December 13, 2022Back to Latest

Civility and resolute advocacy are not at odds. Resolute advocacy creates “a duty …to raise fearlessly every issue, advance every argument, and ask every question, however distasteful, which the lawyer thinks will help the client’s case” (Code of Conduct Rule 5.1-1, Commentary 1). This does not mean that no holds are barred. Rather, the lawyer must discharge the duty by “fair and honourable means” and “in a manner that is consistent with the lawyer’s duty to treat the tribunal with candour, fairness, courtesy and respect.”

To improve civility and thereby improve lawyer well-being, some American bar societies established formal civility codes. However, as Rebecca Howlett notes in her column Improving Civility with Mindfulness, “we are frankly perplexed that adults with advanced degrees require a code of conduct designed to promote respectful behavior.”

Incivility often manifests in personal attacks on the opposing lawyer or their client, in berating staff, in insulting justices or other lawyers (to their faces or behind their backs), in misleading the tribunal or in bullying junior lawyers. Or female lawyers. Or lawyers belonging to an equity deserving group.

Such strategies are designed to undermine the opposing lawyer, their client or their clients cause but ultimately lack courtesy and respect and bring the profession and administration of justice into disrepute. None of these strategies has anything to do with the merits of the case, nor are they resolute advocacy. Generally the issue is not that the other lawyer’s conduct could be resolute advocacy. The issue is blatant and personal attacks designed to undermine the opposing lawyer, their client and the merits of their side of the matter.

Not surprisingly, these strategies may also impact the confidence or well-being of the opposing lawyer who, along with their client, is the victim of the incivility. Our system is not one where we seek to win at all costs. At least it is not supposed to be. Not only is the tribunal’s truth-finding function undermined, but the opposing lawyer’s confidence, and even their well-being can be negatively impacted.

Rebecca Howlett notes that “incivility is characterized by an inherent lack of respect for others, which can be overt, subtle or even take on the dynamics of a bullying or abusive relationship.” One lawyer trying to convince another that their conduct is unethical as a way of stopping the behaviour is likely wasted effort and could further the poor behaviour and its impact on the victim, eroding their confidence and wellness even more. The better approach for a lawyer on the other side of uncivil conduct is to take control of what they can: their own reaction to the stress and negativity.

Stress and negativity are normal and can motivate us when they do not define how we work. According to Anne Brafford in her article Resilient Thinking: Taming Negative Emotions, they become problematic when we are “reactive to small, daily stressors, when we get stuck in a Stress Spiral, or when stress undermines our confidence.” This means we need to be aware of how we professionally engage with others and how we react to stress and negativity on files and in practice. Brafford further notes in her Resilient Thinking Worksheet that “Resilient thinking starts with learning to separate our thoughts from the emotional and behavioural consequences of those thoughts and cultivating optimism.”

A key strategy in developing resilience to incivility is mindfulness, also characterized as mental flexibility. Practising mindfulness increases awareness of stress triggers and the accompanying thoughts and feelings that arise from them, which in turn can reduce impulsive reacting to those stressors. Practising mindfulness can be described as taking time to take control. Howlett states that increasing our mindfulness “creates a positive feedback loop, lowering our perceived stress levels, expanding our empathy, and increasing our overall sense of well-being happiness, and life satisfaction.”

The promised benefits of mindfulness seem helpful and perhaps life-changing. But mindfulness can be an esoteric concept and it is fair to ask how exactly one practises mindfulness. Brafford perceives mindfulness as creating a space in which a person is “consciously aware of our internal experience and, based on situational demands, to flexibly choose, change, or persist in behaviours that align with our values and goals.” In other words, by taking the time to consider the stressor and our immediate response to it, we can prevent being controlled by it, or mindlessly reacting to it. The deliberate development of intention becomes a key tool to avoid being emotionally manipulated when an opposing lawyer is determined to engage in bullying or other uncivil conduct. A simple example of practising mindfulness is putting on the brakes when an opposing lawyer sends an offensive email. Allowing that email to trigger an electronic back and forth will wind up stress levels and is unlikely to resolve issues that are either substantive or conduct related.

While time and intention are required to develop mindfulness, lawyers who find themselves struggling with civility and burnout can practise some simple steps when dealing with uncivil interactions. Howlett recommends:

1. Take a few moments (even 30 seconds to one minute) and breathe deeply.
2. Do self-massage to ease physical tension – ears, neck, shoulders, hands, etc.
3. Sit or stand with tuning in to your surroundings with your five senses – observe and notice what you see, feel, hear, smell and taste.
4. Use rational self-talk – repeat positive affirmations aloud or mentally.
5. Practise gratitude – write down and reflect on three things that you are grateful for or that went well for you today.

If mindfulness is a skill that an individual can develop to address incivility and prevent burnout, firm culture that supports lawyers can help counter incivility on an organizational level. In this context, culture means what it is really like to work at a firm. What Paula Davis describes in her article How Law Firms Are Leveraging Leadership to Build Positive Cultures and Address Burnout as “the continuous, everyday reality check on the type of firm you run.”

Another lawyer’s incivility is one source of burnout. Davis identifies additional drivers of burnout which include unmanageable workload and lack of recognition, specifically “not hearing ‘thank you’ enough, not being recognized for the extra effort put in, not having a seat at the table in key meetings, and working at a level that doesn’t match their title … promote exhaustion and cynicism, two key dimensions of burnout.”

Successful strategies adopted by firms to address burnout include:

• using technology to improve efficiency;
• committing to fewer meetings and improved structure;
• creating wellness teams;
• holding workshops on burnout and culture; and
• developing deliberate strategies to retain, motivate and connect with employees.

Davis notes that in one firm, “leaders were willing to address tough issues that impact team trust – like how to talk to partners who might not be living up to the firm’s culture and core values.” Each of these strategies demonstrates willingness to listen to employees’ concerns. Any leadership-based approach will begin the necessary shift that begins changing firm culture. These approaches are investments that ultimately will benefit employees and the firm itself by ensuring employees are content, not burnt out, and able to respond fairly to incivility.

Ultimately, burnout is a complex issue with multiple causes. Civility and organizational culture are two such causes which individuals and organizations can effectively address. The cost need not be high provided leaders within the organization support the efforts and the intended change.