What must be done: Judges have a duty to develop civility

Recent research points out that incivility may lead to bullying, which could lead to harassment. This continuum highlights the importance of addressing incivility immediately, before it progresses. Judges have a unique and influential role to play in this process.

Canon 3 of the Code of Judicial Conduct (titled “A Judge Should Perform the Duties of Judicial Office Impartially and Diligently”) contains relevant provisions with respect to both the adjudicative responsibilities of judges (Section A) and the administrative responsibilities (Section B).

For adjudications, judges are required to exemplify civility and require the same of lawyers and court staff. Canon 3(A)(3) provides:

“A judge should be patient, dignified and courteous to litigants, jurors, witnesses lawyers and others with whom the judge deals in an official capacity and should require similar conduct of lawyers and of staff, court officials and others subject to the judge’s direction and control.”

The judges I talk to readily acknowledge this responsibility. They also recognize their responsibility to ensure that proceedings are conducted with decorum (Canon 3(A)(2).

“Administrative responsibilities” refers to the judge as manager. Canon 3(B) provides:

(1) A judge should diligently discharge the judge’s administrative responsibilities, maintain professional competence in judicial administration and facilitate the performance of the administrative responsibilities of other judges and court officials.

(2) A judge should require staff, court officials and others subject to the judge’s direction and control to observe the standards of fidelity and diligence that apply to the judge.

In this capacity, judges should be aware of two recent reports. In 2019, the International Bar Association released its report “Us Too? Bullying and Sexual Harassment in the Legal Profession.”

The report outlined findings from the largest-ever global survey on bullying and sexual harassment in the profession, which included nearly 7,000 respondents across legal workplaces including law firms, in-house, government and the judiciary.

The report found bullying in legal workplaces is prevalent and has a significant gendered dimension. In the U.S., 63% of women and 38% of men reported they’ve experienced bullying at work.

Ridicule or demeaning language was the most common form, impacting more than half of respondents who have been bullied. Two forms of supervision-related bullying were also common: “Overbearing supervision, undermining of work output or constant unproductive criticism” and “being deliberately given too much or too little work or work inadequate to the position.”

The report demonstrates that bullying in the legal workplaces is rarely reported. Approximately 60% of respondents had never reported incidents. Only 11% reported all occasions of being bullied. Reasons for not reporting boil down to power differentials: 60% cited the status of the perpetrator, 58% said fear of repercussions, 47% stated the behavior was perceived as acceptable and 38% said it was a lack of reporting protocols.

In his 2017 State of the Judiciary, as the #MeToo movement was breaking, U.S. Supreme Court Chief Justice John G. Roberts Jr. said, “The [j]udicial [b]ranch cannot assume that it is immune from the problems of sexual harassment that have arisen elsewhere in the public and private sectors.” Roberts commissioned a working group to examine safeguards in the judiciary that protect employees from inappropriate conduct. In mid-2018, the Federal Judiciary Workplace Conduct Working Group issued a report. The report recommended reforms, including changing the code of conduct to emphasize judges’ responsibility in ensuring courts are safe and civil workplaces.

The working group found that inappropriate conduct, “although not pervasive within the judiciary, is not limited to a few isolated instances.” In these instances, incivility, disrespect or crude behavior were more common than sexual harassment.

The working group relied on a June 2016 study by a select task force of the U.S. Equal Employment Opportunity Commission, which noted that “incivility is often an antecedent to workplace harassment.” The working group recommended that rather than focusing on eliminating unwelcome behavior, the judiciary should “promot[e] respect and civility in the workplace generally.”

Here, in Illinois, our Supreme Court recognizes the importance of the judiciary in proactively promoting civility. This year, the biennial Judicial Education Conference has been expanded to include not only judges but court officials and personnel.

The court’s three-year strategic agenda includes a goal dedicated to establishing “professionalism and accountability throughout the judicial branch” through adherence to the highest ethical standards for professional conduct. I stress the importance of the words of the federal working group: “As the branch of government whose core purpose is equal justice under law, the [j]udiciary must hold itself to the highest standards of conduct and civility to maintain the public trust.”