by Judge Robert L. Jackson
I’ve been a member of the Idaho State Bar for 40 years. The young lawyers probably think I’m some sort of dinosaur. My contemporaries just sit around and talk about our health – or lack there- of. However, we all have one thing in common – our profession. That is what it is; it is a profession and it should be recognized, respected, and treated for what it is. Many now behave like civility is no longer a core element of the profession.
My “legal” career has its roots back to 1974 when I became a Pocatello Police Officer. After six years as a “cop” I enrolled at the University of Idaho College of Law and joined the bar in 1983 working as a prosecutor in Power County with a couple of true professionals – Ben Caviness (de- ceased now) and Mark Beebe (full-time golfer?). That start instilled what honor meant. Those two gentlemen taught me that being uncivil, abrasive, abusive, hos- tile, or obstructive would get you nowhere in the legal profession.
My active legal practice continued until 2013 when I was appointed to be a magistrate in Payette County. Those 30 years prior involved general criminal and civil litigation either in a courthouse or in front of the Industrial Commission. Civility ranged from high to low depending on where you were in those three decades, which venue you were in, and the type of case you were dealing with.
Nearly all of the attorneys and judges I encountered from 1983 until the mid- to late-1990’s seemed to have that same basic approach to the way they dealt with their colleagues. Members of the profession strived to get along and kept cases moving – all without saying, writing, or publishing disparaging comments about their fellow lawyers or the judges they appeared before. Why did we transition from experiencing civility to watching such a stark deterioration?
Something started to change during the mid-90s and the Commissioners at the time felt that it was important to address the growing lack of civility in some manner. That is when the Standards for Civility in Professional Conduct came onto the scene and hit the Roadshow. I cannot tell you what the vote was on that issue but it did make it into the Desk Book! Today you can find those standards on pages 323 and 324 in the 2023-2024 Desk Book. You will NOT find them on the Idaho Supreme Court website!
There were several endorsers of this resolution including all of the Idaho Federal and State Judges, three Inns of Court, and two Practice Sections – the Family Law Section and the Taxation, Probate & Trust Law Section. Certainly, I have seen a good amount of uncivil behavior in those two arenas, but where were the civil and criminal litigators? Did everyone practicing that work get along just fine and never try to pull out all the stops (ethical and un- ethical) to get that “win”?
The second bullet point in the resolution forewarned of the anticipated in- effectiveness of what was only billed as voluntary to begin with. How many practitioners volunteer to do anything, much less adhere to a set of principles for which they do not believe in or whose practice methods are seemingly diametrically opposed to civility?
Forty years ago there did not appear to be many practitioners in the “uncivil” category. Today I believe it is a different situation. Of course, that is based mostly on my observation and interactions, supported by the plethora of articles written about this nationwide problem. I leave it to your own experiences to evaluate the extent of the situation. Surely, no one has been untouched by it.
I suggest the Standards of Civility, standing alone, were never and will never be effective to do what their creators envisioned. Why didn’t the promoters push these standards as rules at the time? Did they think the Rules of Professional Responsibility would find a way to enforce those civility standards? Would the Attorney’s Oath we all took never let us whirl out of civil control? Did they think rules would never pass? Did anyone think to propose them as rules? Was there a push- back from a faction of the bar that could not be burdened by behaving nicely? Per- haps some of the original endorsers can provide us with those reasons now.
Since 2001, the year the Civility Standards were adopted, we have had what I would call an outbreak, make that a surge, in uncivil behavior between all practitioners in the legal profession.
Social media and the digital age have made it even easier to engage in uncivil, abrasive, abusive hostile, caustic, snarky, acrimonious, contemptuous, mordant, or pungent behavior. It is now common as opposed to rare that one sees or experiences the vehement written word, the face to face encounters with their slurs and slams in the courtroom, and the briefs and motions written with nothing but vitriol as a basis. The ease and frequency with which one can engage in this uncivil practice makes the fix even more difficult. As mentioned previously, we all did take an Attorney’s Oath. Without looking at a copy right now, what did we all swear to do? Refreshing your memories, it says, in part:
“I will abide by all the rules of professional conduct adopted by the Idaho Supreme Court.”
