Civility in the Profession: Is it Gone Forever?

October 31, 2023 by ccarns

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 Jacksonbarcom3.5@gmail.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!