By K. Elhatton-Lake
Does civility matter in the practice of law? On March 6, 2014, The Hon. Madam Justice Katherine Swinton challenged the audience, at the Program on Ethics in Law and Business lunch time session on "Revisiting the Civility Debate," to consider how the legal profession should approach the incivility among its members.
Justice Swinton is a former professor at both Osgoode Hall and the University of Toronto Faculty of Law and has served as an adviser to federal and provincial governments on issues of constitutional law and federalism. In 1997, she was appointed to the Ontario Court of Justice (General Division). She is a distinguished visitor with our Faculty this year.
The debate on civility in the profession has been a growing one, with over 100 judicial complaints in the past year, although Justice Swinton was quick to note that none have resulted in a finding of professional misconduct. The discussion centered around two articles by Alice Wooley[1] and her criticisms of law societies’ involvement in disciplining lawyers for incivility on the basis that it may undermine the law societies’ regulation of lawyer's ethics, it may impact a lawyer's ability to zealously represent their client, and incivility is too vague a concept to let lawyers know what their ethical duties are.
Audience members asked a number of questions ranging from the role of judges in dealing with a lawyer’s incivility, the position judges are placed in when lawyers are uncivil, and the role lawyers are put in when confronting the state. Justice Swinton added another dimension to the debate with her observation that, unlike judges, administrative tribunals may have very few tools to penalize or deal with incivility. Mentorship, instead of punishment, was also considered as a way of pro-actively ensuring civil behavior from its members.
[1] “Uncivil by too much civility’? Critiquing Five More Years of Civility Regulation in Canada” (2013) 36 Dal. L.J. (forthcoming) and “Does Civility Matter?” (2008) 46(1) Osgoode Hall LJ.
