FEATURE ARTICLE -
Issue 93: Sep 2023, Professional Conduct and Practice
Civility between Advocates in Adversarial Litigation
BY
Chris George - North Quarter Lane Chambers
994 Views
Tuesday 12th September, 2023
Civility between Advocates in Adversarial Litigation
Introduction
The relationship between civil or courteous dealings and good advocacy has long been recognised in the legal community.
However, a perceived decline in standards of civil behaviour between lawyers and their clients, opponents, the Courts, and the public generally, has been a recurring issue.
[T]here is no inherent inconsistency between the requirement for civility and the lawyer’s obligation to advance, within other ethical constraints, the client’s interest.
Background
There has been extensive discussion about the topic in American legal circles since at least the mid-1980s. In Queensland, the topic has been the subject of addresses by Judges of the Supreme Court to members of the legal profession in 2012 and 2014.[1]
Also in 2014, his Honour Justice Edelman said:
“It is necessary to make one final concluding comment on the manner in which this litigation continues to be prosecuted and defended. My comment concerns the importance of civility in the conduct of litigation. Modern litigation is far removed from the procedure and practices that were subjects of daily discussion between those counsel and judges sitting on the Benches of the Inns of Court and at the bar messes in the 19th century. The need for civility, from all participants in the legal process, is often forgotten today.”[2]
The above quotation expresses a reminder that, while the nature of legal practice might change with the times, some things remain the same; and the importance of civility in the conduct of litigation is one of them.
Various reasons for a perceived decline in standards have been advanced. One has been a shift in social norms. For example, in America, it has been said:
“Today our talk is coarse and rude, our entertainment is vulgar and violent, our music is hard and loud, our institutions are weakened, our values are superficial, egoism has replaced altruism and cynicism pervades. Amid these surroundings none should be surprised that the courtroom is less tranquil. Cardozo reminds us that judges are never free from the feelings of the times.”[3]
The rise of different and modern communication methods is another reason that has been advanced. Justice Philip McMurdo has said:
“One contributor has been technology. The medium of email is a particularly dangerous form of communication, because it permits the author, in the apparent security of his or her office, to type and send a message more quickly than its potential consequences can be considered. And email may prove not to be the worse medium, because for much the same reason, the use of social media could prove yet more dangerous”[4]
Still other reasons have been suggested. One reason is the increasing volume and complexity of the law that lawyers are required to know and apply. Another reason is the numbers of lawyers now practising. This may have a dual impact on how lawyers interact, firstly by reducing their capacity to have direct personal knowledge of one another; and secondly, by increasing competition between them for work. Yet another reason may be the possible “cultural” effect of more firms electing to operate in a corporate style rather than the more traditional style of partnership.
What is Civility?
Some may reasonably point out that the concept of “civility” is elusive and subjective. Perhaps for this reason, what constitutes civility in the context of legal practice has also been the subject of learned discussion. For example, Chief Justice Spigelman KC AC has said:
“… The core element of civility is the manifestation of respect for other persons. In the Western tradition, civility has long been accepted as a public virtue manifest in signs of respect to strangers in language, etiquette and in tempering the assertion of self-interest …
… All legal practitioners must, and generally do, treat judges, clients, witnesses and each other with respect. We must all ensure that proper conduct remains a principal characteristic of our legal discourse. Ours is a profession of words. We must continue to express ourselves in a way that demonstrates respect for others. …
“The tradition of civility in the legal profession goes well beyond the requirements of appearance in court. It is to be found in the full range of discourse between practitioners both oral and in correspondence.”[5]
Chief Justice Allsop KC AO has recently said:
“To maintain the public’s trust and confidence in our positions, which hold power and privilege, our actions must be in keeping with our words. …
Acting with justice and fairness also necessarily entails dignified politeness as a mark of respect for people’s humanity and entitlement to dignity. …
The maintenance of trust and confidence is an ongoing task which requires that not only the application of the law, but also the management of the court’s work, is just and has integrity and recognises the dignity of those who come before it.”[6]
It may be seen that the “core element” of civility encapsulated in the above quotation of Chief Justice Spigelman is showing, through words and conduct, respect for other people with whom lawyers deal. Further, while the requirement for civility in Court is a vital part of good professional practice, it goes beyond this and extends to the “full range of discourse” in which lawyers engage.
