By Isabella Roman-Secor, 2L, Florida State College of Law
Civility is a core component of attorney professionalism.[i] An attorney has the obligation to be civil and courteous in all situations to ensure that the rule of law is upheld. Yet, there has been a drastic increase in incivility in the legal profession. Over 93% of Americans identify incivility as a problem.[ii] What is causing this increase in incivility?
To understand the context of the incivility problem, I interviewed Erika Harold, the Executive Director of the Illinois Supreme Court Commission on Professionalism (also known as 2Civility). Erika is an advocate for civility, empathy, and inclusion. She leads the Commission’s extensive educational programming focused on advancing professionalism among Illinois’ lawyers and judges to build trust and confidence in the legal and judicial systems.[iii]
Erika provides an important perspective on civility. During high school, she was a victim of severe racial and sexual harassment. This experience sparked her passion for advocacy. When she became Miss America in 2003, she made preventing youth violence and bullying her national platform.
Erika has firsthand involvement working with a variety of entities to change the public perception of what kind of behavior is viewed as acceptable.[iv] Moreover, Erika has transferred her passion for civility to the legal field.
Erika graduated from Harvard Law School, where she won a Boykin C. Wright Memorial Award for appellate advocacy in Harvard Law School’s prestigious Ames Moot Court Competition.[v]
After law school, she began her legal career as a litigation attorney.[vi] She described an inherent adversarial quality in the litigation arena because attorneys are zealous advocates for their clients. Research has revealed that some attorneys take the role of a zealous advocate too far and engage in bullying and harassment.[vii]
The lack of balance between civility and advocacy highlights one factor contributing to the incivility problem in the legal field. Lawyers must stand up for themselves, their clients, and their objectives in a manner that is civil. Incivility tends to prevent fair advocacy and pushes others to stop participating.
As the new Executive Director of the Illinois Supreme Court Commission on Professionalism, Erika’s mission is to further professionalism and improve the incivility problem.[viii] Throughout our conversation, we discussed several prominent issues.
Systemic Bias in the Legal Profession: Gender and Racial Bias
Women and people of color tend to be targeted with incivility disproportionately. The American Bar Association published a survey about systemic bias in the legal profession, revealing that 58% of women attorneys of color have been mistaken for administrative staff or janitors.[ix] These biases impact an individual’s ability to practice effectively and hinder the retention and promotion in an organization.[x] The legal field is supposed to promote the rule of law, due process, and equal protection under the law. When these values are not respected in the profession, it undermines the legitimacy of what lawyers do.
Erika shared that throughout her legal career, she has had numerous encounters with racial and gender biases.[xi] She specifically shared that while working at a previous firm, she attended a networking event where a client's chief executive officer mistook her for support staff. He handed her a giant stack of papers and told her to make copies. At the same time, all the other attorneys received a proper greeting.
At that moment, Erika had to make a tough decision. Was she going to make the copies or tell the chief executive officer that she was a Harvard-educated lawyer? Ultimately, Erika had the copies made because the chief executive officer would soon see her give a presentation to his firm and learn that she was an attorney. However, Erika emphasized that his behavior still would have been unacceptable even if she had not been an attorney, as everyone deserves to be treated with respect and professionalism.
Unfortunately, Erika’s story is just one out of the thousands that occur in the legal profession. So many attorneys encounter people who have a misconception about who can and cannot be a lawyer. These negative perceptions dictate clients’ thoughts on who is deemed qualified to take on their case.
To combat incivility, it is essential to change the negative perceptions because they have a real impact on individuals’ advancement in the legal profession. Everyone involved in the legal profession (including support staff) should be treated with dignity and equality because that is what the rule of law is about.
Social Media: The Rise of TikTok Lawyers
As social media expands, so do the platforms lawyers can utilize to advertise and provide advice. TikTok has provided a unique avenue for lawyers to make “educational” videos about certain legal concepts. However, there has been a rise in incivility on social media.[xii]
Some lawyers have neglected the Rules of Professional Conduct. There are advertising rules that govern how lawyers must communicate on social media. Lawyers must make sure they are not making misrepresentations about their expertise. The ramifications are significant because the Rules of Professional Conduct govern everything a lawyer does.
When the Rules of Professional Conduct are followed, Erika remarked that “social media can be a powerful source of good.”[xiii] TikTok is a serious marketing platform with over 800 million monthly active users.[xiv]
Lawyers are seen as leaders in their communities, so they must portray professionalism in all situations. Even if a lawyer does not post about the practice of law, they are still a representative of the profession. Lawyers must represent the rules of professionalism 24/7.
Educating Future Lawyers
To reduce incivility in the legal profession, future lawyers must receive proper resources and education about the Rules of Professional Conduct. Law school is the starting point for every lawyer because it is where they form their professional identity.
