The Obligation of Lawyers to Heal Civic Culture: Confronting the Ordeal of Incivility in the Practice of Law
University of Denver Sturm College of Law
Russell G. Pearce
Fordham University School of Law
November 14, 2011
University of Arkansas at Little Rock Law Review, Vol. 34, p. 1, 2011
U Denver Legal Studies Research Paper No. 11-27
Fordham Law Legal Studies Research Paper No. 1969961
The debate following the shooting of Congresswomen Gabrielle Giffords has highlighted the uncivil, angry, and counterproductive state of public discourse today. In this Article, a contribution to a symposium on the Transformation of Public Interest Law, we argue both that lawyers have been responsible for promoting a culture of incivility and have an opportunity to play an important role in healing that culture.
For almost 30 years, the legal profession has been struggling to explain the perceived erosion of professionalism and a corresponding decline in lawyers’ civility. We believe that the current rise in incivility draws its strength from the increasing influence of perspectives grounded in an autonomous, as opposed to relational, view of personal and political self-interest. Specifically, the current incivility crisis, whether unique or cyclical, tracks the shift in the legal profession from a professional conception of the lawyer‘s role grounded in relational self-interest, including an obligation to the public good, to a neutral partisan or hired gun conception grounded in autonomous self-interest and rejecting a particular obligation to the public good.
No matter how lawyers view their role, they serve as civics teachers who explain the appropriate responsibilities of citizenship both in their everyday practice and in their civic leadership. Our contention is that as neutral partisans, lawyers have contributed to the civic malaise, in and outside of the legal profession. Many lawyers today practice and teach the autonomous self-interest approach of the Holmesian bad man — the individual‘s obligations to the spirit of the law and the community are only what he or she can get away with within the bounds of the law. In this way, lawyers as civics teachers have promoted a commitment to autonomous self-interest not only in the private dealings of clients but in culturally manufacturing autonomous self-interest as the dominant paradigm of public discourse and in the resulting erosion of relational self-interest as a countervailing influence.
We assert that lawyers should instead draw upon the relational tradition found in professionalism and the lawyer‘s historic role to encourage public dialogue, help repair our civic culture, and suggest to clients relational means of pursuing their interests. Our proposal for lawyers as relational civics teachers seeks to change the cultural norms of attorneys and of society. Rather than maintaining the current culture of incivility by acting as neutral partisans, lawyers have the opportunity and obligation to adopt a relational perspective in their work and in their civic leadership. By counseling and modeling relational self-interest, lawyers can play a powerful role challenging the dominance of autonomous self-interest and, over time, help heal our civil society.
Prof. Kenneth S. Gallant of the UALR Bowen School of Law posted a reply to our Article on SSRN, which is available at http://ssrn.com/abstract=1852857.
Number of Pages in PDF File: 53
Date posted: December 9, 2011