Incivility as Identity

Incivility can undermine the legal profession’s work and effectiveness. However, existing scholarship, focused on explaining lawyer incivility as an overextension of zealous advocacy, poor training, or a business-driven model of lawyering, has misconceived a key facet of incivility. Prevailing wisdom largely neglects that lawyers use incivility to react and position themselves within the sociopolitical norms of society in which they live. Civility (or the lack thereof) in the legal profession, may be less about clients and economic pressures than about lawyers affirming their political, class, and gender identities. Once the legal profession recognizes that civility is significantly about lawyers affirming an associative identity, not asserting a tactical advantage, it can begin to effectively create institutional structures that support civil interactions. This Article uses social and historical context to discuss how lawyers use civility or incivility to publicly proclaim group membership and identity affiliations. In today’s climate, there are three principal associations that acts of incivility trigger: (1) antielitism, (2) authenticity, and (3) adherence to traditional gender norms of masculinity and strength. When lawyers engage in action that is not civil, they self-identify with one or more of these traits. This Article argues civility today is significantly about lawyer identity formation and discusses institutional reforms that aim to establish new normative professional paradigms.