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The perception that the legal profession is becoming less civil has attracted widespread comment – from the judiciary to legal associations to regulatory bodies. The common concern: the potentially damaging consequences of a lack of civility on the individual matter, on the lawyer-client relationship (and on the quality of the service that the lawyer provides the client) and, ultimately, on the reputation of the bar as a whole.

In 2000, The Advocates’ Society shouldered some of the responsibility for turning the tide by creating a set of Principles of Civility. Despite lacking the force of law, the widely praised principles have been cited not only by Canadian judges, but also in judicial systems internationally.

Much has been written about the impact of incivility on the administration of justice and on the public image of the profession. But as Mark Lerner, president of the The Advocates’ Society explained during a recent interview, incivility “ultimately comes back to the client” who must live with the consequences of a lawyer’s conduct, both in court and at other stages of legal proceedings.

LAwPRO: Some lawyers suggest that clients are partly to blame for lawyer incivility. Do clients urge lawyers to be aggressive or uncivil?

Mark Lerner: Sometimes clients may be behind it: Some clients, particularly in matrimonial law, want lawyers to be “gunslingers.” But lawyers need to be able to withstand that kind of pressure. Lawyers need to manage client expectations; and by expectations, I mean not only expectations about results, but also expectations about the lawyer’s style.

LP: What can lawyers do to manage client expectations?

Lerner: I tell my clients: “my role is to resolve a dispute.” A lawyer should not be a
puppet to the client’s wishes. The lawyer is a professional adviser. Sometimes a client may suggest that a lawyer is not being difficult enough. But if you’re pushing back just to push back – or just to irritate the other side – it’s going to have a negative impact. I said to one client [who had requested a more aggressive stance in his employment law matter] “you’re still working without restrictions. If you want to be difficult, these are the possible consequences: You may lose your job.” If the client wants a scorched-earth policy, the lawyer needs to explain that there are consequences that will flow from that.

LP: What are some of the potential consequences of a lawyer’s uncivil conduct?

Lerner: It affects the way lawyers are viewed by opposing counsel, and the way they’re
dealt with by judges. Lawyers talk. Judges talk. That kind of reputation gets around. Nobody has ever been successful just by being a bully. Some lawyers come in all guns blazing: I’ve seen it myself, and I’ve never understood it. I don’t know whether it’s a lack of self-esteem, or whether it’s a lack of mentoring in the early years of practice, or whether they just think that that’s the way
lawyers should act based on television. But there are levels of professionalism and civility that need to be maintained. You can be firm, but also be fair.

LP: Can mentors help lawyers learn to be civil?

Lerner: It depends on what the mentor is like. Lawyers who aren’t exposed to good mentors or who don’t observe senior counsel demonstrating an appropriate tone of civility don’t always learn appropriate conduct. Mentors can make a difference.

LP: Does lawyer incivility tend to prolong litigation or negotiations?

Lerner: Absolutely. I think that being inflexible, not being accommodating, bringing unnecessary motions, taking unreasonable positions without appropriate grounds, just for spite – it all ultimately comes back to hurt the client.

LP: Why is discovery such a common context for civility problems?

Lerner: There is no judge or referee present. You’ve got your client sitting right beside you, watching you perform. If the other lawyer is being aggressive, you may feel like you have to rise to the bait, because the client is right there, measuring your performance. But you can’t “pick up every nugget on the road.”

LP: What do you mean?

Lerner: If you don’t pick your battles, you’re not doing your job. Experience, temperament, personality – and more importantly, judgment – should remind you where to draw the line.

LP: If you could give one piece of advice to lawyers about how to avoid pitfalls in relationships with clients, what would it be?

Lerner: If lawyers start to develop a relationship of confidence and trust with their
clients right from the first minute that the lawyer is retained, it will go a very long way toward eliminating complaints to the Law Society or lawsuits against the lawyer.

It’s very difficult, if not impossible, to begin to work on the lawyer-client relationship halfway through the litigation. Ultimately, the lawyer is going to want to make a recommendation to a client, or take instructions from the client; but if the client doesn’t have any confidence in, or respect
for, the lawyer, it’s very difficult to develop that later on. Confidence and trust are absolutely fundamental. First impressions really do count.

Absolutely. I think that being inflexible, not being accommodating, bringing unnecessary motions, taking unreasonable positions without appropriate grounds, just for spite – it all ultimately comes back to hurt the client. LP: Why is discovery such a common context for civility problems? Lerner: There is no judge or referee present. You’ve got your client sitting right beside you, watching you perform. If the other lawyer is being aggressive, you may feel like you have to rise to the bait, because the client is right there, measuring your performance. But you can’t “pick up every nugget on the road.” LP: What do you mean? Lerner: If you don’t pick your battles, you’re not doing your job. Experience, temperament, personality – and more importantly, judgment – should remind you where to draw the line. LP: If you could give one piece of advice to lawyers about how to avoid pitfalls in relationships with clients, what would it be? Lerner: If lawyers start to develop a relationship of confidence and trust with their clients right from the first minute that the lawyer is retained, it will go a very long way toward eliminating complaints to the Law Society or lawsuits against the lawyer. It’s very difficult, if not impossible, to begin to work on the lawyer-client relationship halfway through the litigation. Ultimately, the lawyer is going to want to make a recommendation to a client, or take instructions from the client; but if the client doesn’t have any confidence in, or respect for, the lawyer, it’s very difficult to develop that later on. Confidence and trust are absolutely fundamental. First impressions really do count.