April 02, 2012
Civility is a hot topic in the legal profession. Law societies and lawyer associations have devoted considerable attention and resolution to it over these past five years. The Law Society of BC, for instance, published a discipline alter last spring: "Lawyers are reminded that courtesy is the first step to avoiding complaints." The alert included several pieces of cautionary advice, including the age-old wisdom, "Adopt a practice in difficult matters of corresponding by letter and drafting the letter and waiting until the next day to review and edit it before sending."
Meanwhile, the Law Society of Upper Canada (LSUC) and the Ontario Courts established civility complaints protocols that included a procedure for judges and justices of the peace to refer incidents of misconduct such as incivility or unprofessionalism to the law society. This process allows judges to request that lawyers receive mentoring from a panel of senior members of the Bar. This would allow judges - who might be reluctant to level complaints against lawyers if the only recourse for the law society was the discipline process - to take action against incivility.
Frank Iacobucci, the former Supreme Court of Canada justice, expresses strong feelings in favour of civility. He worries about the consequences of letting it fall away. He believes it has a place in hard-fought advocacy; he believes it is a bedrock value that matters to the future of Canada's justice system. "There are consequences for the breakdown of civility, and personally, I think it becomes disrespect for the administration of justice."
"Are people going to yell at each other, are people going to insult each other? It can turn into a kind of mob mentality. People go to court for the resolution of their disputes. If what they see is uncivil conduct - lawyers yelling and trading insults - it reflects very badly on the administration of justice. People may find it corny, but I happen to believe in it."
Frank says the best advocates are quite capable of demolishing the other side's case "without adding vitriol, or name-calling or hyperbole. This doesn't mean everybody's Caspar Milquetoast when they go to court. That's not what I'm advocating. You’ve got to be assertive, you've got to be emphatic, and you've got to be thinking all the time about what's in the best interest of your client. I'm just not convinced it's in their best interests to have their lawyers behave that way. We say things about, 'My learned friends' and 'with great respect.' We may not mean it all the time, but we say it because we want to control the emotional side of things."
Read the full article here.