The story “Play Nice: Vigorous advocates still need to keep a civil tongue” contains an error. In the case involving Joseph Groia, the Law Society Appeal Panel did not set aside the $250,000 cost award; it asked for submissions related to whether a reduction in costs was warranted. The submissions were recently filed and a decision has not yet been made as to whether a reduction is warranted. National regrets the error.

At an early age, children learn how to play well with others. Be kind and courteous. Don’t yell or be rude. When you do something wrong, apologize. The basic concept is easy to grasp. But what does it mean in the practice of law?

In a nutshell, civility requires lawyers to remain courteous and respectful to lawyers, clients and members of adjudicative bodies. The Model Code of Professional Conduct recently adopted by provincial law societies sets out some rules.

“The language of the Codes is enriched to make lawyers more accountable to law societies,” says W. Brent Cotter, professor and former dean of the College of Law at the University of Saskatchewan. “There’s a duty to be courteous. The Code says you ‘must be courteous and civil,’ as opposed to ‘may,’ which is more ambiguous. The expectations are established.”

(The CBA’s Code of Professional Conduct, updated in 2009, sets out principles of civility for advocates as an educational tool to encourage and maintain civility in the justice system.
For details, visit cba.org/CBA/activities/pdf/codeofconduct.pdf.)

Cotter identifies three types of uncivil behaviour: general lack of courtesy; gratuitous behaviour where a lawyer is provoked to act in an uncivil manner; and gross misconduct in which the lawyer’s gratuitous behaviour is unprovoked.

When a lawyer is provoked, it’s his or her behaviour — not the instigator’s — that is the focus of disciplinary proceedings. For example, in Doré v. Barreau du Québec, Gilles Doré was disciplined for writing an insulting letter to a judge who called him an “insolent lawyer.”

Gross misconduct is easily recognized. Ron Cherkewich used strong language at a hearing and submitted a piece of toilet paper signed by him and his client as documentation of a retainer letter. The Law Society of Saskatchewan found Cherkewich had breached the Code of Professional Conduct and was guilty of conduct unbecoming.

The question of where to draw the line between incivility and being a vigorous advocate was explored in the misconduct hearings involving Toronto lawyer Joe Groia. In 2012, The Law Society of Upper Canada (LSUC) ruled that Groia’s behaviour in defending his client at trial was uncivil and handed him a two-month suspension. Groia appealed and the LSUC reduced the suspension to one month and set aside the $250,000 cost award.

“Sometimes there’s inappropriate behaviour that’s unwisely rude but done in good faith,” says Cotter. “I think that’s what happened in the Groia case. We need to be cautious of advocacy being chilled by sanctioning lawyers. Lawyers could be so fearful that they may not be so zealous in advancing their clients’ claims. That could damage clients.”

There’s lot of information available about learning the rules of civility. Legal institutions are creating new educational tools to help lawyers develop skills in civility. Law schools include content about civility in required ethics courses. And groups such as the Advocates’ Society offer courses on civility and professionalism. In 2014, the CBA will offer a courtroom etiquette program as part of the Skilled Lawyer Series.

“There is a constant message to act in an honourable, professional way,” says Cotter. “Litigators learn about the ability and necessity to advance their case in the very best way by being professional and respectful.”

Think before you send

It’s the end of a long day and you receive a long, nasty email from opposing counsel. What do you do?

The growth of Twitter, Facebook and LinkedIn has meant a new generation of lawyers can respond instantly to email and texts. But that doesn’t mean they should: being too quick with the send button can backfire.

Law societies are seeing an increase in complaints arising from inappropriate email communications. For example, in the past 18 months, complaints related to email communication have been filed against 60 B.C. lawyers, according to a recent article published by The Law Society of British Columbia. Bad behaviour can lead to serious consequences: In Indiana, a deputy attorney general was fired after tweeting that “live ammunition” should be used on protesters.

“You need to pause and re-read before you send,” says Connie Reeve, a partner at Blakes and 2012 recipient of the 2012 Catzman Memorial Award for Professionalism and Civility. “Think about if this statement goes viral. Never send immediately.”

Avoid strong language or disrespectful comments. Carefully review communications before hitting send and don’t use the reply-all button. Freya Kristjanson, board member for the Advocates’ Society and litigator at Cavalluzzo Shilton McIntyre Cornish, recommends waiting until the next day to respond to late night emails.

“If it’s a letter with lots of diatribe, then you don’t need an immediate response,” says Kristjanson. “Don’t be provoked and feel that you have to respond to every email. Give yourself time.”

How to deal with bullies

Here are a few tips on how to handle difficult opposing counsel.

1. Don’t respond to personal attacks
Silence can be a great neutralizer. Personal attacks or snippy comments can be used to distract lawyers from the issues.

2. Talk to the lawyer about his/her behaviour
“Sometimes people are just having a bad day or they’re dealing with a tough client,” says Derry Millar, former treasurer of The Law Society of Upper Canada and partner at WeirFoulds. “Ask them if they know what they’re doing. Talking can resolve the problem.”

3. Ask a senior lawyer or colleague for help
If you’re dealing with someone with a bad reputation, seek out advice from a senior lawyer or colleague who’s worked with the person before.

4. Get all communications in writing
Keep a record of all communications via email, formal letters or through court transcripts.

5. Report the behaviour to the law society
Serious, disrespectful behaviour should be reported.

 

The high cost of rudeness

Civility is more than a professional requirement: the cost in time, money and reputation can be significant.

“Unprofessionalism slows down the administration of justice,” says Derry Millar, former treasurer of the Law Society of Upper Canada and partner at WeirFoulds. “People we serve see the disrespect [which] begins to affect the administration of justice. It slows down trials and undermines the system.”

Furthermore, needless motions and endless communications with opposing counsel can rake up unnecessary bills for the client.

“Those wars of words are a waste of the client’s money,” says Connie Reeve, a partner at Blakes and 2012 recipient of the 2012 Catzman Memorial Award for Professionalism and Civility. “If I spend time going back and forth, that wastes time. Sometimes, lawyers frame issues in a way that’s annoying. Maybe the client for opposing counsel is unreasonable and is kind of stuck. Don’t get involved in a fight.”

And don’t forget about reputational damage. Lawyers know who is difficult and rude. Bad reputations can follow lawyers throughout their career.

“Uncivil behaviour tarnishes the profession,” says Freya Kristjanson, a board member for the Advocates’ Society and administrative lawyer at Cavalluzzo Shilton McIntyre Cornish. “Personally, it makes working as a lawyer not so much fun. There’s the cost to court or the lawyer drawn to the courts and it wastes the taxpayer’s money.”

 

Key Resources / Les ressources précieuses

Here are a few resources to give you more guidance on professionalism.

Best Practices

A Practical Guide to Civility (The Advocates’ Society)

Principles of Civility for Advocates (The Advocate Society)

Code of Professionalism (American Board of Trial Attorneys)

Civility as a Strategy in Litigation

Using it as a Tactical Tool by Eugene Meehan, Q.C.

 

Advice from the experts