The obligation

Three ways to speak up for civility

Professionalism on Point

Jayne R. Reardon

Jayne Reardon is the executive director of the Illinois Supreme Court Commission on Professionalism.

March 2019

The Illinois Supreme Court Commission on Professionalism promotes civility, professionalism and inclusion among lawyers and judges in Illinois.

The commission works against today’s backdrop of increasingly coarse behavior in the political arena. Should lawyers and judges take a stand against incivility in their communities and workplaces? Can they stem the tide?

Lawyers’ obligations

Civility is required for a law license. The Illinois bar application requires applicants to “conduct oneself in a manner that engenders respect for the law and the profession.”

Once admitted to practice, lawyers are guided by the preamble to the Rules of Professional Conduct. The preamble states that lawyers are expected to exhibit respect for the legal system (Cmt. 5) and should further the public’s understanding of and confidence in the rule of law and justice system (Cmt. 6).

The preamble also acknowledges that lawyers should resolve conflicts that arise from a lawyer’s duties to clients, the legal system and the lawyer’s own interests through the exercise of discretion and judgment, “[w]hile maintaining a professional, courteous and civil attitude toward all persons involved in the legal system (Cmt. 9).”

We often hear that lawyers have a duty of zealous advocacy that’s not compatible with civility. But “zealous advocacy” doesn’t appear in the black letter of the rules. Rule of Professional Conduct 1.3 compels reasonable diligence and promptness in representing clients. Comment 1 to the rule clarifies the depth of that duty, noting that a lawyer should “act with commitment and dedication to the interests of the client and with zeal in advocacy upon the client’s behalf.” (Rule 1.2 Cmt. 1).

This may be where the image of lawyers as partisan and combative zealots started. But the comment goes on to dispel that approach:

“The lawyer’s duty to act with reasonable diligence does not require the use of offensive tactics or preclude the treating of all persons involved in the legal process with courtesy and respect.”

Judges’ obligations

A lawyer who ascends to the bench has a heightened responsibility to promote civility.

The preamble to the Code of Judicial Conduct (both the model and Illinois versions) states that judges “must respect and honor the judicial office as a public trust and strive to enhance and maintain confidence in our legal system.” Several provisions of the Code of Judicial Conduct require judges to exhibit civil conduct and to demand civil behavior from others in the system.

Illinois Supreme Court Rule 63 (Code of Judicial Conduct Canon 1) states that a “judge should participate in establishing, maintaining and enforcing, and should personally observe, high standards of conduct so that the integrity and independence of the judiciary may be preserved.”

Rule 62 (Canon 2) requires that a judge conduct herself in a manner that “promotes public confidence in the integrity and impartiality of the judiciary” and Rule 63 (Canon 3) provides that a judge “should maintain order and decorum in proceedings before the judge.” Perhaps more to the point is Rule 63 (A.)(3):

“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.”

Reading these words, I’m reminded of many times in my practice when I wished judges would have been more proactive in demanding civility from counsel. When arguments got heated — usually about discovery — many judges would take a hands-off approach. Instead of firmly resolving a discovery dispute, judges often suggested attorneys go away and “work it out between themselves.” This often led to more aggressive arguments outside the courtroom.

Champions of civility

Lawyers and judges have the obligation to exhibit and promote civility in the legal and judicial systems. They also must demonstrate leadership in their workplaces and communities.

Here are three ways that lawyers and judges can work to stem the tide of incivility:

  1. Speak up and reframe. If you hear slurs, personally pejorative comments or unfair statements, say something. Explain the legal process, the importance of civility and of the rule of law to those who don’t have legal training.
  2. Listen, don’t label. Listen to opposing viewpoints with an open mind. Fight the urge to reinforce your views. Instead, try to understand others’ viewpoints.
  3. Set civility standards for your organization. Work with stakeholders to identify shared values. Then champion and incentivize those behaviors by keeping them front and center.

It’s a challenging time for civility, but also a unique opportunity. Lawyers and judges can reinforce the civil underpinnings of our institutions. We should all challenge ourselves to become champions of civility.