The newsletter of the ISBA’s Young Lawyers Division
Law practice civility in the wake of a vitriolic election cycle
Last month marked the conclusion of a profoundly divisive election cycle marred by exceptionally negative campaign ads, ruthless personal attacks and subordination of genuine issues. Even the most substantive of the three presidential debates included the candidates interrupting and talking over one another (and the moderator), name calling and insinuating if not plainly stating that the other was a criminal. No doubt, Mrs. Clinton at times attempted to elevate the dialogue and refocus on policy, notably invoking First Lady Michelle Obama’s proclamation that, “When they go low, we go high.” Yet, for reasons far beyond the scope of this article, it often seemed that little could be done to salvage the dignity of the electoral process. Along the way, political discourse plunged into the gutter.
Appetite for Vitriol
More concerning, perhaps, is what one friend aptly described as the public’s “sheer appetite for the vitriol.” Reasonable minds may disagree about the extent to which that appetite existed on its own or was catered to and inflamed by the candidates’ rhetoric. Regardless, at this point, it not only exists, but runs the risk of being taken for granted as a reality of political marketing. After all, for a whole new crop of young voters, this election cycle is simply the norm, having set the standard as all they know.
While ubiquitous in mainstream election coverage, the magnitude of this animosity was displayed most prominently through social media, where generalization, hyperbole, extremism and, frankly, absurdity, seem to flourish. There may be a fortunate few who are unable to recall at least several instances of otherwise “reasonable and decent” friends or connections taking to Facebook, Twitter or similar platforms to use language like “idiot(ic),” “moron(ic)” or far worse to express disagreement with a principle, person or demographic. Some ideas, and even at times some people, are indeed ridiculous, but a rising tide of polarization flooding through matters of great importance to the most trivial is leaving little ground for rational thought. In an Information Age dominated by memes, clips, sound bites, 140 character philosophies and data overload, it seems “the medium [truly is] the message,” with basic values of respect and civility displaced by volume and efficiency.
At my alma mater, Loyola University Chicago School of Law, where I teach a course focused on the development of persuasive communication skills, some class time was dedicated to reviewing the presidential and vice presidential candidates’ debate styles and strategies. It proved worthwhile for exploring the use of themes, appeals to commonly held beliefs and values, how to concisely package and market complex concepts and the power of exposing bias. Much of the discussion, however, concerned what not to do, and how engaging in certain tactics accomplishes little other than undermining counsel’s credibility in the eyes of the court and, if unchecked, the integrity of the courts in the eyes of the public.
Guns & Roses
The adversarial legal system is, at its core, a union of conflict and civility. Without conflict, the system is irrelevant. Without civility, it is impossible. Given the wide range, gravity and often highly personal nature of disputes brought to the courts, whether relating to life, liberty, property or other significant rights, it is no surprise that the highest ideals of professionalism are not always actualized. Indeed, zealous advocacy requires at least some measure of visceral appreciation for a client’s circumstances, such that it may from time to time run up against the very standards of professionalism by which it is encompassed. The complexity of this dynamic has made civility in the legal profession a perennial concern for lawyers, judges and the public at large.
Prior to being revised in 2010, the Preamble to the Illinois Rules of Professional Conduct (IRPC) concluded with guidance regarding this critical balance, stating:
The lawyer-client relationship is one of trust and confidence. Such confidence only can be maintained if the lawyer acts competently and zealously pursues the client’s interests within the bounds of the law. ‘Zealously’ does not mean mindlessly or unfairly or oppressively. Rather, it is the duty of all lawyers to seek resolution of disputes at the least cost in time, expense and trauma to all parties and to the courts.1
The current iteration confirms the same principles in slightly different terms, emphasizing the spirit of the rules and broader social role of lawyers and the courts, as follows:
[Issues of professional discretion] must be resolved through the exercise of sensitive professional and moral judgment guided by the principles underlying the Rules. These principles include the lawyer’s obligation zealously to protect and pursue a client’s legitimate interests, within the bounds of the law, while maintaining a professional, courteous and civil attitude toward all persons involved in the legal system.2
The last two decades have seen a coordinated effort among the nation’s courts, bar associations and law schools to address concerns that “incivility pervading much of contemporary legal practice was eroding the public confidence in lawyers and the justice system.”3 Through increased focus on professionalism, development of social and educational resources and rules promulgation, this movement advances an ethos housed in the first sentence of the IRPC, which states, “A lawyer, as a member of the legal profession, is a representative of clients, an officer of the legal system and a public citizen having special responsibility for the quality of justice.”4
Where We Are Going Now
The trend to recognize more fully a lawyer’s concomitant duties is not without its critics. In a brief but thoughtful article charting two centuries of the attorney-client relationship, the authors (one of whom was appointed to the federal bench last year by President Obama) posit that, “When lawyers start to put their duty to the ‘system’ before their duty to their clients, the adversary system falls apart.”5 Respectfully, the criticism falls flat because it (1) incorrectly assumes that priority is given to the system above and adversely to the client with no mechanism for resolving or at least relieving potentially conflicting duties, and (2) ignores the fact that the very existence of the system itself requires dedication to its integrity from those through which it operates. Not unlike the President-elect’s prior suggestion that he may not accept the election results, a lawyer’s refusal to acknowledge a duty to the legal system is per se uncivil.
In an article titled, “Civility as the Core of Professionalism,” Jayne R. Reardon, the Executive Director of the Illinois Supreme Court Commission on Professionalism, identifies (with a subtle nod to Illinois Supreme Court Rule 708 - Committee on Character and Fitness) that “Capacity to act in a manner that engenders respect for the law and the profession – in other words, civility – is a requirement for receiving a law license and, in some jurisdictions, for retaining the privilege of practicing law,” concluding that “aspiring and practicing lawyers should be disabused of the notion that effective representation ever requires or justifies incivility.”6 She then sets forth some “tangible benefits” of civility, including not limited to strategic advantage in a lawyer’s engagement, increased likelihood of resolution, improved appeal to the judge and jury, reduced costs to the parties and judiciary, reputational gain, professional rewards and fostering public confidence in the legal system.7
In stark contrast to the merit-based conflict resolution afforded by civility in the legal profession, the scorched-earth tactics employed in the recent election have left the public with major questions regarding the President-elect’s most basic policy objectives, let alone his strategies for achieving them. As I conclude this article on the day after the election, but at least several weeks before it is published, I look forward to hearing my students’ final oral arguments this evening, which I am confident will demonstrate not only a command of the facts, law and procedure, but above all, a sincere respect for the process that is central to the practice of law and administration of justice.