A Role for Lawyers in Restoring Civil Discourse

The Bencher—March/April 2018

By Christopher T. Holinger, Esquire

Civil discourse is on the decline in America. Well-reasoned policy arguments are largely replaced by mutual insult, and unpopular ideas are shouted down rather than refuted. Lawyers committed to civility are in a unique position to be a positive influence on the national discourse. We should follow the model of civility espoused in our Rules of Professional Conduct not just at work and in the courtroom, but in all of our interactions with people who disagree with us. By modeling civil behavior, we can help restore civil discourse to the public square.

I spent the last three years of my Air Force career teaching national security strategy and operational planning to officers from all branches of the Armed Forces. When we put 18 aggressive, often combat-proven military leaders in one room discussing defense policy and how to solve complex problems, the conversations frequently became heated. To promote constructive discourse (as opposed to destructive conflict), we had one important ground rule: Attack the idea, not the person.

I encouraged my students to challenge each other’s ideas with sound reasoning and evidence, but no ideas were to be summarily dismissed. Although this was challenging and intellectually rigorous work, by the end of our 10-week course the vast majority developed profound respect for colleagues whose ideas and politics often diverged dramatically from their own. 

This ability to engage in constructive discourse, advocate for your own ideas, and challenge others’ ideas, while treating each other with courtesy and respect, seems to be rapidly disappearing from our culture, especially from politics. In honor of the American Inns of Court’s recent “National Conversation on Civility,” I propose that lawyers have a key role to play in restoring civil discourse to America.

The Decline of Discourse

The problem is all too easy to spot. One need only spend a few moments reviewing the comments on political websites of any stripe to see insult and invective being slung around in place of cogent argument. Ad hominem and name-calling abound, with insulting monikers like “libtard” and “dumbocrat” becoming so commonplace as to earn entries in the Urban Dictionary. In response, conservatives are “teabaggers” or “repugs.” During the Obama administration, the kindest reference to the president on many conservative social media outlets was “Obummer.”

Sadly, the name-calling doesn’t just come from private citizens. President Trump is infamous for tweets calling people who disagree with him “losers,” “dopes,” and “morons.” His critics hardly seem able to command the rhetorical high ground, with “reply” tweets about the White House being an “adult day care center” and near-endless accusations that the president is not just advocating bad policies, but that he is mentally ill.

Even if we get past the name-calling, serious discussion of complicated issues is getting harder to find. In a disturbing trend across academia, speakers with whom students disagree are routinely shouted down, assaulted, or even have their events cancelled in advance. In one extreme case last March, a mob of students at Middlebury College in Vermont first disrupted a speech by political scientist Charles Murray, then attacked him and Middlebury faculty member Allison Stanger as they attempted to leave the venue. Stanger ended up hospitalized with a concussion and whiplash and told her story of the incident in a well-circulated Facebook post and an opinion piece in The New York Times.

We seem to have lost our ability to disagree civilly, leading to unpopular speakers being silenced in the name of “public safety.”  This trend should bother us all.

Guiding Principles of Civility

What can lawyers do about this? Lawyers are uniquely equipped to promote civil discourse. We are professionally trained to make arguments, and the skilled use of logic is essential to our success. Our ethical obligations demand civil behavior toward each other and the courts we practice in. By living out these ethical principles beyond our professional role we can go a long way toward improving the tone of conversation in America. (I would like to clarify that I am not advocating the actual application of our binding Rules of Professional Conduct to behavior outside the professional setting. I’m merely pointing out that aspiring to live by the principles described therein would be a good example to society.)

The American Bar Association’s Model Rule of Professional Conduct 3.4 lays out standards for fair treatment of opposing counsel and their clients. In my home state of Virginia we have adopted a few extra comments, including one that states specifically that lawyers should not let ill feelings between their clients influence their “conduct, attitude, or demeanor towards opposing counsel.” Unfair or derogatory personal references to opposing counsel “have no proper place in our legal system” because they interfere with the administration of justice. 