It may also be seen from the above quotation of Chief Justice Allsop that the overarching reason why civility is needed is simple, yet fundamentally important: it is to maintain the public’s trust and confidence in the lawyer’s role, which brings power and privilege.
The power and the privilege are the knowledge of the law, combined with the right of appearance in Court, to achieve legal outcomes that can have very serious consequences. The reality is that lawyers are important actors in the exercise of legal power, which is a power that parties to cases, and the public generally, may view with some trepidation.
An increasingly common form of discourteous behaviour seems to be the making of negative assumptions or casting negative aspersions about an opponent’s conduct or position where there is room for doubt.
Civility in the Adversarial Context
A legitimate question arises over whether there is a conflict between civility and the lawyer’s role to robustly advance a client’s case where needed. It is true that the adversarial context of litigation is a unique feature of legal practice. Lawyers are regularly called upon to perform in highly pressurised cases involving clients who are entrenched in disputes with deep levels of emotion. It is common for lawyers to act in cases having very serious consequences for clients and others.
The fact is that it is necessary for lawyers to find the balance between maintaining civil and courteous dealings and advancing clients’ cases. It is an often difficult and challenging context, but similar pressures are encountered by professionals in other areas.
Moreover, making sense of sometimes arguable and complex concepts is something lawyers do regularly. As Justice Philip McMurdo has said:
“… the term civility is no more problematical in its application than, say, negligence or unconscionability.
The content of civility, in the context of legal practice, is affected by the purposes which it serves. It is also affected by the concurrent legal and ethical obligations of the practitioner. Therefore there is no inherent inconsistency between the requirement for civility and the lawyer’s obligation to advance, within other ethical constraints, the client’s interest.”[7]
As Justice Philip McMurdo points out, there is no necessary friction between the obligations of civility and the purpose of advancing the interests of clients. Properly understood, courtesy serves that purpose. It has been said that:
“A lawyer can be firm and tough-minded while being unfailingly courteous. Indeed, there is a real power that comes from maintaining one’s dignity in the face of a tantrum, from returning courtesy for rudeness, from treating people respectfully who do not deserve respect, and from refusing to respond in kind to personal insult.”[8]
From the above, it may be suggested that there are ways to go about robustly advancing a client’s case on its merits. But adopting discourteous forms of conduct is not a valid way. Put in other words, this has been described as “descending” to rude behaviour:
“Lawyers may certainly advocate their client’s case with vigour, but they should not descend to rudeness or snide remarks directed against their professional colleagues …
It is the task of the lawyer to argue his or her client’s case in a reasoned and dispassionate manner, without descending into personal invective against the lawyers appearing for the other party. Vitriolic letters of this nature have no place in the practice of the law.”[9]
Examples of Incivility
In some cases, what amounts to discourtesy will be clear to most.
Discourtesy may arise in the language and tone used in dealings, especially correspondence. This includes language that is insulting, abusive, or foul in form or tone. Language that is discriminatory in all its recognised forms has no place in legal discourse.
Other examples include displaying sarcasm, exaggeration, impatience, and condescension. Wilfully failing to use appropriate manners, or mispronouncing names or titles are forms of disrespect. Referring to confidential or without prejudice communications in open correspondence is discourteous.[10]
The personalisation of correspondence is another area that may give rise to problems. For example, direct personal criticism of an opponent in terms of their competence, experience, education, or place of employment is inappropriate. So is seizing on mistakes and attempting to humiliate opponents on account of them.
