Now Kids, Remember to Play Nice!

Posted in Save Our Juries on July 22, 2014

By Janine Sperandeo | July 22, 2014

The foundation of the rule of law is dependent upon lawyers treating judicial officers and each other with respect, dignity and courtesy. The need for civility and dignity is critically important, especially today, with the legal profession and the judicial branch of government under cynical attack from various quarters.
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It is a privilege to appear as counsel before the court representing a client in the pursuit of justice. Counsel are considered officers of the court. The handshake at the end of the trial is not the only time when professionalism and civility are expected. It is demanded of lawyers, at all times and at all stages of a case, no matter what the stakes involved.
-People v. Whitus, 209 Cal. App. 4thSupp. 1, 4, 13 (2012).

On April 23, 2014, the California Supreme Court promulgated a new Rule of Court, adding to the traditional oath codified in Business and Professions Code Section 6067 and requiring all attorneys upon admission to the Bar to “strive to conduct [themselves] at all times with dignity, courtesy, and integrity.”  Rule 9.4, entitled Oath Required When Admitted to Practice Law, took effect on May 23, 2014 and was administered for the first time in June to the group of new lawyers who passed the February 2014 bar exam.  But what does the new oath really mean to the practice of law?  Will we notice an uptick in counsel unilaterally reaching out, offering 30 day extensions for filing that opposition?  Will there be groups of lawyers rushing to make lunch dates with opposing counsel in the effort towards camaraderie?  Do we have to be nice to each other now??

So let us begin anew – remembering on both sides that civility is not a sign of weakness, and sincerity is always subject to proof.  – John Fitzgerald Kennedy

Ask anyone how they would define “being civil” and most people, lawyers or otherwise, would answer with some variation on the concept of politeness or courteousness.  Merriam-Webster defines civility as “polite but not friendly.”  The author of a recent law review article on the subject of civility as professional responsibility characterized it as “a set of core obligations that deal with what may be described as common sense or manners.” ((Donald E. Campbell, Raise Your Right Hand and Swear to be Civil: Defining Civility as an Obligation of Professional Responsibility, 47 Gonzaga L. Rev. 99, 142 (2011).))  In short, civility does not oblige us to be nice per se, just adequately courteous to avoid being rude.  With that qualification, being civil really doesn’t seem like an impossibly difficult task.  And yet, the stories reported in countless news articles and court opinions telling of inappropriate behavior almost too ridiculous to be true, both by attorneys ((Debra C. Weiss, Suit Claims Lawyer Slapped Paul Hastings Partner Because of Violent Finger Shaking, Spittle-Spewing, ABA Journal Law News Now (July 2, 2012), http://www.abajournal.com/news/article/suit_claims_lawyer_slapped_paul_hastings_partner_because_of_violent_finger_/ ; Barton Deiters, Attorney Slapped with $1,000 Fine for Calling Kent County Judge a ‘Bitch’, MLive, (June 4, 2014), http://www.mlive.com/news/grand-rapids/index.ssf/2014/06/attorney_socked_with_sanction.html; Debra C. Weiss, Suit Claims Lawyer Broke His Wrist in Deposition Fracas with Drinker Biddle Partner, ABA Journal Law News Now (July 28, 2011), http://www.abajournal.com/news/article/suit_claims_lawyer_broke_his_wrist_in_deposition_fracas_with_drinker_biddle/ ; In re Anonymous Member of S.C. Bar, 709 S.E.2d 633 (S.C. 2011) (attorney sanctioned for insinuating by email that opposing counsel’s daughter was drug dealer).)) and judges ((Recent questionable actions and attitudes by some of the judiciary have led to disciplinary actions by California’s Commission on Judicial Performance.  See, Corina Knoll, Retired L.A. County Judge Admonished Again for Comments Made to Lawyers, L.A. Times, May 13, 2014; Will Bigham, Judicial Panel Admonishes Retired San Bernardino County Superior Court Judge, Contra Costa Times, Oct. 27, 2008.  If judges are promoting incivility in the courtroom, it can never become common practice in our profession.  It is imperative that judges also consign themselves to practicing civility inside and out of the courtroom, as well as demanding civility of the lawyers in their courtrooms and putting an immediate end to words and actions contrary to that standard.)), indicate that it is.

