Cursing just loud enough to be heard. Making fun of opposing counsel’s accent. Toxic emails, tweets, and inappropriate gestures. Harassing phone calls. Gossiping on social media. Abusing procedural processes. All under the pretense of zealous advocacy. The levels of hostility and incivility in the practice of law are rising. Not only does this behavior reflect poorly upon the profession and undermine public trust in lawyers, but it also directly affects attorney job satisfaction, depression, substance abuse, and other traumas to our well-being.
State bars, continuing legal education classes, and Supreme Court commissions have focused on setting standards for behavior and providing actions for when a judge or lawyer behaves badly. However, what can we do, as individual lawyers, law firms and departments, and as a community, to reclaim the profession and minimize the bad behaviors that have become all too common?
What Gets in the Way?
Most of us have a sense of what constitutes unprofessional behavior. We also know the environment in which we want to practice. Yet somehow, something gets in the way. Psychologists have identified several factors that contribute to the failure to intervene when witnessing misbehavior.
- Mindlessly unprofessional. Law is a stressful profession. As lawyers, we must consider everything that could go wrong with a potential deal or relationship. Attorneys are the ones who raise important issues that we have been taught should not be discussed in polite company. These may involve financial matters or matters of the heart, whether employees lose their jobs or parents lose their children. The issues can affect our client’s freedom, self-worth or self-respect. And while we are busy raising the uncomfortable things, another lawyer on the other side of the aisle is vigorously fighting for the outcome we fear most. Add to this the long hours and unreasonable expectations, and it is easy to mindlessly fall into rude, disrespectable and petty unprofessional behavior. Opposing counsel smugly attacks us, questions our integrity or overwhelms us with worthless filings, and it is easy to snap back. We are human after all. Yet we are called upon to be the level-headed guides and iron-willed advocates when everyone else is being their least humane.
- Deliberately unprofessional. Rude and uncivil behavior is not always the product of mindlessness. Some attorneys see it as part of their job to use whatever they can to zealously represent their client, even if it means creating unwarranted delays, undermining or frustrating opposing counsel, or even insulting or threatening behavior. A creative, unscrupulous lawyer can do any number of uncivil and unprofessional things without triggering disciplinary action. Sometimes these strategies work. However, it would be disingenuous to say these types of behaviors are necessary for effective advocacy. Research has shown that business people who treat one another with respect and in good faith do better most of the time. After surveying data across over 3,500 business units, Wharton psychologist Adam Grant found that most of the time, these “givers,” those who contribute to others without seeking anything in return, get the best results. Contrary to the words of Michael Corleone, acting like a jerk in the practice of law is not “strictly business.” It is personal. It reflects who we are as a person.
- Uncritical conformity to group norms. Most often, people assimilate to the culture around them. When that culture is one of the lawyers behaving badly, whether toward opposing counsel, other attorneys in our firms or certain segments of the bar, it is hard to hear that voice deep down that senses that something just is not right. As such, we begin to accept as normal behavior that would be unacceptable in every other domain in our lives.
- Diffusion of personal responsibility. Even if we can maintain our better sense and remain above the fray, we may not feel like it is our business to speak up when a law partner or friend acts unprofessionally or rudely. It is their case. They are adults and learned professionals. The approach they take is up to them.
- Passive tolerance through inaction or indifference. The problem, however, is that if we fail to act, whether out of mindlessness or feeling that it is not our responsibility, we allow the inappropriate behavior to become the standard, undermining the profession and cutting even deeper into our personal well-being.
What Can We Do About It?
It is up to all of us to insist upon the culture that we want in the law, through our own actions and in setting our expectations with those around us.
- Self-awareness. Bad behavior is not limited to the courtroom or negotiation table. Gossip about other lawyers at holiday parties, spreading rumors, chuckling at racist or sexist jokes. All of us want to fit in, and it is easy to get drawn into behavior that is demeaning to other lawyers and to ourselves. When this occurs, you do not need to loudly drive a stake into the moral high ground and denounce those around you. Simply refuse to participate in the small transgressions that make all of us smaller. Or softly point to the counter-evidence, the times when the one talked about did something kind or honorable or made you proud to be a lawyer. Point out the things that restore a sense of shared humanity between you and them and those who would offend.
- Confront bad behavior directly. When you are witness to bad behavior, call it out. If a lawyer is abusive toward another lawyer or uses offensive language, respond directly. Name what is happening. Assist the person who was targeted without being drawn in into a debate with the harasser. Of course, a direct response might not always be possible or appropriate. Maybe you are an associate witnessing unprofessional behavior by a partner, or by a judge presiding over your case. Reach out to others who might be able to assist, maybe another partner or judge. Also, document what occurred.
- Quiet moments among friends. At times, our peers or our colleagues may behave unprofessionally. Confronting the behavior does not always have to be loud and public. Being gentle with a friend, but unwavering about our commitment to humanity, can be extremely powerful and effective in reestablishing the sort of culture we would be proud to call our own.
- Celebrate good behavior. While it is important to call out incivility, it is essential to identify and encourage the behavior we want to see. A colleague may have handled themselves with dignity, grace, and self-restraint in dealing with an abusive attorney or judge. Tell them how well they handled it. Point it out to others. By so doing, you will affirm for them that character matters, help solidify their self-image as one who stays above the fray and provide pro-social modeling for other lawyers. It also could open further dialogue about civility, the culture of law, and who we want to be as human beings. As we raise our consciousness about bad behavior, do not forget to notice and note those lawyers who are a tribute to the profession. They can be real-life models for all of us.
Conclusion
Every one of us affects the culture in which we live and practice. Every one of us is in a position to stand up for civility. It is about demanding a culture that is appropriate and fair and professional. It is about enhancing your well-being and ability to thrive over the entire course of your career.
About the Author
John “Sean” Doyle is the general counsel of MCNC, a nonprofit that operates a broadband communications infrastructure for North Carolina universities and other institutions. Also a poet and author, he blogs at johnseandoyle.com and can be reached on Twitter @JohnSeanDoyle.