'Uncivil by Too Much Civility'? Critiquing Five More Years of Civility Regulation in Canada
Dalhousie Law Journal (2013) (Forthcoming)
38 Pages Posted: 9 Dec 2012
Date Written: December 8, 2012
This paper revisits criticisms of the civility movement made in an earlier paper (“Does Civility Matter?” (2008) 46 Osgoode Hall L.J. 175). It argues that Canadian law societies remain concerned with lawyer incivility, even though bringing surprisingly few formal prosecutions against lawyers for incivility. In a few cases the law societies’ concern can be justified insofar as lawyer incivility in those cases appears to correlate with serious professional dysfunction. Generally, however, the focus on incivility is counter-productive. First, in several cases the focus on lawyer incivility elides the complex and difficult ethical issues raised by the behaviour of the lawyers in question. Disciplining lawyers for incivility when their conduct was substantively unethical avoids consideration of precisely why their conduct was improper, and ignores the implications of that analysis for the ethical duties of lawyers in general. Second, the civility movement envisages a narrow conception of the “good lawyer” and risks reifying a patrician model of advocacy. Finally, civility regulation has the potential to chill proper advocacy, particularly for vulnerable clients. Law societies who discipline lawyers for making the right argument in words that were poorly chosen, discourage what they ought to encourage.
Keywords: civility, legal ethics, professionalism, regulation
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