The relationship between civil or courteous dealings and good advocacy has long been recognised. However, a perceived decline in standards of civil behaviour between lawyers and their clients, opponents, the Courts, and the public, is a recurring issue.
The topic has been addressed by Judges of the Supreme Court of Queensland and other jurisdictions.1 His Honour Justice Edelman has said:
“It is necessary to make one final concluding comment on the manner in which this litigation continues to be prosecuted and defended. My comment concerns the importance of civility in the conduct of litigation. Modern litigation is far removed from the procedure and practices that were subjects of daily discussion between those counsel and judges sitting on the Benches of the Inns of Court and at the bar messes in the 19th century. The need for civility, from all participants in the legal process, is often forgotten today.”2
This is a reminder that, while the nature of legal practice might change with the times, some things remain the same; and the importance of civility is one of them.
Various reasons for a perceived decline in standards have been advanced. One has been a shift in social norms. For example, in America, it has been said:
“Today our talk is coarse and rude, our entertainment is vulgar and violent, our music is hard and loud, our institutions are weakened, our values are superficial, egoism has replaced altruism and cynicism pervades. Amid these surroundings none should be surprised that the courtroom is less tranquil. Cardozo reminds us that judges are never free from the feelings of the times.”3
The rise of different and modern communication methods is another reason that has been advanced. Justice Philip McMurdo has said:
“One contributor has been technology. The medium of email is a particularly dangerous form of communication, because it permits the author, in the apparent security of his or her office, to type and send a message more quickly than its potential consequences can be considered. And email may prove not to be the worse medium, because for much the same reason, the use of social media could prove yet more dangerous.”4
Still other reasons have been suggested. One is the increasing volume and complexity of the law that lawyers are required to know. Another is the numbers of lawyers now practising.
This may have a dual impact on how lawyers interact, first by reducing their capacity to have direct personal knowledge of one another; and secondly, by increasing competition between them for work.
Some may reasonably point out that the concept of “civility” is subjective. Perhaps for this reason, what constitutes civility has been the subject of discussion. For example, Chief Justice Spigelman KC AC has said:
“… The core element of civility is the manifestation of respect for other persons. In the Western tradition, civility has long been accepted as a public virtue manifest in signs of respect to strangers in language, etiquette and in tempering the assertion of self-interest … .”5
Chief Justice Allsop KC AO has recently said:
“To maintain the public’s trust and confidence in our positions, which hold power and privilege, our actions must be in keeping with our words. … .”6
Hence, the “core element” of civility is showing, through words and conduct, respect for other people. Further, while the requirement for civility in Court is a vital part of good practice, it also extends to the full range of our discourse.
It may also be seen from the above that the overarching reason for civility is simple, yet fundamentally important: it is to maintain the public’s trust and confidence in the lawyer’s role, which brings power and privilege. The power and the privilege are the knowledge of the law, combined with the right of appearance in Court, to achieve legal outcomes that can have very serious consequences. Lawyers are important actors in the exercise of legal power, which is a power that parties to cases, and the public generally, may view with some trepidation.
A legitimate question arises over whether there is a conflict between civility and the lawyer’s role to robustly advance a client’s case where needed. The adversarial context of litigation is a unique feature of legal practice. Lawyers are regularly called upon to perform in highly pressurised cases involving serious consequences for clients who are entrenched in disputes with deep levels of emotion.
The fact is that it is necessary for lawyers to find the balance between maintaining civil and courteous dealings and advancing cases. It is an often difficult and challenging context, but similar pressures are encountered by professionals in other areas. Moreover, making sense of sometimes arguable and complex concepts is something lawyers do regularly.
As Justice Philip McMurdo has said:
“… the term civility is no more problematical in its application than, say, negligence or unconscionability.”7
That is, there is no necessary friction between the obligations of civility and the purpose of advancing clients’ interests. Properly understood, courtesy serves that purpose. It has been said that:
“A lawyer can be firm and tough-minded while being unfailingly courteous. Indeed, there is a real power that comes from maintaining one’s dignity in the face of a tantrum, from returning courtesy for rudeness, from treating people respectfully who do not deserve respect, and from refusing to respond in kind to personal insult.”8
What amounts to discourtesy will be clear to most, and a full exploration of all its forms is not possible here. However, a seemingly current issue is the personalisation of correspondence. Direct personal criticism of an opponent in terms of their competence, experience, education, or place of employment is inappropriate. Threats of personal costs orders or the making of disciplinary complaints for unethical conduct is also inappropriate if done without a proper basis.
Another increasingly common form of discourtesy seems to be the making of negative assumptions or casting negative aspersions about an opponent’s conduct where there is room for doubt. That is, their conduct may instead be reasonably explained by a genuine error or circumstances beyond their control. Courtesy requires the giving of a reasonable opportunity to explain before making allegations of misconduct.
In cases where the so-called “line” between courteous and discourteous conduct is less clear, what can be used as a guiding “principle”? Accepting the relationship between courteous dealings and maintaining public trust and confidence in the legal system, it may be that principles of honesty and fairness are not confined to what lawyers think is honest or fair (or “normal”), but what the public is entitled to expect in the provision of legal services. A useful observation is also made by Justice Henry on this topic:
“… When ego driven, aggressive correspondence sees the light of day in court, it is an irritating distraction from a proper understanding of the merit of its author’s client’s cause.”9
The above refers to correspondence seeing “the light of day in court”. Some may be aware of this touchstone for the appropriateness of correspondence; that is, would the author have any concerns if the correspondence about to be sent “sees the light of day in Court”? The same test could be usefully adapted to any form of professional conduct.
How does maintaining civility accord with the task of being a good advocate?
