Last updated Oct. 2024

As a lawyer, you are often required to balance competing obligations. Civility is a professional obligation that can be difficult to understand and apply in practice. On one hand, you are required to advocate resolutely for your client and raise every issue that will help your client’s case. At the same time, you are required to be civil, courteous and act in good faith, and you must conduct yourself in a manner that maintains public confidence in the legal profession. Civility is not only a professional obligation owed to your clients, opposing counsel and parties, the courts and all other persons with whom you have dealings (Code of Conduct, Rule 5.1-6); it ensures that the legal process, despite its adversarial nature, functions smoothly without unnecessary distractions.

Defining civility is difficult and context-dependent, but at the very least it should be understood as treating others with courtesy, dignity and respect. This does not mean that you need to accept unreasonable demands or make concessions that compromise your client’s interests: Your primary obligation is to fearlessly advocate for your client (Rule 5.1-1). However, fearless advocacy does not override your competing obligations, and you must balance commitment to your client’s cause with your duty to act with civility.

It can be illustrative to define civility in the negative, by reference to conduct considered to be uncivil. The Supreme Court of Canada in Groia v Law Society of Ontario, 2018 SCC 27 [Groia] identified the following examples of incivility:

• “overly aggressive, sarcastic, or demeaning courtroom language” (para 64);
• “constant allegations of impropriety” (para 65);
• “disparaging personal attacks from lawyers” (para 66); and
• “inappropriate vitriol, sarcasm and baseless allegations of impropriety” (para 67).

Other adjudicators have characterized the following forms of conduct as uncivil:

• making “discourteous and accusatory” remarks about the self-represented litigant (Law Society of Alberta v Forsyth-Nicholson, 2013 ABLS 24, para 41);
• personal attacks against a newly appointed judge and a bad faith public criticism of the judicial appointment process (Law Society of Alberta v Rauf, 2021 ABLS 3 [Rauf] para 200); and
• letters to a self-represented party that she considered were “patronizing, provocative and insulting” (Lanning (Re), 2009 LSBC 2, para 13).

While related, a finding of incivility is not identical to legal contempt of court. The lawyer’s words and tone, as well as their manner and frequency, are relevant to a finding of incivility. For example, a pattern of rude, provocative or disruptive conduct by a lawyer may constitute incivility, even if it would not necessarily support a finding of contempt (Rule 5.1-6).

Some critics of civility requirements argue that it may hinder a lawyer’s duty to their client, but these two concepts need not be mutually exclusive: Effective counsel are persuasive in a manner that conveys courtesy and respect, while impassioned and reckless advocacy can be detrimental to a client’s cause. In Groia, the Court stressed the importance of civility in the courtroom and explained that uncivil behaviour detracts from the proper administration of justice, as it:

• can prejudice a client’s issue;
• is distracting, as a lawyer is forced to defend against personal attacks or baseless allegations;
• adversely impacts other justice system participants as, for instance, judges have to turn their attention away from the issues; and
• erodes the public confidence in the administration of justice.
  (Groia at paras 64-67)

While Groia considered civility in the context of the courtroom, these same principles can be applied to your conduct outside of the courtroom (see Rauf at para 65). For example, hostile communications with opposing counsel may distract you from the issues and prevent timely resolution of a legal matter. Rudeness and disrespect can also erode your client’s confidence in the solicitor-client relationship as well as the administration of justice.

Overly zealous advocacy is often not persuasive and can backfire. It is important to remember that the people you deal with as a lawyer, including judges, are just human, and your demeanor can impact both your client’s case as well as your reputation. If serious enough, uncivil conduct may constitute professional misconduct. In such cases, lawyers may face disciplinary action, including a fine, reprimand, suspension, hearing costs or even disbarment.

Civility is also relevant to health and well-being. The role of a lawyer is often stressful and incivility can increase negative emotions and burnout. Lawyers can diffuse tensions and decrease hostility by practicing in a more civil manner. It may feel right in the heat of the moment to respond to a pushy client or an aggressive opposing counsel in a cutting manner, but in the long term this may do more harm than good. In such situations, lawyers should strive to apply the golden rule — “treat others as you want to be treated.”

Below are some examples of best practices for maintaining civility.

When engaging with clients

• Use courteous and professional language in all communications with clients.
• Treat clients with empathy and compassion and practice active listening to comprehensively understand their concerns.
• Maintain open communication with clients. Inform them of the reasonable course of action and decline any asks which could lead to ethical or legal consequences for you.
• Be forthcoming with clients about legal fees and costs to avoid potentially heated conversations later.
• Model civility for colleagues at your firm and require them to practice courtesy and respect with your clients and their own.

When engaging with opposing counsel

• Limit the adversarial tone: you don’t need to pick a fight on every single issue that arises on a file. Even when you encounter a serious disagreement, communication with opposing counsel should be in a professional tone, whether in person, over the phone or e-mail.
• Strongly reconsider sending any intemperate or volatile correspondence to opposing counsel. Wait to send an email that might be construed as belligerent or uncivil until you’ve cooled down and taken the opportunity to reconsider the language and tone.
• When dealing with aggressive opposing counsel, avoid responding in kind. Focus on the merits, not the emotions.
• During proceedings, counsel should not make baseless accusations of impropriety against opposing counsel.
• Refrain from making ill-considered, gratuitous, derogatory or uninformed comments about opposing counsel to your clients or other people you deal with.
• Treat self-represented litigants with the same respect and courtesy as you would opposing counsel.
• Provide assistance to self-represented litigants, in accordance with Rule 7.2-12, and inexperienced opposing counsel if doing so advances the case forward and does not conflict with your duty to your client or result in extra costs.

When engaging with the Court

• The Code of Conduct requires counsel to treat the Court with candour, fairness, courtesy and respect. Failure to do so may bring the administration of justice into disrepute.
• Educate your clients on proper courtroom behaviour and etiquette.
• Refrain from conduct that may distract the Court from the issues at hand.
• Don’t make insulting remarks against members of the judiciary or unfairly criticize judicial decisions in your public statements.
• Treat witnesses with respect and avoid abusive or intimidating tactics.
• Afford the same courtesy and respect to the court staff as you would to the judge.