Why Can’t We Just Be Nice?
Melanie E. Baillie
Although I will admit that I like catchy titles, this article is not about being “nice.” As attorneys, we cannot always be “nice,” and we are not called to be. Rather, the topic de jour is civility – or the lack thereof. Civility is conduct that is marked by “personal courtesy and professional integrity in the fullest sense of those terms.”[i] I admit that I am a work in progress.
At the recent Annual Family Law Section conference, I raised the issue of civility with colleagues. Is the lack of civility in the profession getting worse? Everyone I have spoken with seems to feel as though incivility has increased exponentially among both clients and colleagues. In a profession where the pressures are already extreme, the marked increase in hostility, insolence, and vitriol is unsustainable to the advancement of justice.
The perception of incivility among attorneys, and the call for change is not new. In 1996, the Conference of Chief Justices (“CCJ”) adopted a resolution calling for the highest courts in every state to encourage professionalism among attorneys.[ii] Despite the long-held concerns, civility in the legal profession has not only declined, but has seemingly plummeted.
Despite the pervasiveness of the problem, many Courts and Bar Associations have rejected the notion of professional disciplinary action based on boorish and unprofessional behavior.[iii] In response to the resistance to behavior change through professional enforcement mechanisms, in 1999, the CCJ then adopted a National Action Plan on Lawyer Conduct and Professionalism. The point was to combat further the lack of civility in the profession, while also recognizing that professionalism and civility are necessarily aspirational.
Author Jayne Reardon identified the influence of traditional media and social media portrayals of attorneys as some of the causes of declining civility. These causes include inexperienced lawyers without adequate mentoring and the isolation of modern technology providing “anonymous platforms” for what Ms. Reardon terms “digital expression.” But, like all complex problems, these causes are just the start. Moreover, recognizing the cause of the problem and fixing it, are clearly two separate challenges.
Recognizing the challenges of change, the CCJ Professionalism and Competence of the Bar Committee formed a roundtable group to study the incivility problem and enforcement.[iv] How does a regulatory body discipline an attorney who engages in incivility? The short answer is, arguably, it cannot. The difficulty in finding an institutional fix was exemplified in the 2021 Georgia Court of Appeals case[v] In Re Spix. The trial court held an attorney in contempt because of unprofessional and uncivil emails.[vi] The Georgia Court of Appeals reversed, finding that summary contempt proceedings for conduct outside of the courtroom violated due process.[vii]
United States Magistrate (Idaho) Judge Larry Boyle noted, “[T]he principle of zealous advocacy is often treated as inconsistent with civility and professionalism. However, there is no inconsistency. ‘In fact, quite the contrary, advocacy which is both civil and professional is by far the most effective.’”
Idaho, like other state bars, also recognized the problem of incivility among its members. In the early part of the new millennium, the Idaho State Bar Professionalism and Ethics Section crafted the Standards for Civility in Professional Conduct.[viii] These standards were put before the Bar membership who resoundingly adopted them. Some 77% of the Bar membership voted to approve these standards. The U.S. District Court for the District of Idaho went one step further and incorporated the Standards into Local Civil Rule 83.8. Notwithstanding these efforts, the Idaho Standards for Civility in Professional Conduct are aspirational, and a violation of the Standards is really not sanctionable. Even the Federal Local Rule 83.8 lacks any real teeth.
The continued increase of uncivil behavior and professionalism among attorneys begs the question, “Why can’t we just be nice?” Sanctionable or not, incivility and gratuitous rancor is unnecessary and is counterproductive. Perhaps then, the more apt question is, “What can we, as attorneys and masters of our own conduct, do about the problem?”
As I was conducting research to write this article on civility in our profession, I began to think about and examine my own conduct that has, at times, been particularly uncivil. It is convenient to hide behind the cloak of “zealous advocacy” in order to justify boorish and uncivil behavior. However, we lose our effectiveness as an advocate when we lose our cool. “We can be passionate without being poisonous.”
Experts grappling with civility and professionalism in the law have found some key ingredients to help advance the standard of civility. Civility and professionalism cannot be legislated; it must be learned – and it takes practice. It also takes cultivating an ethos of civility by law firm partners, Bar leadership, and the Courts. Civility is good for you and for your client. Where then, do we begin?