An increasingly common form of discourteous behaviour seems to be the making of negative assumptions or casting negative aspersions about an opponent’s conduct or position where there is room for doubt. That is, their position or conduct may instead be reasonably explained by a genuine error or circumstances beyond their control.
The use of correspondence itself may be discourteous. Swamping an opponent with numerous letters or emails without valid reason is one example. On the other hand, not responding to correspondence where a response is reasonably required is another obvious form.
Sending correspondence outside of ordinary business hours or days without justification may also constitute an example of incivility in practice. It is without question that it is discourteous to communicate directly with a party who is known to be represented by lawyers.
Threats of personal costs orders or the making of disciplinary complaints for unethical conduct is undoubtedly inappropriate if done without a proper basis.
Other examples include misquoting an opponent or party or leaving out proper context to the situation being addressed. Deliberately misleading or causing confusion about a situation is also behaviour that is beyond the bounds of civility.
Some practitioners will have encountered correspondence that focuses in an overly pedantic way on matters of form, such as grammar and spelling; or adopts a style of over-using quotations from the correspondence being responded to.
Many of the above behaviours would also amount to discourtesy in the context of oral advocacy in Court. To these may be added: interrupting the Judge or opponents; ignoring conventions in relation to the order of speaking, or seating, including remaining seated while an opponent is addressing the Court or taking an objection; and wilfully failing to answer a question asked by the Judge. It is unacceptable to be discourteous to other Court staff, including registrars, associates, bailiffs, security personnel and registry staff.
Guiding Principle?
As seen above, some forms of conduct will always be inappropriate. But sometimes the issue may be less clear. In those cases, what can be used as a guiding “principle”?
It has been said by the Full Court of the ACT Supreme Court:
“… practitioners should, in the course of their practice, conduct their dealings with other members of the community according to the same principles of honesty and fairness which are required in relations with the courts and other lawyers namely, to take all reasonable care to maintain the integrity of the legal profession by ensuring that the practitioner’s communications are courteous and that the practitioner avoids offensive or provocative language or conduct.”[11]
On this analysis, the answer may lie in seeking to deal with others with the honesty and fairness that one would be required to display in Court. But this in no way is intended to enshrine an unattainable standard of behaviour that subordinates the need to appropriately advance a client’s interests. Indeed, legitimate criticism must sometimes be made of others in the course of practice, and those criticised may well regard communications containing such criticism as discourteous or provocative.
This has also been judicially recognised:
“However, it seems to us that that principle in no way diminishes the right, indeed the duty, of a solicitor to represent his or her client’s interest forthrightly and without fear or favour. … Such communications may well be regarded as discourteous and provocative [by those criticised] but, nevertheless, a subject that needs to be raised in the interests of the client as well as generally.”[12]
Accepting the relationship between courteous dealings and maintaining public trust and confidence in the legal system, it may be that the “principles of honesty and fairness” referred to in the above quotation are not confined to what lawyers think is honest or fair (or “normal”), but what the public is entitled to expect in the provision of legal services.
A useful observation is made by Justice Henry on this topic:
“… When ego driven, aggressive correspondence sees the light of day in court, it is an irritating distraction from a proper understanding of the merit of its author’s client’s cause.”[13]
The above quotation refers to correspondence seeing “the light of day in court”. Some practitioners may be aware of this touchstone for the appropriateness of correspondence; that is, would the author have any concerns if the correspondence about to be sent “sees the light of day in Court”? The same test could be usefully adapted to any form of professional conduct.
Deliberately misleading or causing confusion about a situation is also behaviour that is beyond the bounds of civility.
Civility and Good Advocacy
How does maintaining civil standards of behaviour accord with the task of being a good advocate?
