Civility and its importance are contested in the Canadian legal profession and the Canadian legal academy. [1] Moreover, civility and the broader concept of professionalism have a shameful history as exclusionary concepts with significant negative impact on the ability of members of equity-seeking groups to join the legal profession and succeed in the practice of law. [2] The contemporary complexities of civility and professionalism remain problematic.[3] And even at its pinnacle, the civility movement had its critics as well as its supporters.[4] In the aftermath of Law Society of Upper Canada v Groia, the movement may not be dead but it has certainly been tempered.[5]
Nonetheless, even against that backdrop, civility and professionalism are – and should be – recognized as being necessary and desirable in law school education. On top of these the broader definitional and normative debates,[6] there is a more basic question for legal education: what does it mean to teach civility and professionalism? In this post, I consider whether civility is best approached as knowledge, as a skill,[7] or as a conduct issue – or some combination of those three. I conclude that there is a defensible and important pedagogical basis for including and assessing civility and professionalism as a skills-based learning outcome in law school education.
The National Requirement
A fair starting point for this discussion is the National Requirement of the Federation of Law Societies of Canada. It includes “Legal Ethics and Professionalism” as a discrete “competency requirement”.[8] This requirement is broken down into two parts, knowledge and skills. The knowledge part includes the following reference to civility:
the relevant legislation, regulations, rules of professional conduct and common or case law and general principles of ethics and professionalism applying to the practice of law in Canada. This includes familiarity with … the importance of professionalism, including civility and integrity, in dealing with clients, other counsel, judges, court staff and members of the public.[9]
The amended National Requirement, which will take effect in 2029, is less specific and, although it does not explicitly mention civility or professionalism specifically, it does retain general language that would encompass civility and professionalism:
the relevant legislation, regulations, rules of professional conduct and common or case law and general principles of ethics and professionalism applying to the practice of law in Canada … [and] the nature and scope of a lawyer’s duties including to clients, the courts, other legal professionals, law societies, and the public.[10]
The skills part is less specific and merely references “[s]kills to: … identify and make informed and reasoned decisions about ethical problems in practice; and … identify and engage in critical thinking about ethical issues in legal practice.”[11]
The more general Skills Competencies do not mention civility and professionalism specifically. However, whereas the original National Requirement included “the ability to… communicate clearly in the English or French language”,[12] the revised version includes a reference to professional communication, i.e. “the ability to … communicate clearly, professionally and effectively in the English or French language”.[13]
Under this scheme, it appears that civility and professionalism are characterized as a knowledge item, not a skills item, with the exception under the FLSCNR 2024 of “the ability to … communicate … professionally”.[14] The skills part does not specifically mention civility or professionalism, and seems to merely require students to be able to “identify and make informed and reasoned decisions” and “identify and engage in critical thinking” about, among others things, civility and professionalism. But it seems clear that it is one thing to know what civility and professionalism require, to “identify and make informed and reasoned decisions” about them, and to “identify and engage in critical thinking about them” – but another thing to exhibit them in practice.[15]
For example, it seems very likely that a lawyer who “challenged [their] client to a fight at the [local] courthouse”[16] had the objective and reasoned knowledge that such a challenge was problematic, but lacked the ability and skill to apply that knowledge in the moment. It would appear that civility and professionalism as unapplied knowledge would be ineffective. Indeed, Harry Arthurs argues that “[t]here is in fact no demonstrated connection between instruction in legal ethics and ethical behaviour. Unethical behaviour seldom results from lack of knowledge about what is right or wrong”.[17] In parallel, civility and professionalism solely as an intuitive skill ungrounded in knowledge may also be insufficient.
Understandably absent from the National Requirement is an understanding of civility and professionalism as issues of conduct and misconduct. While expectations of law students may rightly be lesser than those applicable to licensed lawyers, it is certainly possible to include civility and professionalism in binding or non-binding codes of conduct for law students.[18]
Teaching Civility and Professionalism in Law Schools
For better or for worse, civility and professionalism are recognized as a necessary component of a legal education. What does this mean for education in law schools?