I’ll save the topic of which Rules of Professional Responsibility may address civility issues for another article. That done, the only conclusion that can be reached is that person has violated his or her oath. Does that violation of the oath correlate to a Professional Rule violation? I believe in many instances it does.
I have touched on many ideas and presented several questions. The final question: is there a way to further address the civility problem in the Idaho State Bar? The obvious may be adoption of the Rules for Civility in Professional Conduct. However, there may be other options such as more use of the existing Rules of Professional Conduct. Perhaps more adherence to IRPC 8.3 – the reporting of misconduct. What about more aggressive use of IRPC 5.1 – Responsibilities of Partners, Managers and Supervisory Lawyers. Finally, should judges incorporate those civility rules into their scheduling orders? Do they have the authority to do that?
If you have ideas on the best way to treat this problem, we, the commissioners, will be happy to hear from you.
I want to tell you that I am honored to represent the Third and Fifth Districts for the next three years and want you to know I will be happy to entertain any bar related questions, suggestions, criticisms or comments you may have. Please feel free to contact us at Jacksonbarcom3.email@example.com.
I’d like to leave you with the following from a presentation made by Jerry Teplitz, JD, PhD, a speaker at the Idaho State Bar Annual Meeting in Boise this July. It is used with his permission.
Watch your thoughts – they become your words.
Watch your words – they become your actions.
Watch your actions – they become your habits.
Watch your habits – they become your character.
Watch your character – it becomes you!
Judge Robert L. Jackson
Judge Robert L. Jackson practiced law in Idaho from 1983 until going on the bench as a magistrate in Payette County in August 2013. His varied practice included criminal prosecution, criminal defense, assistant city attorney, personal injury (plaintiff and defense), medical malpractice, insurance law, and workers compensation
The Idaho Supreme Court’s Making the Record (MTR) workgroup is seeking input on proposed revisions to the Idaho Court Administrative Rules and the Idaho Rules of Civil Procedure regarding court records and transcript fees. A copy of the revisions can be found on the Court’s website. Please send your comments to Deena Layne, by Tuesday, November 7, 2023.
Unlike many state bars, the Idaho State Bar cannot take positions on legislative matters, rules of court, or substantive rules governing the Bar itself at its Annual Meeting or by act of its Bar Commissioners without first submitting such matters to the membership through the Resolution Process.
The Resolution Process is set forth in Idaho Bar Commission Rule 906. Resolutions may be submitted by a District Bar Association, the Board of Commissioners, a Bar committee, or an individual member of the Bar. Resolutions submitted by a District Bar Association, the Board of Commissioners, or the Idaho Supreme Court are automatically included in the resolution process.
- 2023 Dates:
- 1st District, Coeur d’Alene Nov. 2 – noon
- 2nd District, Moscow or Lewiston Nov. 2 – 6:00 p.m.
- 3rd District, Nampa Nov. 13 – 6:00 p.m.
- 4th District, Boise Nov. 14 – Noon
- 5th District, Twin Falls Nov. 9 – 6:00 p.m.
- 6th District, Pocatello Nov. 9 – noon
- 7th District, Idaho Falls Nov. 8 – noon
Mondays in November – via teleseminar / webinar
12:30 – 1:30 p.m. (MT) / 11:30 a.m. – 12:30 p.m. (PT)
1.0 CLE Credit per Session
$45.00 per Session
Join the Idaho Law Foundation every Monday in November for the Mobile Monday CLE Series. The series provides an outlet for distinguished Idaho practitioners, jurists and other industry leaders to present an array of diverse topics. The convenience of joining from your computer, mobile device or toll-free teleconferencing allows attorneys to participate regardless of their hectic schedules or location. Still working from home? No problem – join us from your couch or your dining room table. All you need is a telephone or device and one hour to experience new ideas and continuing legal education opportunity.
*This was a successful Mobile Monday Session. If you would like to listen to any of these courses on-demand, you may purchase individual sessions by clicking on the course links below.
