Where is the line between incivility and zealous advocacy?
Fox: When it turns personal and when profanity comes out.
Salvi: Zealous advocacy allows for law- yers to ask questions, make arguments and file motions that perhaps are weak or novel or in good faith in an effort to change the law. But it does not allow actions that by any reasonable assess- ment would be out of bounds, like ha- rassment of a party or witness, or filing motions designed to delay.
Villinski: The Rules of Professional Conduct lay out what can be considered the baseline for an attorney’s behavior as a representative of clients, an officer of the legal system and a public citizen. The commission aims to promote at- torney behavior that goes beyond this baseline in service to improved access to justice and a commitment to elim - inate bias and divisiveness within the legal profession. Zealous advocacy includes repre- senting clients in a well-informed, fair, passionate and professional manner. Incivility, on the other hand, is demon- strating disrespectful and disagreeable behavior that detracts from the admin- istration of justice.
What could the legal community be doing better to tamp down on incivility?
Fox: Highlight the issue more. There should be stronger peer pressure among counsel to steer lawyers away from that type of conduct. Individuals can deal with it right when it happens; do not fes- ter over it and act later. If someone is rude to you, perhaps a response of “Not to be rude, but my take on this is that the chicken was already on the road before my client came over the hill.” If it contin- ues, ask the lawyer why they are being rude and uncivil to you. Most people do not realize in the heat of argument that they have crossed a line.
Salvi: The legal community should do its best to draw some bright lines where, if crossed, there will be strong penalties. Motions for sanctions should not be brought lightly, but those same motions should be seriously considered by judg - es and granted when attorney behavior must be addressed. The unfortunate truth for judges facing these motions is that granting them might be uncomfort- able, but at times, it is necessary to en- sure that lawyers know there are guard- rails to zealous advocacy.
Villinski: If incivility happens in the courtroom, other attorneys should speak up and address the bad behavior. Judges should also outline what is ex- pected in their courtroom and intervene when incivility occurs to let attorneys know that it won’t be tolerated. For example, Judge Michael J. Ch- miel of Illinois’ 22nd Circuit Court issued a series of standing orders that began with a section reminding parties and attorneys to engage in professionalism and civility in the handling of court cases and to confer on pending matters before their court date. There are penalties and enforcement for incivility, even disbarment. A recent example in Illinois is In re Felipe Nery Gomez . Attorney Gomez sent threaten- ing and harassing emails to seven attor- neys during pending litigation and was subsequently suspended from practic- ing law for three years.
CHICAGO DAILY LAW BULLETIN • LAW DAY 2023 17
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