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St. Mary's Journal on Legal Malpractice & Ethics

First Page

215

Date Created

4-13-2026

Publisher

St. Mary's University School of Law

Editor

Sarah Nicole Peacock

Last Page

248

Abstract

This Article addresses a blind spot in the theorizing and debate over originalist interpretation: the implications of rules of legal ethics.  For the few originalist theorists who take the practical side of originalism seriously, attorneys’ rules of professional conduct are almost entirely absent from the discussion.  Incivility is at epidemic proportions in our society.  That condition is unacceptable.

This Article argues for each of us, lawyers and everyone in all walks of life, to take action and not merely offer lip service to push back against incivility.  We must repel incivility.  This “push back” is not compelled alone by written ethics rules.  Our action must be based upon a resolve to effect a change.

We cannot wait for the hypothetical “other guy” to act.  We individually must devote ourselves to a revolution of rational civility.

In order to effectively push back against incivility, we each must intellectually contemplate the meaning of and the dichotomy between the concepts of civility and its analogue, incivility.  We must determine what we can do to take curative action regarding incivility.

This Article contends that contemplation and subsequent action should be guided by the three-step self-evaluation process described below.  The discussion that follows is offered in aid of that introspective process.  The ultimate goal is to equip advocates of civility to combat the incivility epidemic with our own medicine of civility.

The first step in this introspective self-evaluation process requires one to intellectually contemplate how civility and incivility manifest in our society, i.e., we must define that conduct.  The societal uncivil chaos has created uncertainty as to the line between incivility and civility.  So, as Justice Sandra Day O’Connor said, at this early stage, we must “know it when [we] see it.”[1]  However, each of us must do more.  We each must adopt a cogent description of civility in order to practice civility, serve as models of civility, and ultimately teach the necessity of civil conduct.

Second, as part of this process, it is imperative that we each resolve to not tolerate incivility, and that we each will take concerted, but controlled and respectful, action against incivility.  That resolve must immediately translate into action.

Third, this Article also asserts we each must acknowledge we are personally responsible to take action to curb incivility.  That is imperative.  In order to take that personal, individual action, we must recognize the fundamental fact of life that we cannot control the habitually and unrepentantly uncivil persons in our society.  However, we must deliberately control our own conduct.  Personal self-control is what it will take to bring about a revolution of rational civility.

This idea is not “pie in the sky.”  It is reality.

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