Connecting with colleagues in professional and personal ways has a profound impact on our ability to be civil when we are on opposing sides. A plethora of research has shown that human connection is a basic human need and critical to emotional maturity and functioning.[ix] Recent research shows that COVID-19, and its disruption to human connections, “stands to threaten all layers of Maslow’s Hierarchy […] with deleterious consequences on our mental health.”[x]
Abraham Maslow pointed to a hierarchy of human needs comprised of five “levels” or categories. According to Maslow’s theory, an individual’s behavior is motivated by the innate desire to fulfill each of these needs. Third in the hierarchy, after physiological needs and security, are “social needs.” That is, the need for friendships, relationships, involvement in organizations, and engaging in group activities. In a word: connection. A landmark study published in the journal Science found an increased risk of death among individuals who lacked human connections.[xi]
It follows that when we connect with our opponents on a personal level, they become more human. It may seem “old school,” but it is critical that we communicate professionally in person or by telephone whenever possible. There is a reason that the discovery rules require parties to meet and confer. When we connect directly with an adversary, we can no longer hide behind the keyboard with a pithy email or text message. Emails and text messaging do not convey intonation, can be misconstrued, and are an easy shield for rudeness and incivility. We are far more likely to resolve issues with less conflict, stress, agitation, and frustration by simply communicating on a personal level.
Another important way to connect is to attend seminars, CLEs, Inns of Court, bar lunches, and other activities with our colleagues and adversaries. This allows us an opportunity to see them in a different context. They are no longer the obstructing force in our client’s way or the source of our heartburn. They become human, and so do we. When you become human with your adversary and connect with them, something magical happens. You begin to empathize. It becomes more difficult to be rude and obstreperous once you build networks and, in some cases, friendships.
Finally, do not underestimate the need to connect with friends and family. What does this have to do with civility in your profession? Well, these connections will give you the strength and resolve you need to be civil in your law practice. Being present and enjoying the company of people you choose to be with increases your wellbeing. When we feel better, we act better. Our ability to grant opposing counsel some grace, or disengage in unproductive bickering, increases as we foster our personal relationships.
It seems almost cliché to suggest that being kind will help you be more civil. However, the truth is, kindness is a component of civility. Forcing yourself to be kind when you do not feel charitable is a real art. It takes practice. Sometimes we fail and have to start over. Granting and receiving the grace to “start over” and be kinder to the individuals with whom you deal is a gift. Do not squander it, but also do not be afraid to take the opportunity to continue practicing kindness. It seems so simple, and yet, it can be so difficult. When kindness is present, it is extremely difficult to be rancorous.
When you are upset and type out an angry email, hold on to that communication until your frustration and anger have subsided. Waiting a day or two could mean the difference between saying something you will later regret and resolving the issue at hand. Being kind and professional is not synonymous with being weak. You do not have to be best friends with opposing counsel. However, holding steadfast to the principle that you will treat others with kindness, will likely earn you the same in return.
Another component of genuine kindness in the context of professionalism is offering an apology when appropriate. This can be a tough one for attorneys. However, an apology does not show weakness nor is it tantamount to an admission against the client or attorney’s interests. If you have stumbled in your attempt to be kind and professional, an appropriate apology will usually go a long way and hurts nothing. An earnest apology (which is not an admission), is a valiant display of emotional maturity. You will garner more admiration and respect from clients and opposing counsel when you can take a bite of humble pie.
In addition to being earnest and avoiding superfluous arguments, you can exhibit other small kindnesses in your practice. For example, providing an extension to opposing counsel when asked, accommodating opposing counsel’s schedule, and treating all individuals with basic dignity and respect. Instead of assuming the worst, provide the benefit of the doubt. Genuinely attempt to work out discovery issues, and avoid self-righteousness. All of these examples are opportunities to practice kindness.
Finally, avoid the opportunity to make arguments and point out errors solely to embarrass opposing counsel or humiliate an opposing party. This tactic will come back to bite you. Not one attorney practicing law today has escaped making an error. Embarrassing and demeaning opposing counsel or an opposing party may be a good show for your client, but it will only ratchet up the rancor. The Judge will be unimpressed. Of course, if action is required for the best interests of your client, you must take that action. Impertinence, however, is unnecessary. Remember, you reap what you sow.