First, the disapproval that flows from discourteous behaviour undermines the advocate’s personal reputation. A strong personal reputation is critical to good advocacy. Perhaps this is because a central aim is to be persuasive, and a key to being persuasive is to be reliable. Reliability partly depends upon reputation. Poor behaviour tends to become notorious, which has the potential to lower the opinions of others about the individual advocate, and the profession generally. It has been judicially observed that:
“Those members of the legal profession who seek to win a momentary advantage for their clients without observing the proper courtesies invite correction by the court and disapproval of their colleagues … To the extent that solicitors act in this way, they run the risk of destroying the confidence and mutual respect which generally distinguishes dealings between members of the legal profession from other dealings in the community.”10
This disapproval also has the potential to rob a practitioner of the feelings of enjoyment and self-worth that otherwise might come from legal practice. Conversely, approval has the potential to enhance these feelings, and the bolstering of the advocate’s personal reputation creates more opportunities for success as an advocate.
“… civility, which incorporates respect, courtesy, politeness, graciousness, and basic good manners, is an essential part of effective advocacy. Professionalism’s main building block is civility and it sets the truly accomplished lawyer apart from the ordinary lawyer.”1
Second, civility is reflected in ethical rules governing the practice of law.12 Numerous cases over time show that failing to meet the requirements of civil practice may breach ethical rules. Such cases are too numerous to mention here.13
Third, courteous practice contributes to the efficiency of the legal system, as is recognised in legal commentary.14 Many will have experienced how discourteous behaviour can have a direct impact on the time and cost needed to conduct a matter, by increasing the magnitude of correspondence and interlocutory applications, and decreasing the willingness of parties to make appropriate concessions.
Fourth, courtesy enhances an advocate’s potential to assist the Court. Discourtesy increases the potential for lawyers, and their clients, to receive criticism and reciprocal aggression from others. This creates additional stress and anxiety. Undue stress and anxiety is obstructive to smooth performance as an advocate, and increases the likelihood of errors, which in turn potentially attracts more criticism. Performing the role can be stressful enough, so it makes sense to avoid any additional causes.
Fifth, civility is conducive to being persuasive. Incivility in all its forms is grounded in emotion, and not logic or reason. It is a distraction from the display of logic and reason that are another key to persuasion. This has been long recognised in cases and commentary.15
The distraction from logic and reason that emotion causes has been said to lead to the loss of objectivity that good advocacy requires:
“Resort to personal abuse leads to a loss of the objectivity that is necessary for proper legal representation, and results in distraction from the real issues in the client’s dispute.”16
Sixth, courteous communications assist in resolving, or at least narrowing, disputes. An understanding of the pa mutual positions is promoted by constructive dialogue, which is best cultivated by civil communications rather than aggressive attacks, which escalate disputes and entrench defensive positions.
Finally, avoiding unduly combative communications can help to achieve better outcomes for clients. A recent case of the Supreme Court of Queensland is illustrative.17
Chris George is a Brisbane barrister at North Quarter Lane Chambers.
Footnotes
1 Justice Henry, Ethical Issues in Correspondence Between Solicitors, address to the FNQLA, 2012; Justice Philip McMurdo, Civility and Professional Courtesy, QLS Symposium, 2014.
2 Mineralogy Pty Ltd v Sino Iron Pty Ltd (No 4) [2014] WASC 282 at [59].
3 Justice M Bolan, Issues of Civility in the Courtroom: The Role of the Trial Judge, 2001, cited in Justice JW Quinn, A Judge’s View: Things lawyers do that annoy judges; things that they do that impress judges,Family Law Institute, Toronto, 2012.
4 Justice Philip McMurdo, QLS Symposium, 2014.
5 Chief Justice Spigelman KC AC, Opening of the Law Term Dinner, Law Society of NSW, 2006.
6 Chief Justice Allsop KC AO, The Culture of the Legal Profession: Lessons of the Past and Hope for the Future, QLS Symposium, 2022.
7 Justice Philip McMurdo, QLS Symposium, 2014.
8 Justice M Durant, “Views from the Bench: Civility and Advocacy”, (2001) Utah Bar J 35.
9 Justice Henry, “Ethical Issues in Correspondence between Solicitors”, address to the FNQLA, 2012.
10 Garrard v Email Furniture Pty Ltd (1993) 32 NSWLR 662 at 667 per Kirby ACJ.
11 Butts v State 546 S.E.2d 472 (Ga.2001) per Benham CJ, Supreme Court of Georgia, USA cited in Civility and Professionalism – Standards of Courtesy, Office of the NSW Legal Services Commissioner, p 18.
12 For example, Barristers’ Conduct Rules, rr 5(b), 6, 10, 12; Australian Solicitors’ Conduct Rules, rr 4, 5, 32, 34.
13 See for example the cases discussed in The Australian Solicitors Conduct Rules 2012 in Practice: A Commentary for Australian Legal Practitioners, QLS, pp 8 – 9; Corones & Ors, Professional Responsibility and Legal Ethics in Queensland, 2nd ed at [5.150 – 5.175].
14 A Harris, The Professionalism Crisis – The ‘Z’ Words and Other Rambo Tactics: The Conference of Chief Justices Solution,53 SCL Rev 549, pp 577-578 cited in Civility and Professionalism – Standards of Courtesy, Office of the NSW Legal Services Commissioner.
15 Beevis v Dawson [1957] 1 QB 195 at 201 cited in Glissan & Tilmouth, Advocacy in Practice 3rd ed at p 218.
16 Legal Profession Complaints Committee v In de Braekt [2011] WASAT 1 at [139].
17 In the will of Fay Daphne Butterworth [2022] QSC 212.
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