As a starting point, it could be defensible to argue that civility and professionalism, at least as skills, should be left to the licensing process.[19] Under this approach, law schools can and should teach the meaning of civility and professionalism, including the relevant black-letter law and professional conventions around them, but leave the development and application of the skills themselves to law societies.[20] However, this approach seems inconsistent with the growing emphasis on experiential learning in Canadian law schools. Moreover, the somewhat controlled environment of law schools may be a powerful and necessary starting point before law students enter the legal profession, not only for knowledge but also for skills.[21]
If law schools do teach civility as a skill, in what course or courses should it be taught? While the knowledge could be primarily centered in a mandatory legal ethics course, the detailed content prescribed for such a course by the National Requirement makes it likely to be taught as a large exam-based course,[22] which does not lend itself to skills development. (This is perhaps the best explanation for why the competencies in legal ethics focus on civility and professionalism as knowledge rather than as skills.) The skills could instead be included across experiential and clinical courses.[23] They could also be included in less obvious courses, such as legal research and writing.[24] Laurel Rigertas argues that the first year of law school should focus on civility in the classroom, with the upper-year curriculum extending it to other environments.[25]
The elephant in the room is assessment. As a required skill, civility and professionalism would almost certainly have to be assessable. However, given the persistent exclusionary and otherwise problematic aspects of the concepts of civility and professionalism, it is far from clear what an appropriate, objective, and defensible assessment would look like – or if it is even possible.[26] Exam-based assessment would seem to emphasize civility as knowledge over civility as skill.[27] What about other methods? Returning to the example above, it would seem unobjectionable and uncontroversial to give a lower mark or a fail to a student who challenged another student to a fistfight in the course of a lecture or experiential course – or, goodness forbid, a student who so challenged a real client in a clinical course. But refraining from fistfights is surely a much more a negative definition of civility than a positive one. Neither would it be meaningful to reduce civility and professionalism to attendance and meeting deadlines.[28]
My view is that, insofar as legal ethics is assessable as knowledge, and law schools assess other skills, it is unclear why legal ethics skills assessment is a bridge too far. Obviously, it must be done in a way that is conscious and deliberate.
Conclusion
With great respect to the Federation, the National Requirement is problematic in its emphasis – intentional or otherwise – on civility as knowledge as opposed to a skill. There is a defensible and important pedagogical basis for including and assessing civility and professionalism skills as a learning outcome in legal education in law schools. Failing to do so puts law students at a disadvantage in future practice. That does not mean that civility and professionalism education should end in law schools. Indeed, there remains an important role for the licensing process and for continuing legal education.[29]
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[1] Thanks to Antonia Chircop and Margaret Wilson for research assistance and to Alanah Ellsworth for comments on a draft. This project was presented at the annual meeting of the Canadian Association for Legal Ethics at the University of Victoria in October 2023. I am grateful for attendees’ comments.
[2] See e.g. Constance Backhouse, “Gender and Race in the Construction of ‘Legal Professionalism: Historical Perspectives” in Adam Dodek & Alice Woolley, eds, In Search of the Ethical Lawyer: Stories from the Canadian Legal Profession (Vancouver: UBC Press, 2016) 126.
[3] See e.g. Amy Salyzyn, “John Rambo v Atticus Finch: Gender, Diversity and the Civility Movement” (2013) 16:1 Legal Ethics 97.
[4] See especially Michael Code, “Counsel’s Duty of Civility: An Essential Component of Fair Trials and an Effective Justice System” (2007) 11 Can Crim L Rev 97 (now Justice Code of the Ontario Superior Court of Justice); Alice Woolley, “Does Civility Matter?” (2008) 46:1 Osgoode Hall LJ 175 (now Justice Woolley of the Court of Appeal for Alberta).
[5] Law Society of Upper Canada v Groia, 2018 SCC 27. See e.g. Alice Woolley, “Did Joe Groia Kill the Civility Movement?” (2018) 21:2 Legal Ethics 159 at 162. (Now Justice Woolley of the Alberta Court of Appeal.)
[6] For an extensive discussion of definitional challenges as part of civility education, see e.g. Laurel Rigertas, “Demonstrating Civility: A Law School Learning Outcome” (2023) 112:3 Ky LJ 413 at 418-431.
[7] Here see e.g. Rigertas, supra note 6, who explicitly frames civility as a “skill”: see esp 443-454.
[8] Federation of Law Societies of Canada, National Requirement (Ottawa: FLSC, 2018), B.2., online: <https://flsc.ca/wp-content/uploads/2024/04/National-Requirement-Jan-2018.pdf> [https://perma.cc/658Z-TKSN] [FLSCNR 2018]; Federation of Law Societies of Canada, National Requirement (Ottawa: FLSC, 2024), B.2., online: <https://flsc.ca/wp-content/uploads/2024/04/NRR-approved-on-March-12-2024-ENG-1.pdf> [https://perma.cc/AW6E-HKYT] [FLSCNR 2024].
[9] FLSCNR 2018, B 2.1.a.6.
[10] FLSCNR 2024, B 2.1.a, B 2.1.b.