Let’s face it; everyone knows a good lawyer joke or two. Somewhere along the line, attorneys gained a reputation for being slimy, bombastic, cheating, lying thieves. Notwithstanding attorneys’ undeserved reputation, I consider most attorneys to be people of integrity. However, and much to my chagrin, even my integrity has been challenged more than once. Likewise, you may find yourself subjected to the general attorney misperception at some point in your career. When this occurs, reject the notion, as it should always be undeserved.
Do not compromise your integrity for anyone. At the end of the day, all you have is your reputation and the foundation of your reputation is your integrity. It can be difficult to own your mistakes, admit unfavorable facts, disclose unhelpful witnesses, and stand by your word. Do it anyway.
If your primary mission is to win at all costs, then you should consider reexamining your priorities. Review the Rules of Professional Conduct and stay within the lines. When you consistently model integrity in your dealings, you are more likely to win the respect of the Court, clients, and colleagues. You will certainly respect yourself more. I came across a quote published in the Journal of the Association of Business Trial Lawyers that is particularly apt:
Lawyers sell their skills, their seasoned judgment, their advice. They sell their ability to reason, to engage in rational discourse, to present analytically sound arguments. They also sell their reputations and their credibility with the court. To the extent those commodities are squandered by selling their soul to one client, they are less valuable to the next client. Once sullied, reputation and credibility cannot easily be recaptured.[xii]
Keep Friedman’s principle in mind. Guard your integrity as if it were gold.
Be Prepared and Knowledgeable About Your Case and the Law
Be prepared and know the law. It seems simple, doesn’t it? Follow this basic rule, and you will not only appear more competent, you will be. Lawyers who consistently focus on the facts and law of their case rarely find themselves embroiled in personal attacks. Focusing on the case does not mean focusing on the shortcomings of your opponent or proudly exposing the salacious details of a party.
Preparing your case properly requires a thorough understanding of the facts of each case. Do not assume you have heard your client’s story before. A myth about domestic relations cases is that the law rarely changes. While there are generally radical changes to any body of law, new cases do emerge. The rules are frequently modified. If you spend your time staying abreast of changes in the law, you will have less time to concern yourself with petty bickering.
Another important note about being prepared and knowing the law is to avoid spending your time trying to “get away” with whatever you can. If I had a dollar for every attorney who thought they were clever in obstructing discovery, I would be wealthy. If you cannot win a case on its merits, then work to settle it. A good attorney knows when there is no case to build or defend.
Good advocacy is not synonymous with parlor tricks. Taking pot shots at the opposing party, or opposing counsel, whether in oral argument or briefing, is not helpful. Gamesmanship does not win points with any Judge. Playing shell games does not make you look more brilliant than you are. What an attorney really reveals when he or she cannot play fair is that they are not prepared. Manage your time and your client load. Fiercely advocate for your clients based on the merits of the case and your creative thinking.
Clients depend on us to handle sensitive, sometimes life altering legal issues. Such high stakes and heavy responsibility often lead to intense and prolonged stress. Stress takes its toll on civility. Paradoxically, not only do you suffer, but the clients you work so hard to help suffer too. You cannot be an effective advocate while in constant, unrelenting angst. Moreover, when you do not take the time to rest and regroup, you have less emotional capacity to behave in a civil manner. A constant level of stress and pressure over time can turn even the nicest person into a beast. Thus, it is imperative to find a way to manage your stress.
Most attorneys are overachievers, perfectionists, stubborn, and tough. Really tough. You have to be tough in this business. Many in the legal profession chose this career path out of a genuine desire to help people – to champion the cause of “justice.” Often, however, lawyers end up feeling used up and burnt out. Mental health and substance abuse issues are alarmingly high in the legal profession.
