Litigation in the adversary system too frequently gives rise to underlying partisan conduct by members of the bar. Too often, the “I'm the toughest gun in town” mentality is a part of some lawyers' marketing of their services and conduct. The overworked maxim – “a lawsuit is not a tea party” – should not remotely be taken to justify uncivil or unethical behaviour.
Judges have every right to demand that counsel act in a civil manner in court in dealing with both the court and opposing counsel. Unacceptable in-court conduct should give rise to sanctions, which include contempt citations and cost orders. Having been there, it continues to amaze me how some lawyers (a very distinct minority) seem to think that conduct that will reasonably be seen by others, including the trial judge and jury, as unduly aggressive actually benefits their clients.
Out-of-the-courtroom incivility is more difficult to control. The Law Society of Upper Canada as the regulator of the profession obviously has a role in dealing with complaints about lawyers' conduct. Its Rules of Professional Conduct prohibit uncivil behaviour and sharp practice. The need is enforcement, not more rules.
In addition, in July 2006 the Canadian Bar Association updated its Code of Professional Conduct (first adopted in 1920) by introducing principles of civility for advocates. The code includes a caution advising lawyers that rude or disruptive conduct may merit disciplinary action. 99
The Advocates' Society has also prepared The Principles of Civility for Advocates, which provides substantial guidance on relations with opposing counsel, communications with others, trial conduct and counsel's relations with the judiciary. 100
If a lawyer's professional standing is not enough incentive to promote civil conduct, the Rules of Civil Procedure allow the court to monitor the conduct of lawyers and, where appropriate, make cost orders against them. Rule 57.07 provides that where a solicitor for a party has caused costs to be incurred without reasonable cause or to be wasted by undue delay, negligence or default, the court may: disallow costs between the solicitor and client or direct the solicitor to repay the client money paid on account of costs; direct the solicitor to reimburse the client for any costs that the client has been ordered to pay to any other party; or require the solicitor to personally pay the costs of any party. The Lawyer's Professional Indemnity Corporation (LawPro) has recently advocated that lawyers behave in a civil manner in order to avoid rule 57.07 claims for costs, noting that such claims have been on the rise in the past three years. 101
I recognize that the Law Society does not have the resources to conduct a full investigation of every reported instance of uncivil conduct. However, I would think that a letter from the Law Society may well have a considerable therapeutic effect in those cases where a full investigation is not warranted. So will cost orders made in those relatively rare cases where the court concludes that the solicitor personally pay the costs of a party.
Despite the increased focus in recent years on civility in continuing legal education, in some law schools and in codes of conduct drafted by professional associations, stories of uncivil behaviour among lawyers are all too common. The issue of civility is particularly important for a self-regulating profession in which rules and standards are developed and collectively applied by members of the profession itself. The rules regulating conduct are already in place, and there are ample resources for lawyers to learn more about professional conduct and civility issues. As a result, lawyers who fail to adhere to these rules should not be easily excused from their breaches.
- The need for ethical behaviour is part of the curriculum in law schools now. Civility is a subset of ethical behaviour that should be emphasized in law schools where this does not now occur.
- Law firms should provide instruction to articling students that would emphasize the importance of civility. Uncivil conduct by articling students should not be tolerated.
- Judges should move to zero tolerance mode when confronted with uncivil behaviour in the courtroom. There is an array of remedies available, including moral suasion, reporting the offending counsel to the Law Society, cost orders and, in egregious circumstances, the contempt process.
- Lawyers should not be reluctant to report instances of uncivil behaviour to the Law Society. If the Law Society does not know about uncivil conduct, it can hardly be blamed for not responding to it.