Lawyers have a duty to represent their clients. At the same, they have a responsibility to the legal system and the quality of justice administered. These three sets of obligations are laid out in the Preamble to the Rules of Professional Conduct.
The Preamble urges lawyers to promote civility and to further the public’s confidence in the rule of law and the justice system. So what does it mean to promote civility and the rule of law? How can lawyers further the public’s understanding of the justice system?
Civility: Ground Zero in our Democracy
As I recently wrote, our government is predicated on the assumption that a respectful discussion of differences leads to compromise and the development of better policy. Although, that hasn’t much been the case recently. With a few exceptions, it seems our elected representatives have taken up corners on the opposite side of the boxing ring rather than coming together to legislate for the good of all people.
In terms of practicing lawyers, many seem to erroneously equate aggressiveness with advocacy. They ignore or have forgotten the fact that clients increasingly seek practical solutions to problems, not an expensive war. Therefore, as Dean Blake Morant of the George Washington Law School says, “civility constitutes a foundational element of professionalism, a vital attribute for success in the 21st century.”
But when does civility not serve the profession? What are the limits? Does civility require engagement with individuals who demonstrate no respect for others?
Finding Common Ground in the Rule of Law
One recent bipartisan bright spot was The First Step Act, a criminal justice reform bill that was passed late last year. According to Ames Grawert and Tim Lau of The Brennan Center for Justice, criminal justice reform begins with sentencing reform. The First Step Act shortens mandatory minimum sentences and eases the federal “three strikes” rule also assailed by Hon. Vincent Cornelius as antithetic to the rule of law.
While this was a noteworthy example of bipartisanship, there is much more work to be done in criminal justice reform. For example, The First Step Act deals only with the federal system, but most inmates in the U.S. are held in state facilities or local jails. We need state legislators to come together in a bipartisan way and address criminal justice reform locally.
Pretrial practices are also a major issue that needs to be addressed. Most people in jail awaiting trial are there because they can’t afford bail. In fact, many of those incarcerated haven’t even been convicted of a crime.
The bail system assumes that if someone pays money to get out of jail, then they’ll come back for subsequent court visits. If they fail to appear, they forfeit that amount. Unfortunately, many can’t make bail and stay in jail awaiting their trial for weeks, months or even years.
Here in Illinois, the Illinois Supreme Court Commission on Pretrial Practices has been working toward an evidence-based pretrial justice system since early 2018. The Commission issued a preliminary report and has scheduled public hearings over the coming months to gather feedback as it works toward its final report and recommendations in December.
At the same time, Illinois’ Bail Reform Act of 2017 (effective January 1, 2018) supports the least-restrictive conditions based on an individual’s risk rather than financial ability to secure release from custody. These efforts indicate positive changes are coming.
Meanwhile, there’s a growing movement aimed at helping defendants secure release by providing them with the necessary funds to make bail. Appolition, an app created by Chicagoans Kortney Ziegler and Tiffany Mikell, allows the public to donate spare change from everyday purchases to help incarcerated individuals meet their cash bail. The app’s roughly 8,000 users have secured the release of 45 people nationwide.
Similarly, The Bail Project’s revolving national bail fund combats mass pretrial incarceration by providing bail assistance. Since launching in 2018, nine sites manned largely by former inmates have opened across the country. The Bail Project’s CEO Robin Steinberg will discuss the human cost of cash bail and her inspiring platform at The Future is Now.
Civility and the Rule of Law
By employing civility and working for legal reform, lawyers support the rule of law—the very foundations of our government. As the Preamble urges: “Lawyers should cultivate knowledge of the law beyond its use for clients, [and] employ that knowledge in reform of the law. In addition, a lawyer should further the public’s understanding of and confidence in the rule of law and justice system because legal institutions in a constitutional democracy depend on popular participation and support to maintain their authority.”
We hope you’ll attend The Future is Now on May 16 in Chicago and be inspired to greater service. Register today!