extreme cases, has caused good lawyers to leave the practice of law.

It’s just that, I attended a civility seminar in DuPage County a few years ago, and I walked away with mixed feelings. The speakers inspired me, but when I attempted to strike up a dialogue with one during the reception, he didn’t show any sincere interest in solving ”the civility crisis.” He was more focused on stalking the waiter for more crab Rangoon.

The articles I’ve historically encountered regarding professionalism and civility often seem well-intentioned, but short on solutions. There’s also a tendency to blame incivility on the younger generation while waxing about the glory days of the profession.

Dishing out this discouraging, ”you missed out” message leaves new lawyers feeling like William Miller in ”Almost Famous,” when legendary rock critic Lester Bangs tells him ”you’re damn good, too bad you missed out on rock ‘n’ roll.”

So imagine my surprise when I attended this year’s Allerton Conference and the entire civility program steered clear of rose-colored nostalgia. In fact, to use a description befitting the professionalism emphasized throughout the conference, it totally rocked.

The speakers at this conference grabbed attendees by the lapels from the outset, providing numbers on the rates of depression, anxiety, hostility, paranoia, social alienation, isolation, alcoholism, divorce, and suicide among lawyers.

The conference then moved quickly to identifying core reasons for the problems, outlining solutions and exploring whose responsibility it is to implement those solutions.

One commentator explained that the very nature of civil litigation involves two lawyers (often Type A personalities) squaring off against one another under circumstances where there will be a winner and loser, and part of each lawyer’s job will be to capitalize on any possible error in judgment that the other side makes.

Others emphasized that client expectations often drive incivility, as the perception lingers that clients favor machismo in their lawyers and make their hiring decisions accordingly.

Another speaker cited the pressures to increase profits-per-partner in firms and outlined what he called ‘’strategic incivility,” positing the well-received theory that most lawyers are not inherently mean-spirited, but are driven to act as such because they believe incivility to be a profitable strategic tactic in litigation.

This lawyer proposed that the solution to the problem of strategic incivility lies in making it unprofitable through a new Illinois Supreme Court Rule, patterned after 28 U.S.C. 1927, sanctioning ”vexatious” conduct.

While further commentary during the conference suggested that the Illinois Supreme Court justices and members of its rules committee in attendance were not enamored with the idea of a new Supreme Court rule governing this issue, courts and local bar associations have made significant strides in identifying and reducing incivility in civil practice.

These programs have included the appointment of respected members of the bar who personally meet and work with attorneys or judges whose conduct fails to satisfy established standards of civility and professionalism.

Some of these measures have met with resistance when tried in other jurisdictions. In California and Arizona, for example, rules which required lawyers to ”abstain from all offensive personality” [insert own joke here] were amended following a 9th Circuit ruling which held this phrase to be unconstitutionally vague.

In other states, lawyers facing charges of incivility have sought to raise First Amendment defenses.

These types of challenges must be considered by any court or bar association seeking to strike a balance between remedying incivility and triggering other legal challenges.

The final point I learned at this conference was that the alleged ”loss of civility” within our profession is something that has been raised and debated over the last three decades.

From the ABA’s Stanley Commission Report (to address a perceived shift away from the principles of professionalism in the 1980s) to the Haynsworth Report (”to better inculcate a higher sense of professionalism among American Lawyers” in the 1990s), every new generation has encountered the same jibe from prior generations who insisted that standards of professionalism were declining.

This provided me with a new, optimistic perspective, because if this perceived decline in civility has been raised for the last 30 years, at least the current leaders are working harder than ever to do something about it.

I accordingly left the seminar with my faith in our profession restored. Or, in Lester Bangs’ parlance, I realized I hadn’t missed out on rock ‘n’ roll after all.