Erika described that the Illinois Supreme Court Commission on Professionalism participated in law school orientation events at each of Illinois’s nine law schools to introduce all 1Ls to the principles of professionalism and lead them in a pledge, in which they promise to practice these principles in law school and beyond.[xv]
These 1Ls were receptive to practicing civility and integrity. Professionalism and ethics should be taught and celebrated in law schools to prepare future lawyers for the legal profession. Professionalism encompasses a wide variety of concepts. The Commission also provides guidance and support to first-generation law students and those from underrepresented backgrounds in navigating some of the unique challenges they may face in law school and the legal profession.
Mental Health: Overcoming the Negative Stigma
One of the most prominent reasons why lawyers behave uncivilly is connected to stress and lack of work-life balance. Over 71% of lawyers struggle with anxiety, 37% struggle with depression, and 30% struggle with substance abuse.[xvi] Even though most lawyers struggle with mental health, relatively few seek assistance.
When I asked Erika about mental health in the legal field, she elaborated on a fundraiser she attended for the Illinois Lawyers’ Assistance Program that focused on wellness, addiction, and substance use for lawyers. Many lawyers struggle with the stigma of receiving help for mental health. Erika noted that the Commission on Professionalism desires to emphasize that “it is a sign of strength and self-awareness to take care of yourself by seeking help.”[xvii] A lawyer will not have much to give their clients or colleagues if they do not prioritize themselves.
Connecting the Issues of Incivility
All these issues of incivility are connected because professionalism is a broad field. Lawyers cannot view the issues from an individualized perspective because they are all interconnected. When looking at a lawyer who embodies professionalism, it is a lawyer who acknowledges their biases, represents dignity all the time, even on social media, and one who prioritizes mental health.
[i] Jayne R. Reardon, Civility as the Core of Professionalism, American Bar Association (Sept. 18, 2014), https://www.americanbar.org/groups/business_law/publications/blt/2014/09/02_reardon/. [ii] Weber Shandwick, Powell Tate, and KRC Research, Civility in America 2019: Solutions for Tomorrow, https://www.webershandwick.com/wpcontent/uploads/2019/06/CivilityInAmerica2019SolutionsforTomorrow.pdf [iii] Erika Harold, Executive Director, 2Civility, https://www.2civility.org/about/our-team/erika-harold/. [iv] Andrew Harris, Erika Harold: From Miss America to Harvard-educated Attorney, 10 WGN Radio (May 15, 2022), https://wgnradio.com/karen-conti/erika-harold-from-miss-america-to-harvard-educated-attorney/. [v] Erika Harold Appointed as Executive Director of Commission on Professionalism, 2Civility (March 22, 2022), https://www.2civility.org/erika-harold-appointed-as-executive-director-of-commission-on-professionalism/. [vi] Id. [vii] Jayne Reardon, Bullying Does not Pass for Advocacy in Illinois, 2Civility (Jan. 27, 2022), https://www.2civility.org/bullying-does-not-pass-for-advocacy-in-illinois/. [viii]Erika Harold Appointed as Executive Director of Commission on Professionalism, 2Civility (March 22, 2022), https://www.2civility.org/erika-harold-appointed-as-executive-director-of-commission-on-professionalism/. [ix] Systemic bias in legal profession confirmed by new report, American Bar Association (Sept. 6, 2018), https://www.americanbar.org/news/abanews/aba-news-archives/2018/09/new-study-finds-gender-and-racial-bias-endemic-in-legal-professi1/. [x] Id. [xi] Interview with Erika Harold,Executive Director of the Illinois Supreme Court Commission on Professionalism (Sept. 27, 2022) (notes on file, Henry Latimer Center for Professionalism). [xii] Leila Bijan, Six Ethical Pitfalls to Avoid on Lawyer TikTok, JDSupra (Sept. 30, 2021), https://www.jdsupra.com/legalnews/six-ethical-pitfalls-to-avoid-on-lawyer-9601327/. [xiii] Interview with Erika Harold, Executive Director of the Illinois Supreme Court Commission on Professionalism (Sept. 27, 2022) (notes on file, Henry Latimer Center for Professionalism). [xiv] Nina Lee, Should My Law Firm be on TikTok?, The National Law Review (Oct. 14, 2022), https://www.natlawreview.com/article/should-my-law-firm-be-tiktok. [xv] Marin Mccall, Illinois 1Ls Pledge to Professionalism in Annual Professionalism Orientations, 2Civility (Sept. 16, 2022), https://www.2civility.org/illinois-1ls-pledge-to-professionalism-in-annual-professionalism-orientations/. [xvi] ALM 2021 Mental Health and Substance Abuse Survey, The American Lawyer (May 3, 2021, 5:00PM), https://www.law.com/americanlawyer/2021/05/03/the-legal-industrys-mental-health-problem-grew-in-2020-our-survey-shows/. [xvii] Interview with Erika Harold, Executive Director of the Illinois Supreme Court Commission on Professionalism (Sept. 27, 2022) (notes on file, Henry Latimer Center for Professionalism).