CBA Record November 2018

Y O U N G L A W Y E R S J O U R N A L

initiatives appear to be more politically expedient or rhetorical than substantive. Incivility in Politics Any period of history where there has been intense political conflict, you find severe breaches in the prevailing civility code. One of the most notable images of political incivility occurred in 1856 when pro-slavery congressman Preston Brooks of South Carolina went into the senate and beat Senator Charles Sumner of Mas- sachusetts, an ardent abolitionist, with his cane, nearly killing him. And although Martin Luther King is now credited with promoting peaceful protests, at the time, civil disobedience and protest was not considered civil. In fact, many across America experienced that action as gross incivility. Similarly, the intense political conflict during and since the 2016 election cycle exemplifies new breaches in the civility of our society. We have a President who exemplifies a manner of expression far dif- ferent than the measured reserved style of his predecessors. It seems we also have new types of behaviors expressed by everyday citizens confronting political figures in the public square, restaurants and the halls of Congress. Survey results support our feel- ings that political discourse has become more uncivil. The connection between the politics of 2016 and general incivility in our coun- try has been documented in Civility in America: A Nationwide Survey conducted by Weber Shandwick and Powell Tate, in partnership with KRC Research. The survey, conducted each year since 2010, asks citizens about their experiences and viewpoints of civility. The definition of civility used each year is: “polite and respectful conduct and expression.” In 2018’s survey, Americans continued to report a severe civility deficit in our nation, with a vast majority–93%–identi- fying a civility problem in society, and most classifying it as a major problem (69%). Half of Americans expected civility to get worse, but nearly all (92%) believe that

that while representing a client, lawyers are expected to show respect for the legal system (Cmt. 5) and should further the public’s understanding of and confidence in the rule of law and the justice system (Cmt. 6). The Preamble also acknowledges that sometimes conflicts arise among a lawyer’s duties to her clients, to the legal system, and to the lawyer’s own interest. Lawyers are advised to resolve such con- flicts through the exercise of discretion and judgment, “[w]hile maintaining a professional, courteous and civil attitude toward all persons involved in the legal system (Cmt. 9). Some lawyers say they have a duty of zealous advocacy that is incompatible with conducting oneself civilly. “Zealous advocacy” does not appear in the black letter of the Rules. Rule of Professional Conduct 1.3 compels “reasonable diligence and promptness in representing a client.” Comment 1 to the Rule clarifies the depth of that duty, noting that a lawyer should “act with commitment and dedication to the interests of the client and with zeal in advocacy upon the client’s behalf.” (Rule 1.2 Cmt. 1). This may be where the image of lawyer as zealot, both partisan and combative, comes from. But the same comment dispels that approach, going on to state: “A lawyer is not bound, however, to press for every advantage that might be realized for a client….The lawyer’s duty to act with reasonable diligence does not require the use of offensive tactics or preclude the treating of all persons involved in the legal process with courtesy and respect.” There are no no counterpart civility rules for becoming a member of congress. Members of congress, after being duly elected, are sworn by oath or affirmation to uphold the Constitution. Over the years, members of Congress have announced various civility initiatives. For example, in January of this year a democrat and repub- lican fromOhio created the Congressional Civility and Respect Caucus with the goal to encourage all members of Congress to act with civility and respect. So far, these

Just as disagreement does not equate to incivility, the presence of civility does not mean the absence of disagreement. In fact, underlying the code of decency or respect is the assumption that people will disagree. The democratic process thrives on dialogue and dialogue requires disagreement. Civility is not the same as liking someone . The duty to be civil toward others does not depend on liking the other person. It doesn’t even necessarily require knowing the other person. Civility compels us to show respect even for people we do not like and strangers who may be sharing our space, whether in the public square, in the office, in the courtroom, or in cyberspace. Civility cannot be equated with politeness or manners alone. Although impoliteness is almost always uncivil, good manners alone are not a mark of civility. Politely refusing to serve someone at a lunch counter on the basis of skin color, or cordially informing a law graduate that the firm does not hire women, is not civil behavior. Civil deportment is baked into lawyers’ bar admission standards. The Illinois Board of Bar Admissions Committee on Character and Fitness will recommend a candidate be admitted only if the applicant’s record demonstrates that he or she justifies the trust of clients, adversaries, courts, and others with respect to the professional duties owed to them. Language in the Illinois bar application requires every applicant to “conduct oneself with respect for and in accordance with the law and Rules of Professional Conduct, the ability to conduct oneself diligently and reliably in fulfilling all obligations to clients, attor- neys, courts, creditors, and others and to conduct oneself in a manner that engenders respect for the law and the profession .” In other words, civility is a requirement for receiving a law license and sometimes for retaining the privilege of practicing law. Once admitted to practice, lawyers are guided by language in the Preamble to the Rules of Professional Conduct which states Is There a Different Requirement for Lawyers and Politicians?

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