Civility A Very Brief Overview

ESTATE LITIGATION BASICS 2012 UPDATE PAPER 5.1 Civility A Very Brief Overview These materials were prepared by Rhys Davies, QC of Davis LLP, Vancouver, BC and E. Jane Milton, QC of Bull, Housser & Tupper, Vancouver, BC, for the Continuing Legal Education Society of British Columbia, November 2012. Rhys Davies, QC and E. Jane Milton, QC

5.1.1 CIVILITY A VERY BRIEF OVERVIEW I. Introduction... 1 II. What Does It Mean?... 2 III. What s the Point of Being Civil?... 3 I. Introduction 1. Lawyers have an ethical obligation to be civil. 1 This obligation extends not just to other lawyers, but to everyone we come in contact with clients, other parties, witnesses, judges, arbitrators, court staff. Incivility (or bad behaviour, to borrow Michael Code s expression 2 ) can lead to sanctions from the Law Society. 2. The requirement for civility extends throughout the judicial process. In Code s words, the right to a fair trial includes the right to be protected against the uncivil behaviour of an opponent. there are judicial remedies for violations of counsel s duty of civility. Thus, incivility can lead to sanctions from the Court against the lawyer, or her client, as noted below. 3. According to several commentators, civility in the legal profession in particular has deteriorated badly. The decline is traced back to the sixties. In the US, Chief Justice Burger gave the issue prominence in 1971, in an address to the American Law Institute (see Code, n. 9). Code summarizes the explanations for this decline at the beginning of his paper. They include the transformation of the legal profession from a small profession, characterized by public service ideals, into a large, highly competitive business, characterized by the pursuit of profits, the fact that developments in both civil and criminal procedure have produced greater opportunities for incivility outside of trials by providing new procedures that are more easily abused, a lack of attention to the topic of civility in law schools and by the judiciary, and popular media images of lawyers who succeed through rudeness and aggression. 4. Whatever the reasons, it is fair to say that incivility is now being taken seriously both by the courts and the law societies. Code discusses two high profile Ontario Court of Appeal decisions, Marchand (Litigation Guardian of) v. Public General Hospital Society of Chatham (2000), 51 O.R. (3d) 97 1 In BC the sources of this obligation are in the Canons of Legal Ethics. Thus, the Preamble refers to the lawyer s duty to be, among other things, courteous in relations with other lawyers. Section 2 states that a lawyer should maintain toward a court or tribunal a courteous and respectful attitude and insist on similar conduct on the part of clients, at the same time discharging professional duties to clients resolutely and with self-respecting independence. Similar statements are made with respect to how lawyers should treat adverse witnesses, litigants and opposing counsel. The new Code of Professional Conduct that comes into effect on January 1, 2013 retains the Canons. 2 See Counsel s Duty of Civility: An Essential Component of Fair Trials and an Effective Justice System (2007), 11 Can. Crim. L.R. 97. Code is now a justice of the Ontario Superior Court. His paper has been referred to extensively, including by the Supreme Court of Canada. It deals with civility in the context of litigation, civil, criminal and regulatory. It contains very useful historical background. We draw heavily on parts of this paper in this piece.

5.1.2 and R. v. Felderhof (2003), 180 C.C.C. (3d) 498. Felderhof involved the conduct of Joseph Groia, who has since been found by the Law Society of Upper Canada to have committed professional misconduct in the regulatory proceedings that were the subject of Felderhof: Law Society of Upper Canada v. Joseph Peter Paul Groia, 2012 ONLSHP 94. Code also refers to the BC Court of Appeal decision in R. v. Dunbar, 2003 BCCA 667. II. What Does It Mean? 5. Civility requires that we do not make personal attacks on opposing counsel. We should not attack their integrity or their competence. If we think opposing counsel is dishonest or incompetent, we can address those concerns through the appropriate channels. Personal attacks on opposing counsel can compromise the trial process. 6. For instance, in Dunbar the Court of Appeal reported counsel for the appellants to the Law Society for misconduct in the conduct of a series of appeals. The Court had this to say about the conduct that led them to take that step: [330] These reasons for judgment cannot be concluded without some comment on the conduct of counsel for the four appellants, Mr. X. We have concluded that none of the four cases raised any meritorious ground of appeal. If that were all there was to these appeals, the court would have no criticism of counsel s conduct. The administration of justice depends upon the willingness and ability of counsel to advocate difficult cases, and to raise new arguments, without fear of personal consequences. As has aptly been said, some of the best counsel work has been done in a losing cause. The courts, and public confidence in the administration of justice, depend upon counsels integrity, independence and courage. It is counsels duty to represent the unpopular client or cause by all lawful means, including the presentation of novel or innovative arguments. [331] Regrettably, in this case, counsel s zeal blinded him to his professional responsibilities. Mr. X presented, and relied upon, affidavit material that is unworthy of any lawyer. Our reasons show these affidavits are replete with inadmissible hearsay, opinions, speculations, argument, and the irrelevant. The affidavits are rambling, repetitive and disorganized. They contain serious allegations of unprofessional conduct and substance abuse, against another lawyer or former lawyer, all of which allegations were unfounded. 7. Civility requires that we treat judges and other adjudicators with respect both the respect owed to the office they occupy, and also the respect owed to other people as a matter of course. This does not mean that we should not stand up for our clients, but, in the words of the Supreme Court of Canada, 3 this must be done with dignified restraint : [68] Lawyers potentially face criticisms and pressures on a daily basis. They are expected by the public, on whose behalf they serve, to endure them with civility and dignity. This is not always easy where the lawyer feels he or she has been unfairly provoked, as in this case. But it is precisely when a lawyer s equilibrium is unduly tested that he or she is particularly called upon to behave with transcendent civility. On the other hand, lawyers should not be expected to behave like verbal eunuchs. They not only have a right to speak their minds freely, they arguably have a duty to do so. But they are constrained by their profession to do so with dignified restraint. 8 The same duty is owed to self-represented litigants and other lay persons who are involved in the process, such as parties and witnesses. 3 Doré v. Barreau du Québec, 2012 SCC 12.

