What About A War On Incivility?

// For those readers too young to remember the events of September 11, 2001, Rudy Giuliani (yes, that Rudy Giuliani), then New York City’s mayor, was deemed “America’s Mayor,” for the way he took control of a city, a country, suffering unimaginable horror from the loss of life and property that day.

For those readers of a certain age, we remember that day as if it were yesterday, whether in New York; Boston; Shanksville, Pennsylvania; Washington, D.C.; or anywhere at home or abroad. We were transfixed by television (in the days before smartphones and streaming apps). Those days are etched indelibly in our collective psyches. Shock, horror, it’s still hard to find words all these years later.

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Partisan bickering was shoved aside, at least for a little while, as we mourned the losses of loved ones, not just citizens, but people all over the world who worked at the World Trade Center towers and adjacent buildings, at the Pentagon, and who died in Shanksville, Pennsylvania. All of the first responders who lost their lives both at the time and from illnesses that devoured them years later, all of those who worked for hours, days, weeks, in the futile hope that some people would be still found alive, all of the flyers posted everywhere with the names and photos of those missing. It’s still a shock to our system. It was the opening salvo in what would be called the “War on Terror.”

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I think we now have another “war on terror.” And that is the way that we treat each other as people and as lawyers. What has happened to us? Bar associations large and small have wrung their metaphorical hands over the past few years over the increasing incivility and decreasing collegiality among us. What has happened so that the term “civility” now has become a part of an attorney’s oath of admission, at least here in California? And here, the State Bar Board of Trustees is recommending changes that would allow attorneys to be disciplined for incivility under the state’s Rules of Professional Conduct. What’s the difference between one lawyer’s rudeness and discourtesy and another’s aggressive negotiation tactics? Where is that line to be drawn? TBD. The cost of incivility is on the rise both in reputational and financial terms.

Our profession has become coarsened in how we treat each other. And I’m looking at lawyers and judges. I shudder to think about what September 11, 2001, would have been like had there been social media. Trolls, deniers, every possible cringeworthy voice would have turned that tragedy into a spectacle for those who seek it and revel in trash talk. 2001 was blissfully unhampered by social media and smartphones. What little disrespectful nattering or strident and unpopular noises occurred were considered fringe. People disagreed about many things back in those days, but people were united in their grief and horror and showed common decency for what had happened. The world has changed and not for the better.

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Just a couple of recent examples of incivility nowadays within our bench and bar:

How about this one from the Wisconsin Supreme Court, where you would think that collegiality, even in differences, would exist? Not here. Cage match?

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How about this one? Funny, not funny, for this attorney who put his foot in his mouth big time with stupid comments. Everyone, except for this man, understands that it’s critical to know your audience. No one has the same sense of humor, not even close. What one finds funny, another may find offensive.

In that oldie but goodie maxim of “don’t put anything in writing that you wouldn’t want to see in print or online,” the State of New York Commission on Judicial Conduct has censured a judge for inappropriate, profane, and demeaning comments on her Facebook page. Please, tell me, what part of the word “judgment” do judges not understand?

And what kind of choice (using the term advisedly) is there where a Black defense attorney, representing himself and his brother in a landlord-tenant matter, is arrested, jailed, and shackled into a judge’s courtroom and told either “settle this case” or produce certain documents within a very short time? The correct answer is “no choice.”

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A lawsuit has already been filed against the judge in both his official and individual capacities.

How about not pointing an AR-15 rifle at a law enforcement officer while intoxicated? I am not making this up. A Georgia magistrate judge has had the good sense to resign while under investigation for this incident.

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However, if this former judge ever decides to seek judicial office again, the disciplinary complaint could be reinstated. A sufficient deterrent?

What gets lost in all these hijinks — or more appropriately “low jinks” — are all the lawyers and judges who comport themselves civilly all day long every day and who extend the traits of courtesy and respect to counsel and litigants. They are the foot soldiers in this war against incivility. They deserve our thanks, even if we don’t say so.

Jill Switzer has been an active member of the State Bar of California for over 40 years. She remembers practicing law in a kinder, gentler time. She’s had a diverse legal career, including stints as a deputy district attorney, a solo practice, and several senior in-house gigs. She now mediates full-time, which gives her the opportunity to see dinosaurs, millennials, and those in-between interact — it’s not always civil. You can reach her by email at [email protected].

 

Topics

Jill Switzer, Legal Ethics