Historically, the concept of civility has been bound up with undemocratic notions of hierarchy and deference. Using insights from studies of civility by social psychologists, linguists, sociologists, historians, and political theorists, this article advances the theory that the legal profession’s self-consciously isolating professionalism ideology allows judges and disciplinary tribunals to apply deference-based notions of civility in their decisions to sanction lawyers. This theory would predict that the lawyers most likely to be sanctioned for incivility and rudeness are those from whom society expects the most deference. To test this theory, the author conducted an empirical study of every available case during a ten-year period in which a court labeled the speech or behavior of a lawyer “uncivil,” “offensive,” or “unprofessional.” In each of these cases, the same judge or disciplinary tribunal made a subsequent decision: whether to impose some form of sanction beyond merely condemning the attorney’s behavior by labeling it unprofessional or lacking in civility. Statistical analysis of this database of 315 cases confirmed the predictive value of the theory: the lawyers in this data pool at the greatest risk of being sanctioned for incivility beyond condemnation in a reported opinion were those who represented individuals (rather than entities), spoke defiantly to judges, and were accused of making false statements about the qualifications or integrity of judges.
The article’s analysis of the Michigan Bar’s efforts to sanction well-known attorney Geoffrey Fieger for criticizing the judiciary, identifies other problems associated with the legal profession’s current approach to incivility. Framing these issues as primarily about attorneys’ rights to speak freely produces a doctrinal stalemate between professionalism’s laudatory goals of protecting the rule of law and the integrity of the judicial system, and their devastating First Amendment critique. The article suggests that the way around the impasse is for legal actors to be better informed by the concerns other disciplines have voiced about punishing citizens in a democratic society for being impolite, and to acknowledge the contingent nature of our judgments that certain speech or behavior is rude, impolite, offensiveness or disrespectful. The article concludes that making civility a more democratic norm requires greater restraint and respect. Unless a court’s ability to administer justice in a pending case is threatened, the government should refrain from legislating proper behavior and respect the rights of lawyers to use their freedom in ways some find inappropriate.
Amy R. Mashburn, Making Civility Democratic, 47 Hous. L. Rev. 1147 (2011), available at http://scholarship.law.ufl.edu/facultypub/257