For legal professionals, dealing with complex and abstract concepts is all simply part of the job; however, it seems that some are quick to forget one important lesson from their days in kindergarten — treat others as you would like to be treated.
'It’s hard to identify if truly there has been a loss of civility' in the legal profession, said Peter Cronyn, leader of the litigation group at Nelligan O’Brien Payne LLP, 'but as soon as people are talking about it then that’s the time to do something about it — whether it’s real or it’s perceived is almost irrelevant.'
Well, people are not only talking about it, according to The Law Society of Upper Canada (LSUC), the problem is real.
Between 2004 and 2008, statistics provided by the LSUC indicate that regulatory cases containing allegations of unprofessional behaviour by legal professionals rose steadily from 11 per cent to nearly 35 per cent and, said Derry Millar, treasurer of the LSUC, the problem is province-wide.
This alarming statistic was one motivator behind the recent civility forums hosted by Millar. Eleven meetings were held throughout Ontario — from Windsor, Ont. to Ottawa, Thunder Bay, Ont. to Hamilton — beginning last November, and wrapping up in Toronto on Feb. 16. Nearly 900 lawyers, paralegal, articling students and members of the judiciary were brought together for facilitated discussions about civility issues, including examples of incidences between lawyers and paralegals, lawyers and paralegals towards each other, their clients and even in the courtroom.
'One of my objectives was to promote a dialogue with the profession on the importance of civility and to get their ideas about what the society could do, what we can all do, to promote civility and professionalism,' said Millar, adding that he believes the goals of raising the level of awareness and promoting the exchange of ideas were achieved.
'I got a great insight into how the profession treats one another,' said Richard Lammers, vice president of the Paralegal Society of Ontario, who attended the meeting in Windsor, Ont. last December.
'Before paralegals were members of the society, we didn’t have much contact or insight into what was going on in the profession,' Lammers added.
Speakers at each event included regional members of the judiciary, senior lawyers and staff from the LSUC’s Professional Regulation Division.
'The judges spoke about how it’s counterproductive to your effectiveness as a lawyer and gave some ideas about what they would like to see in the courtroom,' said Cronyn, who was a speaker at the Ottawa session last November.
'The areas where a lot [of] lawyers have problems is [when they are] trying to deal with each other in the context of moving the case forward to the point where they finally do get into the courtroom. Sometimes it’s felt that lawyers, when they’re not under the microscope of the courtroom and the judges, might be doing things that are less than civil,' added Cronyn, who was also the president of The Advocate’s Society in 2008-2009 and was in integral part of the Principles of Professionalism for Advocates and Principles of Civility for Advocates published in 2009.
'They’re not concerning themselves about whether or not that conduct is policed or watched, so they’re trying more aggressive behaviour in that context.'
Marie Henein of Henein & Associates, who spoke at the Toronto session, agrees that the way lawyers conduct themselves in court can have an effect on how they’re perceived by the judiciary.
'It’s important for us to be well respected by courts and that involves being professional,' she said. 'It’s unfortunate when the courts are put into the position of having to referee or when they feel they are being treated inappropriately.
'In a public forum, that is respect that is lost for everybody in the process.'
Statistics also show that over 80 per cent of professionalism cases involve lawyers who practise either as sole practitioners or in firms with two to five practitioners — illustrating that this is not only a Bay Street problem.
'Anecdotally, people in the smaller centres said they didn’t think there were many incidences of incivility,' said Millar. 'But it’s interesting because once the conversation got going…it turned out that there were more instances of incivility that were discussed.'
But Cronyn argues that in the smaller communities, professionals have a sense of 'self-policing,' in that they tend to work with the same lawyers and judges more often than in an urban centre like Toronto.
'You have to work with each other so frequently that if you take difficult positions, are unreasonable and uncivil you’re probably not going to be very successful within that community,' he said.
But he acknowledged the reason the Advocates’ Society published its principles on professionalism and civility was because 'there was a sense amongst the members that there had been a diminishment.'
Lammers also said that as a paralegal in Windsor, Ont. he has personally witnessed very few incidences of incivility, so the discussion was 'a real eye-opener.
'It was really interesting to hear what’s happening, not only in Windsor, Ont. but throughout Ontario,' he said. 'And only by pointing out the problem and making the profession aware of it can we learn to what extent it can be corrected.
'Will it ever be eliminated? No. But can it be reduced? Certainly.'
The LSUC has taken the first steps to reduce the problem by bringing awareness to the issues and facilitating discussions. But the forum was just that: a first step.
'The law society was very receptive to hearing ideas of ways to manage these problems,' said Henein.
'It’s good that there is a sense of dialogue about issues so that lawyers have a place to go to get some advice or assistance,' she said. 'Up to this point, there was such a deafening silence and you really had nowhere to turn when you were met with these sorts of issues and people felt they had to take matters into their own hands.'
Cronyn agrees that creating dialogue and awareness is a step in the right direction. 'Everything you do to try and improve civility will have some positive effect — even if it’s one step at a time, one convinced lawyer at a time.'
It’s clear that the LSUC believes this issue is not going away on its own and Millar said other steps are being taken to improve the situation. A report on civility will be distributed to the legal professions from the LSUC based on the ideas discussed at the meetings. And, as previously approved, January 2011 will see the 2010 Bar calls taking mandatory continuing legal education devoted to ethics, professionalism and professional regulation and practice management issues.
And there seems to be a consensus that any step towards change is a good step — not only for those working within the profession but for those on the outside looking in.
'If we don’t show respect for the justice system then certainly the public won’t, and that certainly erodes the public’s confidence in the judicial system,' said Lammers.
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