Similarly, Model Rule 3.5 demands civility toward the courts we practice before, with specific rules designed to protect the impartiality of the court. Comment 4 to Rule 3.5 calls for lawyers to refrain from abusive conduct, to “stand firm against abuse by a judge,” but also to “avoid reciprocation.” Bad behavior by a judge is no excuse for a lawyer to respond in kind. This comment goes on to remind lawyers that we can make our case, preserve the record for review, and maintain our professional integrity by “patient firmness no less effectively than by belligerence or theatrics.”

I’m sure all of us would say we are committed to these ideas, but are we always committed to them—even outside the courtroom and our offices? Our Rules of Professional Conduct do not govern every aspect of life, and I am certainly not advocating that lawyers should be subject to professional discipline based on behavior in private conversations. I am suggesting that lawyers can improve the state of civil discourse in our nation if we aspire to live by these standards throughout our day.

The Virginia State Bar has also adopted a list of aspirational goals for professional conduct known as the Principles of Professionalism. Many other states have similar goals or guidelines beyond their Rules of Professional Conduct, such as Ohio’s Professional Ideals for Ohio Lawyers and Judges. Such principles provide an excellent lodestar, a source of guidance that can point us toward more civil discourse. Virginia’s Principles of Professionalism call on all lawyers to treat everyone “with respect and courtesy,” refrain from “inappropriate displays of emotion or unbecoming language,” avoid ad hominem attacks, and “avoid reciprocating any unprofessional conduct by opposing counsel.” Although originally drafted to apply in a professional context, these principles are equally applicable outside the workplace. One might even call them “common courtesy.” The following thoughts might sound like they were pirated from a grade-school conflict-resolution class, but if the current national mood is any indication we could all use a little refresher in “how to play well with others.”

What if the next time you had a visceral, emotional reaction toward someone advocating a political idea you disagreed with, you recalled Rule 3.4 and paused for a moment. What if, despite the temptation to do otherwise, you treated that person with the same respect and courtesy you would hope for if you were speaking out? What would happen if you listened carefully to what the person was saying the same way that you listen to an opposing counsel’s argument in court? Listening carefully and providing a measured response is much more likely to lead to a productive discussion, rather than destructive conflict.

What if the next time someone insulted you, or even just insulted some idea you agree with or candidate you support, you remembered Rule 3.5 and refused to respond in kind? A snappy comeback directed toward the speaker might feel satisfying, but would it lead to anything? You are not ethically obligated to hold your tongue in such a situation, but if you avoid reciprocating when someone treats you poorly, you can at least leave the door open for a future conversation. You might never win the person over to your point of view, but give yourself a chance to at least illustrate what constructive discourse looks like.

Restoration Starts with Us

I think lawyers can lead the way to restoring civil discourse in America just by practicing in our other civic interactions the same principles we are required to follow in our professional lives. We can lead our fellow citizens by our example or even teach them if they are willing to listen. So the next time you are commenting in your favorite online forum, chatting at the bar association happy hour, or just talking about the latest local or national issue around the barbecue with your neighbors, commit to being civil even if your audience is not. Listen. Be courteous and respectful. Avoid emotional outbursts. Resist the temptation to meet insult with insult or ad hominem with ad hominem. Ensure that your own ideas are supported with evidence and presented in a logically coherent way. Somebody has to start the long, slow process of restoring civil discourse to our politics. I know of no one better than a large group of skilled lawyers to start that trend.

Christopher T. Holinger, Esq., is a retired Air Force officer. After 23 years of service including combat tours in Afghanistan and Iraq, Holinger attended the Regent University School of Law, graduating with honors in 2017.  He is a clerk for Chief Judge Glen A. Huff of the Virginia Court of Appeals and a member of the James Kent American Inn of Court in Norfolk, Virginia.

© 2018 Christopher T. Holinger, Esquire. This article was originally published in the March/April 2018 issue of The Bencher, a bi-monthly publication of the American Inns of Court. This article, in full or in part, may not be copied, reprinted, distributed, or stored electronically in any form without the written consent of the American Inns of Court.