Zealous advocacy and beyond: Leaders share views on civility

We sought a variety of perspectives on professional behavior — and found a lot of agreement.

Terry A. Fox of the Illinois Defense Counsel, Patrick A. Salvi II of the Illinois Trial Lawyers Association and Stephanie Villinski of the Illinois Commission on Professionalism contemplated our questions on what’s going right — and wrong — with how attorneys act.

Q. Is incivility trending up or down in your experience, and why?

Fox: I think incivility peaked during the COVID-19 pandemic due to lack of in-person communication. I find people are getting slightly more civil as we return to more in-person advocacy — except in Cook County, where the state court judges apparently are refusing to return to in-person hearings.

Salvi: As an eternal optimist, I want to say incivility is trending down. However, lawyers should always strive to counsel their clients to allow for civility, both in terms of cordiality and (more importantly) how we approach cases. When a lawyer is polite but takes highly unreasonable positions in a way that unnecessarily prolongs litigation on issues other than the legal and factual merits, that is not civility. We can be zealous advocates and civil at the same time.

Q. Where is the line between incivility and zealous advocacy?

Fox: When it turns personal and when profanity comes out.

Salvi: Zealous advocacy allows for lawyers to ask questions, make arguments and file motions that perhaps are weak or novel or in good faith in an effort to change the law. But it does not allow actions that by any reasonable assessment would be out of bounds, like harassment of a party or witness, or filing motions designed to delay.

Villinski: The Rules of Professional Conduct lay out what can be considered the baseline for an attorney’s behavior as a representative of clients, an officer of the legal system and a public citizen. The commission aims to promote attorney behavior that goes beyond this baseline in service to improved access to justice and a commitment to eliminate bias and divisiveness within the legal profession. Zealous advocacy includes representing clients in a well-informed, fair, passionate and professional manner. Incivility, on the other hand, is demonstrating disrespectful and disagreeable behavior that detracts from the administration of justice.

Q. What could the legal community be doing better to tamp down on incivility?

Fox: Highlight the issue more. There should be stronger peer pressure among counsel to steer lawyers away from that type of conduct. Individuals can deal with it right when it happens; do not fester over it and act later. If someone is rude to you, perhaps a response of “Not to be rude, but my take on this is that the chicken was already on the road before my client came over the hill.” If it continues, ask the lawyer why they are being rude and uncivil to you. Most people do not realize in the heat of argument that they have crossed a line.

Salvi: The legal community should do its best to draw some bright lines where, if crossed, there will be strong penalties. Motions for sanctions should not be brought lightly, but those same motions should be seriously considered by judges and granted when attorney behavior must be addressed. The unfortunate truth for judges facing these motions is that granting them might be uncomfortable, but at times, it is necessary to ensure that lawyers know there are guardrails to zealous advocacy.

Villinski: If incivility happens in the courtroom, other attorneys should speak up and address the bad behavior. Judges should also outline what is expected in their courtroom and intervene when incivility occurs to let attorneys know that it won’t be tolerated. For example, Judge Michael J. Chmiel of Illinois’ 22nd Circuit Court issued a series of standing orders that began with a section reminding parties and attorneys to engage in professionalism and civility in the handling of court cases and to confer on pending matters before their court date. There are penalties and enforcement for incivility, even disbarment. A recent example in Illinois is In re Felipe Nery Gomez. Attorney Gomez sent threatening and harassing emails to seven attorneys during pending litigation and was subsequently suspended from practicing law for three years.

Q. If we view civility as essential to trust and collaboration, why would attorneys choose not to be civil?

Fox: We don’t trust and collaborate with opposing counsel, usually. We are advocates. The problem lies in going too far.

Salvi: It is hard to know why a lawyer acts uncivil in a given situation. Something in his or her personal life? Client pressure? Whatever the case may be, it is important for lawyers to be aware of these pressures or feelings and try to avoid allowing it to bleed into their dealing with opponents.

Villinski: Clients and coworkers often place pressure on attorneys to be overly aggressive to win a case. If they’re successful and the uncivil behavior is rewarded, it is more likely to continue. Moreover, if opposing counsel is uncivil, it can be challenging not to react similarly. It’s human nature to mirror others’ behavior and treat people how they treat you. This can be difficult to interrupt, but listening to understand the other person’s perspective instead of immediately reacting is a good first step. In addition, we all know that being an attorney is time-consuming and stressful. If we don’t have healthy outlets to re-lease our stress like exercise, time off or doing things we enjoy, it’s easier to overreact in challenging situations.

Q. What has been your most effective means of curbing incivility in your legal practice?

Fox: Lead by example; attempt to deflect by re-focusing the conversation.

Salvi: Preparedness is the great equalizer. An act of incivility, when I am eminently prepared, comes across as little more than either ill-preparedness or an insecurity the lawyer must have regarding his or her case. If all lawyers are prepared, incivility is unlikely to have any effect, let alone the effect the less-than-civil lawyer desires.

Q. Can we trust our colleagues who are not civil?

Fox: This question calls for a tenuous leap of logic that incivility equals untrustworthiness or dishonesty. I do not see that connection. I know plenty of very pleasant lawyers who I do not trust in terms of being on opposite sides. Lawyers who are uncivil cause colleagues not to want to work with them because they are unpleasant.

Villinski: If a colleague is practicing strategic incivility, there is a question of trust. Strategic incivility includes things like intimidation, misrepresenting the facts and negotiating in bad faith. This type of behavior undermines trust in the justice system and should be called out immediately.

Q. Do lawyers who act civil put themselves at a competitive disadvantage?

Fox: No, I believe it is quite the reverse. Uncivil lawyers put themselves at a large competitive disadvantage. No judge wants to hear petty snide remarks directed at the other side. In non-court settings, the rude lawyer often motivates opposing counsel to work harder than she would otherwise do.

Salvi: Lawyers who act civil are at a competitive advantage. In certain instances, the uncivil lawyer may benefit from incivility or otherwise get away with uncivil behavior without being sanctioned or punished. In the long run, the civil lawyer is the one whose reputation remains intact within the bar and in the eyes of the bench.

Villinski: Lawyers who act civil do not put themselves at a competitive disadvantage. Being civil does not mean you have to agree with the other person’s position. Instead, it means that you can zealously advocate your position without demeaning the other person or their position. I would argue that this type of civil advocacy can often lead to a more satisfactory out-come for both sides.

Q. Do you have other thoughts or observations to share on civility?

Fox: Everyone has a much more enjoyable time as a lawyer when they do not have to deal with unprofessional jerks. Practicing law is hard enough without that overlay. This sounds perhaps too simplistic, but if we remind ourselves to dial it back each day, there would be less civility issues.