Recently, a colleague passed away after an extended illness. A mutual colleague commented on social media, “This business is killing us!” That comment deeply disturbed me, but also deeply resonated. A large-scale study published in the Journal of Addiction Medicine in 2016, looked at the rates of substance use and mental health problems among attorneys in the U.S. It’s not surprising that the study found “substantial rates of behavioral health problems” including “hazardous, harmful, and potentially alcohol-dependent drinking” and significant levels of depression, anxiety, and stress. Sixty-one percent of the lawyers reported anxiety and 45.7% reported depression over the course of their careers.[xiii]
A 2017 survey conducted by the American Bar Association’s National Task Force on Lawyer Well-Being found that 28% of practicing lawyers suffered from depression, 19% had severe anxiety, and 11.4 % had suicidal thoughts in the previous year. In addition, a study conducted by the Harvard Business Review in 2018, found that the practice of law was among the loneliest professions.[xiv]
Attorneys were also significantly more likely to report suicidal thoughts compared with the general working population.[xv] Although actual suicide rates among attorneys appear to vary by region, gender, and age, attorneys are at significantly higher risk of suicide than the general population.
Some critics have challenged the premise that attorneys suffer from comparatively higher rates of mental illness than the regular population.[xvi] Regardless, the available data regarding the hazards to the psychological well-being of lawyers is disconcerting.
We need to ask ourselves then, “What role does the lack of civility among legal professionals play?” Will greater civility reduce the risks of mental health and substance abuse disorders among lawyers? That may be a chicken and egg question that I certainly am not qualified to answer empirically. However, it seems clear that taking care of our personal needs is paramount to becoming the best version of our professional selves.
Part of being the best professional you can be is elevating yourself to a higher level of professional behavior. It follows then, that when we give ourselves the necessary respite, we are more likely to be consistently civil in our professional dealings.[xvii] In so doing, we are also better attorneys for our clients. Incivility in the practice of law increases the costs of litigation and delays proceedings.[xviii]
With the interest of your clients and the legal profession in mind, make time to do the things you love. Be with the people you care about and engage in those activities that bring you simple joy. Easier said than done? Yes. Nevertheless, you and your profession require it. If you do not make time for the things you love to do, no one will make time for you. Engaging in activities that we enjoy increases our feel-good chemicals, decreases incessant thoughts about work, and gives us time to unplug and relax. This in turn increases our ability to tackle high conflict professional situations. Caring for yourself goes hand in hand with setting your boundaries.
Part of the responsibility of taking care of yourself also means getting help if needed. There remains a significant stigma surrounding substance abuse and mental health treatment. The 2017 ABA task force report found that between 40% and 70% of disciplinary proceedings and malpractice claims against attorneys involve substance abuse, mental health, or both.[xix] Lawyers are reluctant to disclose these needs.
All state bars have developed lawyer assistance programs. Lawyers can seek confidential assistance without the fear of reprisal. The assistance is confidential. If you or someone you know needs help, the Lawyer Assistance Program is there. The ABA has a complete directory of lawyer assistance programs by state. The website address is at the end of this article.[xx] The Idaho State Bar’s Lawyer Assistance Program is located on the Bar’s website at: https://isb.idaho.gov/member-services/programs-resources/lap/
Setting boundaries to protect your well-being and mental health is important. While working from home during the pandemic, I broke my own cardinal rule on boundaries. I provided clients with my personal cell phone number. Different people have different philosophies about whether or not to give a personal cell phone number to a client or opposing counsel. I am firmly in the camp of no personal cell phone number for a client. Why? I am not good at boundaries. Recently, I was lamenting and feeling overwhelmed as I had a client in crisis who was texting me on my personal cell phone. By breaking my own boundary, I put myself in a situation that took a toll on my well-being. While it is important to set boundaries, it is just as important to keep those boundaries.
Likewise, it is important to set boundaries on how to deal with colleagues, adversaries, and clients. When the animosity begins to escalate, it can help to deescalate the situation by assertively making your point and ending the interaction. Bullying, intimidation, insults, or harassment are inappropriate and the one engaging in these behaviors needs to be told so. However, if the person remains unreasonable, then disengage completely from the process.
When you fail to set your own boundaries, you will find yourself often embroiled in conflict and acting in unprofessional ways.