5.1.3 9. Therefore, by way of example, we must not make unfounded allegations that opposing counsel has breached the rules of professional conduct, as, for example, swearing an affidavit on behalf of a client that goes beyond the limits imposed by the professional conduct rules, or that misstates the facts or spins them. This can result in an award of special costs against your client if you conduct yourself in this fashion. 4 We must not insult or demean others through sarcasm, or patronizing comments. 10. That is stating the obvious, although sometimes counsel lose sight of this in the stress of a hard fought dispute. But we would suggest that civility extends to how we deal generally with disputes on behalf of our clients. Civility means that you should not take unreasonable positions for their own sake. For example, if opposing counsel needs an extension to a deadline, and there is no valid reason to refuse it, it should be granted. We should cooperate with opposing counsel in resolving matters, rather than bring motions, and we should not take any steps that might take opposing counsel by surprise without first alerting them, unless that is infeasible. The same principle applies to scheduling matters. These are just some examples. 11. Some counsel may argue that civility is a two-way street, and point out that opposing counsel, judges, parties, witnesses have to behave in the same way. We agree with that position the requirement for civility applies to all. However, when an opponent or a judge crosses the line and descends into incivility, we cannot respond in kind. Two wrongs do not make a right. III. What s the Point of Being Civil? 12. The rationale for these rules does not arise from a distaste for bad manners generally. Civility is considered an essential quality in how disputes are dealt with in the justice system. 13. Code refers to four distinct ways in which civility is related to trial fairness and to the just resolution of legal disputes, starting at 105 of his paper. He identifies the harm to the client s case if her counsel is distracted from it by having to defend herself from personal attack. Second, if the trial is conducted in an atmosphere of hostility, this also distracts the trier of fact from the real issues in the case. Third, it can lengthen and delay court proceedings. Fourth, it undermines public confidence in the administration of justice. 14. The Law Society of BC has noted these concerns in its disciplinary decisions. See, for example, Law Society of BC v. Greene, [2003] LSBC 30, where the respondent had made comments about another lawyer and members of the judiciary. The panel held (at paras. 34 and 35): Our occupation is one where we often deal in difficult circumstances with difficult people, and emotions often run high. It is not in the best interests of the justice system, our clients, and ourselves to express ourselves in a fashion which promotes acrimony or intensifies the stressfulness or the difficulty of those already stressful and difficult circumstances. Public writings or comments which promote such acrimony or denigrate others in the justice system have a negative effect upon the system as a whole. This is particularly true where it appears that the comments are made for no purposeful reason. 15. Finally, this very good advice, contained in an editorial in the March 2012 edition of Canadian Lawyer magazine: While lodging a complaint with the law society against such individuals is an option, the best way to deal with it, according to the above noted panel, is to be the better 4 See The Los Angeles Salad Company Inc. v. Canadian Food Inspection Agency, 2011 BCSC 1558.

5.1.4 person. Don t be civil because it s the honourable thing to do, but because it s strategic. Too true. The best course is not to engage in a back and forth, be reasonable, be prepared for objections that may come up, and don t lose your cool. Ontario Superior Court Justice Susan Healey, who presides in Barrie, Ont., noted that as a judge she sees a tremendous number of lawyers going through the courts, and offered up some invaluable tips on combating incivility and making yourself look good in the process. I will share them because they were good, especially the first one. If you re in court with an a-hole, don t point it out to the judge. The judge can pretty much see it for herself. Behave well. The more professionalism and integrity you show, the greater the contrast with the other lawyer. Surprise attacks are a bad idea. Don t be dragged down by the combative attitude of the other side. Don t interrupt the judge. Don t talk among yourselves and disregard the judge, you know, who is running the courtroom. While her tips above apply to litigators, here are some words of wisdom from Healey that every lawyer should live by: Arrogance and swagger are not a show of competence. So, as the famous sportswear manufacturer says, just do it. Behave well and stay above the fray and both you and your client (not to mention the profession) will benefit. For further reading on this issue, we strongly recommend the Principles of Civility for Advocates, published by the Ontario Advocates Society. It has established an Institute for Civility & Professionalism which has also published Principles of Professionalism for Advocates. 5 The Ontario courts have suggested a readiness to apply these principles see, for example, Kariouk v. Pombo, 2012 ONSC 939. The Law Society of BC has also endorsed them, as of assistance in articulating the importance of civility in the profession. 6 5 They can be downloaded from the Society s website, http://www.advocates.ca/new/advocacy-andpractice/institute-for-civility-and-professionalism.html, and are also on the Ontario Courts website. 6 See Lanning (Re), 2008 LSBC 31, para. 50.