First, the disapproval that flows from discourteous behaviour undermines the personal reputation of an advocate. It is recognised that a strong personal reputation is critical to good advocacy. Perhaps this is because a central aim of a good advocate is to be persuasive, and a key to being persuasive is to be reliable. Reliability partly depends upon reputation. Poor behaviour tends to become notorious generally, which has the potential to lower the opinions of others about the individual advocate, and the legal profession generally. It has been judicially observed that:
“Those members of the legal profession who seek to win a momentary advantage for their clients without observing the proper courtesies invite correction by the court and disapproval of their colleagues … To the extent that solicitors act in this way, they run the risk of destroying the confidence and mutual respect which generally distinguishes dealings between members of the legal profession from other dealings in the community.”[14]
This disapproval also has the potential to rob a practitioner of the feelings of enjoyment and self-worth that otherwise might come from legal practice. Conversely, approval has the potential to enhance these feelings, and the bolstering of the advocate’s personal reputation creates more opportunities for success as an advocate.
“… civility, which incorporates respect, courtesy, politeness, graciousness, and basic good manners, is an essential part of effective advocacy. Professionalism’s main building block is civility and it sets the truly accomplished lawyer apart from the ordinary lawyer.”[15]
Secondly, civility in practice is reflected in ethical rules governing the practice of law in Australia.
For example, the Barristers’ Conduct Rules are made pursuant to certain principles, including that barristers must maintain high standards of professional conduct. The rules are construed to promote principles such as this. However, the rules are not intended to be a complete code of conduct. Relevantly, they expressly provide that a barrister must not engage in conduct that is discreditable to a barrister or prejudicial to the administration of justice. Further, a barrister must not engage in conduct that is likely to diminish public confidence in the legal profession or administration of justice; or otherwise bring the legal profession into disrepute.[16]
Similar obligations are placed upon solicitors. There is a specific requirement in the Australian Solicitors’ Conduct Rules for solicitors to display courtesy in all dealings in the course of legal practice.
Other rules are relevant in this context. For example, a solicitor must not:
Make statements grossly exceeding legitimate assertions of rights or entitlements of clients.
Use tactics beyond legitimate advocacy or primarily designed to embarrass or frustrate.
Allege unethical conduct unless there is a proper basis.[17]
Numerous cases over time show that failing to meet the requirements of civil and courteous practice may breach ethical rules. Such cases are too numerous to mention here.[18]
Thirdly, civil and courteous practice contributes to the efficiency of the legal system, and the advocate personally. The benefit of civility to the functioning of the legal system has been recognised in legal commentary. For example, it has been said that:
“Civility is more than just good manners. It is an essential ingredient in an effective adversarial legal system such as ours. The absence of civility would produce a system of justice that would be out of control and impossible to manage: normal disputes would be unnecessarily laced with anger and discord; citizens would become disrespectful of the rights of others: corporations would become irresponsible in conducting their business: governments would become unresponsive to the needs of those they serve; and alternative dispute resolution would be virtually impossible.”[19]
Many practitioners may have experienced how discourteous behaviour can have a direct impact on the time and cost needed to conduct a matter. The reasons for this are manifold. It provokes a response from the recipient that may be unnecessary, or at least can generate lengthier communications than might otherwise be the case. Taking combative positions such as refusing to agree to reasonable extensions of time to take steps or manufacturing avoidable “urgent” situations are examples. This may provoke retaliatory or antagonistic responses from the recipient, which provokes yet another counter-response and the pattern repeats.
This pattern also increases the likelihood of interlocutory applications that might be avoidable. It decreases the willingness of parties to make appropriate admissions and concessions with the result that the disputed issues in the case are not narrowed, and the proceeding takes more days to hear and determine. These outcomes all escalate costs and delay.
Fourthly, courtesy enhances an advocate’s potential to assist the Court. Discourteous practice increases the potential for lawyers, and their clients, to receive criticism and reciprocal aggression from Judges, their opponents, their own clients, and other parties involved in a case.
