Dealing with incivility from senior counsel

Last month, I spent a terrific weekend in Collingwood, Ont., at the bi-annual Fall Forum run by The Advocates’ Society for litigators up to 12 years of practice.

Justice Stephen Goudge of the Court of Appeal for Ontario gave a thought-provoking (and witty!) keynote address on civility in the profession. At one point, he queried whether it was really young advocates that needed a talk about civility, or their more senior counterparts. The enthusiastic applause from the audience reflected a question that came up in several ways over the two-day conference: as junior counsel, how can we best deal with incivility from other, probably more senior, counsel?

Professional civility has been a hot topic in legal circles lately as a result of the Law Society of Upper Canada decision in LSUC v. Groia, where the panel held that Joseph Groia had failed to be courteous, civil, and act in good faith towards an Ontario Securities Commission prosecutor. Throughout my legal education, the importance of civility within the profession loomed large. It was required learning in law school, on the bar exams, in the mandatory online professional responsibility course, and now in continuing legal education.

I was “raised” to assume that civility and co-operation with opposing parties is the norm. I’ve already learned that’s not always true. Recently, a colleague of mine had her integrity questioned when she refused to ignore material changes that opposing senior counsel had made to a final draft of an agreement, without notice. When my colleague told him she needed to get instructions on these changes, he cautioned her as a “new lawyer” about “pulling this kind of stunt.” This was only one in a string of discourteous exchanges.

So why does incivility happen, and what can junior lawyers do about it?

For starters, we can develop a thick skin. Law is a tough business, and we’re all bound from time to time to encounter counsel who is grumpy, disagreeable, arrogant, or unco-operative. Some may even be aggressive or confrontational. The “why” of these situations is simple — all kinds of people choose to be lawyers. It’s possible to have these traits and not be “uncivil,” just not particularly pleasant to work with.

Incivility looks like name-calling, unfounded accusations, obstructionist tactics, empty threats, and the like. For a glaring example of incivility from a senior counsel to a junior counsel, the 2009 Law Society of Upper Canada decision in LSUC v. Tulk is worth a read. After finding that Andrew Tulk called a junior lawyer “stupid” and used profanity towards her, the panel noted, “Mr. Tulk’s statements are not conduct expected of a senior member of the bar when dealing with a junior member of the bar and are not acceptable by a lawyer at any time.”

Some counsel simply run their practices in a “kill or be killed” fashion, and have done so for a long time. Some may be insecure or unprepared in a particular case, and reason that intimidation boosts their position relative to a junior lawyer. Some lawyers would even argue that intimidating and aggressive conduct is a legitimate tactic in the arsenal of the “zealous” advocate.

Groia, for instance, suggested that the duty of civility can compromise a lawyer’s duty to defend a client vigorously and zealously in criminal proceedings. This assertion was specifically rejected by the panel. Other times, perfectly reasonable lawyers just get caught up in a client’s plight and over-identify with the client, causing them to lose objectivity and reason.

The mentors at Fall Forum, including lawyers and judges from across Ontario, had some helpful strategies for dealing with incivility:
Stand your ground: Even when you feel intimidated or bullied, refuse to let the offender make you question yourself. Recognize the bullying for what it is — a tactic designed to throw you off your game. Don’t give the bully that power.

Shake it off: Consider whether feeding into the incivility will simply boost the offender’s confidence.  Re-direct the conversation back to the merits of the case.

Pick your battles: Is this a case of incivility so egregious that it needs to be addressed, or can you ignore the comment and move on?

Let senior counsel handle it: If you are being supervised by a senior lawyer on a file, and are dealing with hostile opposing counsel, ask your supervisor to step in. There’s no shame in that and, in my experience, it often gets more permanent results.

Recently, the Supreme Court of Canada in Doré v. Barreau du Québec reminded us that lawyers, even when unfairly provoked, are “called upon to behave with transcendent civility.” In other words, no matter what, do not stoop to a bully’s level.

A reputation for integrity is invaluable in this business. As the saying goes, and as quoted by Justice Goudge: “Never argue with an idiot; they’ll drag you down to their level, and beat you with experience.”

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