Lawyer incivility, both in the office and in the courts, is the lead in our pipes.
Beyond the merits of the case, the debate sparked by l’Affaire Groia before the Law Society of Upper Canada has outed a culture of aggression within our profession. What is effective lawyering? When does it become abuse? Do you feel reluctant to talk about the subject with your senior colleagues? What we make of the discussion will help shape the occupational environment for lawyers for a generation. At the heart of the professional conundrum lie the primacy of legal intelligence and the competition for demonstrating it.
Being smarter than you — nothing else matters
It is no secret some of us are brighter than others. Inevitably, like HAL, the runaway computer in 2001: A Space Odyssey, a few of the very smart lawyers have also learned to switch off the neural pathways of their frontal lobes devoted to social behaviour. Where smarts equate to power, so the thinking goes, civility is for losers. Below them, some lawyers try to ape their gold-medallist colleagues. While desperately trying to gain recognition for their legal IQ, many fail to see they are pressing the button labelled “testosterone,” by mistake.
Welcome to the beastly, manic world of legal bully-savants, and their acolytes. The smart school kids who show off their ability to recite p to the 200th digit are quirky and socially awkward, but mean no harm. In comparison, the legal bully-savant will demonstrate how exponentially small he can make his colleague, or a member of his support staff, feel.
Why they thrive — there’s a market for them
They are often too “good” to let go, but too dangerous to expose to a firm’s valued clients. After becoming partner, they would suffer ever-frequent bouts of outrage directed at support staff and junior lawyers. Like moths to the flame, juniors continue to work with the office bully-savant, either as a mark of self-sacrifice or in hope that some of what he has might rub off.
In search of answers, I turned to medicine, a profession also known for its share of smart and socially awkward members. Historically, the pantheon of doctors included those who cured illnesses. The public may have valued them for the lives they saved. Within certain quarters of the healing profession, patients remain their fodder in the battle against disease — although not against infectious Nobelitis. The public generally tolerates medical arrogance because the ordinary customer-service equation is turned on end. Who needs bedside manner? Cure me!
Medicine, the body of professionals devoted to the conquest of what ails us, is organized in principle as a collaborative discipline. That means ego, technical expertise, and social norms collide daily in the clinics and hospitals of our land.
Take, for example, the story of Dr. G., a most brilliant clinical researcher at a major Toronto hospital. During a drug controversy, he sent anonymous harassing letters to colleagues and then denied having done so. The College of Physicians and Surgeons of Ontario’s investigators found traces of his DNA on the letters, and he had to admit authorship of the letters. In the end, his peers ultimately vindicated him in the underlying scientific controversy, and this has enabled him to salvage his reputation in the medical community. That community still valued him for his work. The shock of having his sociopathic side displayed in public changed him. The runaway computer needed a reboot.
One might argue that, in medicine, there is no competition for clients. If doctors chased ambulances, the public would in fact welcome it (instead, the ambulances come to them). Great innovators in medicine have been known to be deficient in social graces, or at least the alpha-docs like to perpetuate that myth. The competition for research grants and patient referrals brings out the best and worst in them. But the Dr. G. controversy proved medicine, too, imposes social and political limits on extra-clinical behaviour toward colleagues.
In law, the market can also be a sleeping policeman. We, too, have tolerated some antisocial conduct, and made some of it even the stuff of legend. While he or she is producing results for the clients and raising the profile of the firm, the uber-lawyer will remain, for the most part, untouchable. There is a certain tolerance for incivility as long as the individual succeeds.
If you read the late justice George Finlayson’s biography of his mentor, J. J. Robinette, you get the sense that there was a time in the Canadian legal profession when lawyers knew how to steer themselves between the cut and thrust of law, on the one hand, and the bar’s social graces, on the other. There is necessarily a great deal of mythology at work. At one time, clients flocked to tough-guy lawyers. It paid to be a bully, both in the courtroom and in the boardroom.
The demise of the legal titans, or their reincarnation?
Is there hope for us yet? Yes — you are it. The market for lawyers is changing into a much more social profession. Lawyers must not only seal deals and win court cases. The ends no longer justify the means, because the means are becoming the ends. Deals and court cases are more and more about process, quality of negotiation, and repeat interaction.
Ask most corporate clients, and you will hear that the gunslinger model of the lawyer is no longer in favour. Indeed, in consumer law, few Canadians can afford a contest between legal eagles. Sophisticated clients require peacemakers delivering value, not warriors whose aim is no longer true. The evolution of the law as a more integral, less aloof, part of society and the mainstream economy will mean law firms will value a different kind of intelligence than in the past. Smart need not mean antisocial.
As a new lawyer, you will have first-hand experience of the profession’s struggle with this transformation. One by one, we are rebooting our HAL computers. Every day, bully-savants are making efforts to switch their frontal lobes back on, if only to maintain their professional standing. They have discovered, later in their careers, being bright and talented does not mean demonstrating others are less bright and less talented. Indeed, once they make the discovery, they reach the next stage of their development as lawyers and become great mentors.