Most advocates would agree that this type of practice creates additional stress and anxiety in the daily performance of the role. Undue stress and anxiety is obstructive to smooth performance as an advocate, and increases the likelihood of making errors, which in turn potentially attracts more criticism. Performing the role of an advocate can be stressful enough, so it makes sense to avoid any additional causes of it.
The net result of this is that it diminishes the potential for the advocate to perform the important function of assisting the Court; as well as satisfying the expectations of instructing solicitors and clients.
Fifthly, civility is conducive to being persuasive. This is because incivility in all its forms is grounded in emotion, and not logic or reason. It is a distraction from the display of logic and reason that are a key to persuasion.
Judges having to deal with incivility are distracted from consideration of the real issues, as noted by Justice Henry in the quotation above. It is not good advocacy to distract a Judge. Below is an extract from a case contained in a well-known text on advocacy, Glissan & Tilmouth, to similar effect:
“There began, almost from the commencement of the case, a wrangling or quarrelling or bickering between counsel, and it lasted throughout the case …
The training of one who is called to the Bar in this country is intended to help [them] to understand that a member of the Bar is a helper in the administration of justice. [They are] there to help the judge, and, when there is a jury, to help the jury, to arrive at a proper result in the dispute between the parties. If a case is conducted as this one was, the judge is deprived of the assistance which [they are] entitled to expect from counsel. Continuous bickering becomes a burden for everyone in court – for judge and for jury – and it is almost impossible for justice to be done if that goes on. …”[20]
As can be seen from the above quotation, the behaviour of the advocates was described by the Judge as a “burden for everyone”. What good advocate wants their work to be described in that way?
The distraction from logic and reason that emotion causes has been said to lead to the loss of objectivity that good advocacy requires:
“Resort to personal abuse leads to a loss of the objectivity that is necessary for proper legal representation, and results in distraction from the real issues in the client’s dispute.”[21]
Sixthly, courteous communications assist in resolving, or at least narrowing, disputes. An understanding of the parties’ mutual positions is promoted by constructive dialogue, and that dialogue is best cultivated by civil communications rather than aggressive attacks. These tend to escalate disputes and entrench defensive positions, which derogate from the likelihood of appropriate concessions being made that assist resolution.
In the will of Fay Daphne Butterworth [2022] QSC 212
Finally, avoiding unduly combative communications can help to achieve better outcomes for clients. A recent case of the Supreme Court of Queensland is illustrative.
A costs order had been made in a proceeding concerning two Wills. The Court determined a subsequent application that sought to alter that costs order, and sought the costs of the application to alter.
The only difference between the two Wills was that the first 2002 Will appointed two executors, being the testator’s daughter and a son-in-law; and the second, 2015 Will appointed only the son-in-law as executor. The Court observed:
“… a reasonable observer might conclude that there was little or no scope for dispute. That view underestimates the capacity of these parties and/or their lawyers to find conflict.”[22]
The substantive issues in the case related to the testamentary capacity of a testator. Those issues fully resolved, and the only remaining disputed issue concerned costs.
The parties embarked on a lengthy exchange of correspondence. It included correspondence with the following features:
Giving notice requiring a party for cross-examination two days prior to the hearing, but the notice was not pursued and the reasons for giving it were not explained.
Allegations of unnecessarily causing costs to be incurred, and of a party’s solicitors seeking to take advantage of a mistake and misrepresenting positions.
The provision of a draft order to the Court by a party without first obtaining the consent of the other party.
Nine emails being sent between a Friday and a Sunday and a request for the Court to list the application urgently.
Correspondence described by the Court as “combative” and referring to opponents in personal terms.
An understanding of the parties’ mutual positions is promoted by constructive dialogue, and that dialogue is best cultivated by civil communications rather than aggressive attacks.
