CBA Record November 2018

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

tration and Disciplinary Commission. In 2007 and again in 2014, the Commission on Professionalism conducted surveys of Illinois lawyers attempting to measure the prevalence of incivility or unprofessional conduct. Although the surveys did not show there was an erosion since 2007, the results were disappointingly similar. Most respondents view their peers’ behavior as professional, but 85% admitted they had experienced unprofessional behavior. In both surveys, the types of behaviors were clustered into three types 1) prejudice (ageism, racism, or sexism) reported by 9%; 2) rudeness (inappropriate interrup- tions, sarcastic or condescending attitude, swearing, verbal abuse or belittling lan- guage) reported by 38%; and 3) strategic incivility (playing hardball, e.g., not agree- ing to reasonable requests for extensions, inflammatory writing, frivolous use of pleadings, misrepresenting facts/negotiat- ing in bad faith) reported by 51%. Strategic incivility twists legal norms in an attempt to gain the upper hand and undermines the integrity of the legal system. The negative consequences of incivility are well documented in the Commission on Professionalism’s survey results. In the survey responses, lawyers readily acknowl- edge that incivility costs our clients more money, undermines efficient resolution of their legal matters, and harms public confidence in the judicial system. These are harsh indictments of a profession whose core mission is to deliver efficient and equi- table legal services that promote justice and uphold the rule of law. In addition, lawyers report that incivility makes the practice of law less satisfying. Recent surveys of lawyers’ substance abuse and mental health document this conclusion. Finally, slightly over half of the lawyers draw a connection between incivility in the profession and its lack of diversity. The Connection Between Civility and Diversity Many anecdotally speculate that incivility dis- courages women and minority lawyers from staying in the legal profession. In the Com-

civility is important to our democracy. In terms of the political influence on civility, the surveys confirm what we have experienced, i.e., that the election cycle of 2016 exacerbated incivility: in December of 2016, 75% of Americans agreed that incivility has reached crisis levels, a sig- nificant rise of 5% more than the 70% reported just eleven months before in January of 2016. The National Institute for Civil Dis- course (NICD) concluded that the 2016 campaign was one of the most uncivil in recent history and that it continues to degrade our political discourse. In a recent program on incivility sponsored by NICD, a panel discussed the fact that not only was the campaign of 2016 divisively uncivil, for the first time in history, incivility has continued since the election. The post- election experience has been markedly different than other elections, particularly the similar election events of 2000. In both the election of 2000 and the election of 2016, the winning presidential candidate

was determined by electoral college and the popular vote would have installed the candidate of the opposite party. Once the prolonged, emotional process was over, however, the population accepted the Bush v. Gore result and went back to their daily lives. They were not publicly excoriated or shunned for voting for the candidate of their choice. In contrast, during and since the election of 2016, everyday voters have been criticized and ostracized for their vote. Family relationships have been fractured and the foundation of our demo- cratic republic has been threatened by, for example, the #NotMyPresident recurring message. This is damaging to our society and to the legal , political and judicial sys- tems that are foundational to our society. Lawyer Incivility As for lawyers’ incivility, it is hard to pin down whether it has gotten worse over time. Incivility without some associated violation of the ethical rules historically has not prosecuted by the Attorney Regis-

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