Robust communications or incivility - where do we draw the line?

Abstract

Civility has long been considered a core value of lawyering. For some time, concern has been expressed in the literature about the loss of civility in the legal profession, and regulators and professional associations have sought to foster civility and to discourage, and in some cases, penalise, incivility. In particular, instances of incivility or discourteousness are increasingly linked to questions of misconduct. However, the notion of 'civility' is itself, often contentious, and the line between 'robust' communication and incivility is unclear. Does civility matter? If so, when will lawyer advocacy on behalf of the client, or their strongly worded criticisms of an opponent's actions, become the subject of claims of unethical behaviour? Arguing that civility is important, this article will analyse relevant case law from Australia, the United Kingdom, the United States, Canada and New Zealand, in order to better understand contemporary conceptions of civility and to draw out principles currently being used to gauge the distinction between appropriate communications and unethical behaviour. The article finds a relatively high degree of consistency in the approach across jurisdictions. This suggests that there is, broadly speaking, a common understanding of the meaning and significance of lawyer civility. At the same time, there are relatively few cases that deal with lawyer incivility. This is somewhat surprising in light of the concerns around loss of civility in the profession.