[11] FLSCNR 2018, B 2.1.a, B 2.2.b. These parts are unchanged in FLSCNR 2024.
[12] FLSCNR 2018 B.1.3.a. It also includes at B.1.3.c the ability to “use correct grammar, spelling and language suitable to the purpose of the communication and for its intended audience”. However, in this context it is not clear that “suitable” language goes to civility.
[13] FLSCNR 2024 B.1.3.a [emphasis added]. The 2024 version retains B.1.3.c, the ability to “use correct grammar, spelling and language suitable to the purpose of the communication and for its intended audience.” However, in this context it remains unclear whether “suitable” language goes to civility.
[14] See above note 12 and accompanying text.
[15] See e.g. Rigertas, supra note 6 at 446: “Teaching students to demonstrate civility, even when stressed, frustrated, angered, or pulled in another direction by expectations of clients or others, is essentially teaching an inter-personal relational skill.”
[16] Mccarthy (Re), 2016 LSBC 23 at para 1.
[17] Harry Arthurs, “Why Canadian Law Schools Do Not Teach Legal Ethics” in Kim Economides, ed, Ethical Challenges to Legal Education and Conduct (Oxford: Hart, 1998) 105 at 107 [footnote omitted]. See also Barry Sullivan & Ellen S Podgor, “Respect, Responsibility, and the Virtue of Introspection: An Essay on Professionalism in the Law School Environment” (2001) 15:1 Notre Dame JL Ethics & Pub Pol’y 117 at 117: “Knowing the law is an essential and necessary component of professionalism, but knowing the law is not enough.”
[18] See e.g. David M Tanovich, “Learning to Act like a Lawyer: A Model Code of Professional Responsibility for Law Students” (2009) 27:1 Windsor YB Access Just 75 at 86. See in the US context e.g. Steven K Berenson, “What Should Law School Student Conduct Codes Do?” (2005) 38:4 Akron L Rev 803; Denise Platfoot Lacey, “Embedding Professionalism into Legal Education” (2012) 18 JL Bus & Ethics 41.
[19] See e.g. Arthurs, supra note 15 at 107: “While familiarity with professional ethics is a legitimate expectation of those who seek admission to practice, that familiarity can and should be achieved through the articling experience and bar admission and professional training courses.” See also Sullivan & Podgor, supra note 17 at 118: “Until fairly recently, however, it was thought that law schools should leave the teaching of these professionalism values mainly to the practicing bar and the bench-one aspect of the apprenticeship system that survived the professionalization of legal education during the late nineteenth and early twentieth centuries.”
[20] See e.g. Sullivan & Podgor, supra note 17 at 119.
[21] See e.g. Raymond M Ripple, “Learning Outside the Fire: The Need for Civility Instruction in Law School” (2001) 15:1 Notre Dame JL Ethics & Pub Pol’y 359.
[22] FLSCNR 2018, C.1.4: “The academic program includes instruction in ethics and professionalism in a course dedicated to those subjects and addressing the required competencies.” FLSCNR 2024, C.1.4: “The academic program includes instruction in ethics and professionalism in a 3-credit course dedicated to those subjects and addressing the required competencies.”
[23] See e.g. in the American context Sophie Sparrow, “Practicing Civility in the Legal Writing Course: Helping Law Students Learn Professionalism” (2007) 13 Legal Writing: J Legal Writing Inst 113 at 133: “teaching civility is already a part of many clinical and simulation-based classes, such as negotiation, mediation, trial advocacy, externships, and independent studies.”
[24] Ibid; Donna C Chin et al, “One Response to the Decline of Civility in the Legal Profession: Teaching Professionalism in Legal Research and Writing” (1999) 51:4 Rutgers L Rev 889. See more generally Judith D Fischer, “Incivility in Lawyers’ Writing: Judicial Handling of Rambo Run Amok” (2011) 51 Washburn LJ 365.
[25] See e.g. Rigertas, supra note 6 at 448.
[26] Thanks to several conference attendees on this point.
[27] See e.g. Justine Rogers, “Coming to Terms with Legal Ethics Assessment” in Michael Robertson et al, eds, The Ethics Project in Legal Education (Oxford: Routledge, 2011) 212 at 214.
[28] But see e.g, Thomas Gibbons, “A Realistic Professionalism – The Next Step” (2010) 18 Waikato L Rev
72 at 76 (attendance and being on time as two potential evaluation criteria).
[29] See generally Leah Teague, “Civility Matters: Why Law Schools Must Teach Students to Disagree without Being Disagreeable” (2024) 76:1 Baylor L Rev 1 at 25-35 on approaches outside of law school (and 36-47 on approaches in law school).
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