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This week’s topic focuses on civility: The Profession’s Call for Civility. “Got a Problem with it?” As Robert Josefsbergpoints out in his article of the same name, civility is a component of professionalism (including civility, ethics, being well prepared, and pro bono work).

But why is civility important? Why is there a focus on civility when looking at the broader topic of professionalism?

Every member of a profession gets evaluated at some level by his peers and clients. A person’s “level of preparedness” is measured in an objective fashion. Either you can perform the work required or you can’t. You are either “good at what you do” or you are not. Work product tends to be easy to hold up to a yard stick. Ethics is on the other end of the spectrum. While ethical norms are base-lined by the profession, ethics is generally an internal metric. Many “ethical” problems are subjective in nature and hard to quantify. Surely, gross deviations from the established norms are easy to point out as being “unethical”, but what about the vast expanse of “gray” that lies between the black and white? Civility on the other hand, is the component of professionalism that is most often at the forefront when a person is characterized as being professional or not. How a member of the bar interacts with other people plays the largest role in whether they are perceived as professional. Mr. Josefsberg correctly points out that the traits are linked, but I would contend that the trait of civility carries more “perceptual weight” than ethics or competence. Civility is the touch point – it is often the first, and most lasting impression. People care about how they are treated. Treat me well and I can place less weight on your areas of less competence. Mistreat me and I will label you as “unprofessional” even if you “did everything right.”

So why do we have this perception that the legal profession is one suffering from a decline in civility? Kara Anne Nagorney, in her article A Nobel Profession? A Discussion of Civility Among Lawyers, presents the view that this decline in civiltiy among lawyers comes from many influences. Ms. Nagorney cites a nation-wide trend of incivility, to which the legal profession is not immune. She also looks at other factors such as the transformation of legal practice from profession to business, the increase of diversity among the members of the bar, the misuse of legal procedure, judicial tolerance, and a distortion of the legal profession by the media. Following the trend of the articles we have been reading, Ms. Nagorney advocates an increase in mentoring, enforcement of civility codes, and the establishment of professionalism curriculum in law schools.

My first reaction is to be cynical. To be blunt… civility means, “don’t be an ass.” From my point of view, whether a person acts with civility is largely impacted by their personality. The personality that they entered law school with is, largely, the personality with which they leave law school. Very few people change drastically in a three to four year period. Some may even say that they became the person they will be “in kindergarten.” Viewing examples of incivility one is left with an impression that the “jerk lawyer” was probably a jerk before becoming a lawyer, and will continue to be a jerk long after the tape stopped rolling. Now, I say that that was my first reaction because I don’t think that we should just toss up our hands and give up.

Much as it is a parent’s responsibility to properly guide his children in their formation into adulthood, so too I believe that it is an important function of the legal profession to continually impress upon it’s membership to strive for better: in job skills, in ethics, and in civility. So, while I believe that incivility is a problem rooted deeply in a person’s personality, I also believe that it is imperative upon the profession to make it clear that that type of behavior will not be tolerated. I am not advocating that the responsibility for these matters should be abdicated to some sort of “civility police”, but rather, I feel that it is incumbent upon each member of the profession, individually and collectively, to foster civil behavior, and to not shy away from calling someone out on their un-civil behavior.

Earlier this year I had the privilege of hearing Mr. Robert Josephsberg and Professor H. T. Smith speak on the topic of civility. These two attorneys are legends in the South Florida legal community not only for their legal acumen but also for their professionalism and their civility. Mr. Josephsberg and Professor Smith are true gentlemen.  They are attorneys to watch and emulate. I enjoyed hearing them speak and especially the recounting of their various anecdotes. What stood out from their message was that you can be a “tough” lawyer and passionately pursue your client’s interests while still being civil. I especially noted that both Mr. Josephsberg and Professor Smith made a distinction between the opposing counsel and your client’s legal adversary.

The dispute is between the parties… not between the lawyers.

It was impressed upon me that you need to act with civility and professional conduct even if your supervising attorney or partners in the firm you work for do not.  I also appreciated the distinction between mentoring in other professions and what they recommended in the legal profession. For example, in my current profession, a mentor would guide me in what to “do”. They suggested that in my transition to the legal profession I find a mentor to guide me in how to “be”. “Find someone that is the type of lawyer you want to become,” they said. It was an inspiring discussion and these two gentlemen re-affirmed my decision to enter the legal profession.

Find someone that is the type of lawyer you want to become.

What do you think?