It’s no secret that lawyers are stereotyped as hard-nosed and combative to a fault, forgoing accepted social conventions and professional guidelines in pursuit of a win. While that may win cases on TV, practicing attorneys are acutely aware of the potential consequences of incivility: censure, suspension and, in particularly severe cases, disbarment.
And yet, incivility persists. Could it be that attorneys are hard-wired to lose their cool? Or does the demanding, often un-relenting industry foster such behavior?
Maybe it feels good, powerful even, to rage against the confines of a profession uniquely dictated by both rigid standards and adversarial spirit. Or perhaps, more cynically, it pays to be belligerent.
“There’s always been those types of unfortunate jokes or dark humor types of references to lawyers being uncivil and engaging in incivility,” said Melissa A. Smart, director of education at the Illinois Attorney Registration and Disciplinary Commission. “And I think that oftentimes that might be derived from the misperception that lawyers have to be aggressive, or otherwise argumentative, in order to be deemed successful.”
Smart suggested that an “imperfect storm” of increased technology and social media use merged with a hostile political climate contribute to today’s incivility. And the stress of the ongoing COVID-19 pandemic and reduced in-person connection may also be factors.
“There are people who have suffered loss, who have suffered illness, who are still suffering from long-term effects, that just had a whole bunch of bottled-up emotions going on during a shutdown period,” she said. “And now we are, as legal professionals, grappling with an entirely new legal landscape where court matters are being done in hybrid ways or via Zoom. There’s less networking and in-person camaraderie.”
Wendy Muchman, the Harry B. Reese Professor of Practice at Northwestern Pritzker School of Law and former chief of litigation and professional education for the ARDC, added that attorneys who commit incivility are often dealing with un-addressed personal struggles, which can be exacerbated by the demands of the profession.
“Very often, when you get to the bottom of someone who’s behaving in a way that we would say is rude, obnoxious or uncivil, there’s an underlying unaddressed issue,” she said. “And very often it’s an issue of lawyer wellness, whether it’s an addiction issue or a mental health situation.”
With a lawyer’s ultimate objective being to secure a victory for a client, the line between zealous advocacy and incivility can begin to look more like a gradient. James J. Grogan, an adjunct professor at Loyola University Chicago School of Law and former deputy administrator and chief counsel for the ARDC, said the gray area between standing one’s ground and incivility often manifests in attorney’s criticisms of judges.
Grogan said attorneys should aim to convey “Judge, I think you got that wrong,” not so much “Judge, you’re a horse’s ass.” But that said, “that lawyer sometimes has to challenge the process, so you have to give enough play to the person to be able to represent that client in the context of a case.”
Despite the ambiguity of the two concepts, Grogan offered a simpler mantra: “Obnoxious doesn’t mean zealous.”
Grogan suggested that incivility may operate as a form of “primal scream therapy” where one unleashes pent-up emotions to achieve ultimate catharsis. However, he said, this method of release does not belong in the legal profession.
“Incivility by its very nature means it’s disruptive and not appropriate,” he said. “You’ve got to distinguish that from some-times being tough, being aggressive, being hard-nosed, [to] where you cross that line. Incivility has nothing to do with the process.”
Diana Uchiyama, director of the Illinois Lawyers’ Assistance Program, said that the “win at all costs” mentality of the legal profession, combined with extremely demanding workloads and a field filled to the brim with perfectionists, lay the ground-work for attorneys to stray outside the realm of accepted professional behavior.
“We get accolades for winning, not so much for losing,” she said. “We don’t really get positive reinforcement from, ‘You did your best; you argued despite having a difficult case.’”
Uchiyama suggested that incivility may offer temporary catharsis for attorneys experiencing “hydraulic rage,” but it is ultimately not a healthy coping mechanism.
“It feels good to the person doing it because it’s a release,” she said. “It’s like a built-up explosion. But the problem is that you leave everyone in its wake decimated.”
She added that while perpetrators of incivility typically deflect from their wrongdoing, those who are victims of such behavior can’t brush it off quite as easily. Some leave the industry “because they can’t deal with incivility, aggression, high toxic anger.”
“I would say that repeated incivility and repeated microaggressions lead to increased mental health [struggles], increased chronic stress and sometimes increased maladaptive coping mechanisms in order to manage the overwhelming feeling of having to deal with that over and over again,” she said.
Lockport city attorney Sonni Choi Williams echoed this sentiment and recounted her own experiences facing both misogynistic and racist incivility.
“I was called the c-word in my office one time because I wasn’t agreeing to something that [the opposing counsel] want-ed me to agree to,” she said. “I was shocked. And this is an older male attorney ... who had great influence in the community. He was so used to getting his way and when I said ‘no,’ that’s when his true colors showed up.”
Williams described another instance where an older male attorney began discussing his recent visit to China with her, including describing adjusting to using chopsticks, even after she clarified that she is Korean. As the profession grows slowly more diverse, she said, such incidents should decrease.
For now, the overrepresentation of white men in positions of authority — as firm partners and judges and the like — means they are similarly overrepresented in perpetrating impactful and memorable acts of incivility.
“They’re in a position where they’re hiring, they’re promoting,” she said. “When you have microaggression behavior, you notice it more in that setting, done by a white male attorney versus a minority counterpart, because a minority is most likely not in a position of power.”
Williams said years of exposure to microaggressions and more direct forms of incivility can begin to chip away at attorneys.
“They’re like little paper cuts,” Williams said of microaggressions. “But after getting a paper cut over and over again, year after year, you are bleeding to death.”
However, she said that while deliberate incivility may serve as a power trip for some attorneys, “karma is going to come back.” And as a strategy, it might not be so smart.
“Every case that I’ve dealt with where the other side was a jerk, the attorney really didn’t advance their client’s case,” she said. “It was a waste of their client’s time. It really doesn’t bode well for advancing their client. And they may have a temporary feeling of ‘I won this by totally being a jerk and winning the shouting match,’ but winning the shouting match doesn’t mean you’re going to win the case.”