Monday, November 6: A Look at the Office of Administrative Hearings and What is to Come
Bryan Nickels, State of Idaho Office of Administrative Hearings – 1.0 CLE credit – NAC Approved
Monday, November 13: Say “NO” to BURNOUT – Find Professional Fulfillment without Sacrificing, Ethical Obligations, Relationships, Mental Health, and Job Performance
Fonda L. Jovick – Lake City Law Group & River’s Edge Mediation – 1.0 CLE credit
Monday, November 20: Winning Your Case with a Better Memory
Paul Mellor, Mellor Memory – 1.0 CLE credit.
Monday, November 27: St. Luke’s Defamation Case against Ammon Bundy and the People’s Rights Network
Erik F. Stidham and Jennifer Meling-Aiko Jensen, Holland & Hart – 1.0 CLE credit – NAC Approved
Your support of the Idaho Law Foundation CLE programming provides the necessary resources to fulfill the Foundation’s goal of enriching the public’s understanding of and respect for the law and legal system.
The Women’s Law Caucus is excited to announce this fantastic event! The WLC is especially excited that all speakers are alums of the University of Idaho College of Law. All will be in person except Retired Magistrate Judge Linda Cook and Idaho Supreme Court Justice Colleen Zahn, who will appear via Zoom. University of Idaho College of Law Dean Johanna Kalb will be making introductory remarks.
Each speaker will address progress made in law school, the laws, and in practice from the decade when she joined the Idaho State Bar and what still needs to be improved:
- Retired Magistrate Judge and first woman judge in Idaho Linda Cook and Family Law Attorney Anne Solomon: 1970s.
- Environmental Lawyer Cyndy Day-Wilson: 1980s.
- Magistrate Judge and former U.S. Attorney Michelle Mallard: 1990s.
- Idaho Supreme Court Justice Colleen Zahn: 2000s.
- Immigration Law Attorney Natali Magaña: 2010s.
There will be a reception after the panel for meeting the panelists and networking.
Note that this is homecoming weekend! The WLC hopes to see as many of you as possible in person and via Zoom. Thank you so much for sharing! Is there any way you could email your distribution with this information? That would be ideal. But any support for getting the word out would be amazing!
For in-person attendance, event begins at 4:30 p.m. PT in Menard, Room 104.
For Zoom attendance, please register ahead of time at https://uidaho.zoom.us/j/88506676463 (The meeting ID in the event you need it is 885 0667 6463.)
Nominations are currently being accepted for the 2023 Richard C. Fields Civility Award through Friday, October 20, 2023.
The Idaho State Bar Professionalism & Ethics Section presents the Richard C. Fields Civility Award each year in honor of Dick Fields who was consistently recognized for his service, professionalism, and leadership within the Idaho State Bar and was known in the legal community as an advocate for civility in the practice of law. Dick received the Idaho State Bar’s Distinguished Lawyer Award in 2000 and chaired the Dean’s Advisory Council at Concordia Law since its inception in 2009, until his passing in April 2014. In honor of Dick’s memory and the legacy he left for future generations of lawyers in Idaho, this award is presented to an Idaho lawyer who demonstrates a commitment to professionalism and civility in the profession.
- Nominations are accepted from anyone who knows and is familiar with the attorney. In the past, great nominations have been received from judges, legal assistants/paralegals, law clerks and community members.
- Any attorney, who primarily practices in Idaho, who demonstrates a commitment to professionalism and civility and is an example to his or her peers is eligible for a nomination. The selection committee kindly asks you to refrain from nominating an attorney posthumously or a member of the judiciary, even though both categories undisputedly have several qualified nominees.
- Nomination submission information is up to the person nominating. Nominations can be a few sentences about the person being nominated and why he or she is qualified or a formal letter. Numerous people can get together and submit a nomination “packet” for one person, or each person can submit his or her own nomination. Information about activities participated in and/or examples or conduct which you believe demonstrates a commitment to professionalism and civility are helpful to the selection committee.
Email nominations by October 20th to the Chair of the Professionalism and Ethics Section, Texie Montoya.
To view a list of previous recipients, select: Richard C. Fields Civility Award Past Recipients.