Being Part of the Solution
I have always lived by the rule that “if you are not part of the solution, you are part of the problem.” I have no idea who coined that phrase, but it is up to us, as members of the Bar, to be part of the solution. Connecting with colleagues, caring for yourself, managing your practice effectively, being prepared, and focusing on the law are all ways to be part of the solution. Give it a try. Begin by reading the Idaho Standards for Civility in Professional Conduct. Create an action plan for yourself to treat all counsel, parties, and witnesses in a civil and courteous manner – and employ it. We are engaged in a noble profession and acting within the bounds of civility will make you a better, more efficient, and more focused attorney. We can all be nice or, at least, civil.
[i] Standards For Civility in Prof’l Conduct for The Idaho State Bar, United States District Court, District of Idaho and The Courts of the State of Idaho, Adopted by the Courts and by the Idaho State Bar, 2001.
[ii] Aaron Bayer, Tougher Measures for a Continued lack of Civility, Nat’l L. J., October 27, 2014.
[iv] Resolution 1, Commending to the conference of Chief Justices the American Civil Trial Bar Roundtable Policy Paper on Increasing the Professionalism of American Lawyers, Conference of Chief Justices, Adopted January 28, 2015.
[v] In Re Spix, 358 Ga. App. 119 (Ga. Ct. App. 2021).
[viii] Standards For Civility in Prof’l Conduct for The Idaho State Bar.
[ix] A.H. Maslow, A Theory of Human Motivation, Psychological Review (1943).
[x] Sarah L. Hagerty & Leanne M. Williams, The Impact of COVID-19 on Mental Health: The Interactive Roles of Brain Biotypes and Human Connection, 5 Brain, Behavior & Immunity – Health (May 2020).
[xi] James House, et al., Social Relationships and Health, 14 Journal of Science 293 (July 29, 1988).
[xii] Chaplin, Michael, A call for Civility in the Law: But Is the Right Person Listening?, Association of Business Trial Lawyers Journal, Vol XXX No. 1, Fall, 2007, quoting Paul L. Friedman, Fostering Civility: A Professional Obligation, Remarks to the American Bar Association Section of Public Contract Law (1998).
[xiii] Patrick R. Krill et al., The Prevalence of Substance Use and Other Mental Health Concerns Among American Attorneys, 10 J. Addiction Med. 46 (2016).
[xiv] Shawn Achor, et al., America’s Loneliest Workers, According to Research, Harv. Bus. Rev. (Mar. 19, 2018), https://hbr.org/2018/03/americas-loneliest-workers-according-to-research.
[xv] Matthew S. Thiese, et al., Depressive Symptoms and Suicidal Ideation Among Lawyers and Other Professionals, 63 J. Occup. & Env. Med. 381-386 (May 2021).
[xvi] Weiss, Debra Cassens, Conventional Wisdom is Wrong about Lawyers’ comparative Mental Health, But Comparative Drinking Rate is ‘Extraordinary,’ Study Says, ABA Journal, (Feb. 22, 2022).
[xvii] This is my opinion based on my experience in my professional life. I am not so outside the bell curve of a normal attorney that my experience varies greatly from my colleagues. It is common sense and the benefit of hard-learned wisdom that makes it clear to me we cannot be professional and civil to others if we ourselves are miserable. Feel free to draw your own conclusion.
[xviii] “[C]ivility is the responsibility of every lawyer, judge, and litigant in the federal system. While lawyers have an obligation to represent clients zealously, incivility to counsel, adverse parties, or other participants in the legal process undermines the administration of justice and diminishes respect for both the legal process and our system of justice…” U.S. Dist. Ct. Idaho, L.R. 83.8, Fairness and Civility.
[xix] New Study on Lawyer Well-Being Reveals Serious Concerns for Legal Profession, ABA Journal, (Dec. 2017), https://www.americanbar.org/news/abanews/publications/youraba/2017/december-2017/secrecy-and-fear-of-stigma-among-the-barriers-to-lawyer-well-bei/.
[xx] ABA Directory of Lawyer Assistance Programs by state: www.americanbar.org/groups/lawyer_assistance/resources/lap_programs_by_state/.
Melanie E. Baillie is a partner at James, Vernon & Weeks, P.A. Ms. Baillie is the Chair of the Family Law Section of the Idaho State Bar.