In the event, the Court made the correction to the order that was sought but on the issue of the costs of the application the Court considered that there were some “special features” in the case, described as follows:
“… as can be seen from the rather sorry tale explained above, the parties have indulged in a combative correspondence featuring unsubstantiated allegations of poor professional conduct, pedantry, clinging to a non-existent agreement on costs, and an unwillingness to adopt a reasonable, practical stance. Of course, those features of the skirmishes may be because of the parties themselves are at loggerheads. Or it may be because the solicitors have an antipathy to each other. Or it may be both.
In my view, however, the stances taken on both sides can hardly be said to be reasonable or consistent with the obligation to proceed in an expeditious way. A reasonable approach by both parties and their solicitors would have resulted in a corrected order without the need for aggressive correspondence or a contested application. The stances taken by both sides have contributed to significantly increased costs. It would be unfair for the beneficiaries of the estate to be required to meet those costs, whether on a standard or an indemnity basis.”[23]
The Court declined to order that the parties’ costs of the application be paid out of the estate and instead the parties had to meet their own costs.
Conclusion
It is hoped that the above discussion demonstrates the strong link between civility and good advocacy, as well as providing some practical guidance about meeting appropriate standards in situations that may be unclear.
[1] Justice Henry, Ethical Issues in Correspondence Between Solicitors, address to the FNQLA, 2012; Justice Philip McMurdo, Civility and Professional Courtesy, QLS Symposium, 2014.
[2]Mineralogy Pty Ltd v Sino Iron Pty Ltd (No 4) [2014] WASC 282 at [59].
[3] Justice M Bolan, Issues of Civility in the Courtroom: The Role of the Trial Judge, 2001, cited in Justice JW Quinn, A Judge’s View: Things lawyers do that annoy judges; things that they do that impress judges,Family Law Institute, Toronto, 2012.
[8] Justice M Durant, “Views from the Bench: Civility and Advocacy”, (2001) Utah Bar J 35.
[9]Towers & Atkins (No. 2) [2015] FCCA 3537 at [58-59].
[10] Dal Pont, Lawyers’ Professional Responsibility, 7th ed, [21.145 – 21.285]; see also QLS Guidance Statements.
[11]Lander v Council of the Law Society of the ACT [2009] 168 ACTR 32 at [23] citing reasons of the ACT Legal Practitioners’ Disciplinary Tribunal.
[12]Lander v Council of the Law Society of the ACT [2009] 168 ACTR 32 at [36] citing reasons of the ACT Legal Practitioners’ Disciplinary Tribunal.
[13] Justice Henry, “Ethical Issues in Correspondence between Solicitors”, address to the FNQLA, 2012.
[14]Garrard v Email Furniture Pty Ltd (1993) 32 NSWLR 662 at 667 per Kirby ACJ.
[15]Butts v State 546 S.E.2d 472 (Ga.2001) per Benham CJ, Supreme Court of Georgia, USA cited in Civility and Professionalism – Standards of Courtesy, Office of the NSW Legal Services Commissioner, p 18.
[18] See for example the cases discussed in The Australian Solicitors Conduct Rules 2012 in Practice: A Commentary for Australian Legal Practitioners, QLS, pp 8 – 9; Corones & Ors, Professional Responsibility and Legal Ethics in Queensland, 2nd ed at [5.150 – 5.175].
[19] A Harris, The Professionalism Crisis – The ‘Z’ Words and Other Rambo Tactics: The Conference of Chief Justices Solution,53 SCL Rev 549, pp 577-578 cited in Civility and Professionalism – Standards of Courtesy, Office of the NSW Legal Services Commissioner.
[20]Beevis v Dawson [1957] 1 QB 195 at 201 cited in Glissan & Tilmouth, Advocacy in Practice 3rd ed at p 218.
[21]Legal Profession Complaints Committee v In de Braekt [2011] WASAT 1 at [139].
[22]In the will of Fay Daphne Butterworth [2022] QSC 212 at [3].
[23]In the will of Fay Daphne Butterworth [2022] QSC 212 at [59 – 60].