Professionalism, also known as civility, in the law is not a new concept.  Shakespeare espoused it. (( “And do as adversaries do in law, Strive mightily, but eat and drink as friends.”  The Taming of the Shrew, 1.2.280, Tanio.”))  Horace questioned its existence. ((“Lawyers are men who hire out their words and anger.”))  Over the years, countless authors have expounded on civility in the legal arena, in news stories, in law review articles, in speeches at conventions and law school ceremonies.  Most have lamented the state of civility in the law, focusing on the bad actions of so many of its advocates and the resultant destruction of the public’s perception of the justice system and lawyers in particular.  Litigation has been described as “ice hockey in business suits” and even war necessitating “Rambo-style” tactics. ((Sandra Day O’Connor, Professionalism, 76 Wash. U. L. Q. 5, 7, 9 (1998).)) Lawyers themselves have become inured to the rash of bad apples who “zealously represent” their clients through unreasonable, unfair and malicious tactics. ((See, Commission on Professionalism, Ill. Supreme Court, Survey on Professionalism: A Study of Illinois Lawyers (2007), http://www.2civility.org/wp-content/uploads/2013/12/surveyonprofessionalism_final.pdf. This December 2007 study of lawyers on their perceptions of civility documented in part:  95% reported experiencing or witnessing unprofessional behavior, including rudeness or strategic incivility, during their careers, while only 72% characterized incivility as a serious or moderately serious problem in the profession.  It would seem that incivility is becoming the accepted norm.))

Now the initiative to quell the tide of nastiness in the law has become wide-spread.  Over the last ten years, California and a number of other jurisdictions have found it necessary to adopt new oath provisions, reminding their future attorneys to maintain civility and respect for their peers and the judiciary. ((These states include New Mexico, Arkansas, South Carolina, Florida, Utah, Nevada (as of this year), and now, California.)) Most states, including California, currently have civility guidelines which provide their bar members with suggested manners of comportment in dealing with opposing counsel and the courts. ((See, http://www.americanbar.org/groups/professional_responsibility/resources/professionalism/professionalism_codes.html for a collection of state, federal and local bar associations that have adopted civility codes, standards and/or guidelines to promote civil behavior in the law.  See also, Campbell, supra note 1, for an extensive analysis and comparison of civility codes between states, specifically delineating ten common concepts included in all civility codes, e.g., exhibiting proper conduct before the court, avoiding actions meant to delay or harass, cooperating in pre-trial proceedings and engaging in promptness, promoting respect and communication in dealings with opposing counsel.)) A few of those states have actually required civility, where their courts have relied on specific state civility rules or violations of the existing civility oath to discipline attorneys for failing to maintain adequate levels of civility in practice. ((E.g., South Carolina, Florida, Michigan, Arizona.  For a more in-depth discussion of civility enforcement in these states, see David A. Grenardo, Making Civility Mandatory: Moving from Aspired to Required, 11 Cardozo Pub. L. Policy & Ethics J. 239, 255-262 (2013).))

In response to years of increasing hostility, lack of integrity and a serious divergence from plain old manners in and out of the courtroom, national professional associations and local and state bar associations have taken action.  The American Board of Trial Advocates (ABOTA), a nationwide organization of skilled trial attorneys whose mission is to foster improvement in the ethical and technical standards of practice in the field of advocacy, has become heavily involved in promoting professionalism and civility in the legal world.  ABOTA has created, in conjunction with the American Inns of Court, a program known as Civility Matters. A publication available on the ABOTA website for hosting a panel or session on the topic, Civility Matters includes 3 sample programs, civility role-play assignments and presentation materials intended for use as an educational tool at bar and professional programs and, more importantly, at law schools nationally.   Among others, the program has received funding from some heavy hitters in the industry, including its own foundation (the ABOTA Foundation), the JAMS Foundation, the Federal Bar Association, the American Association of Justice (AAJ) and the National Center for State Courts.  With these groups involved, clearly the rise of incivility in the law has become more than a passing concern.

And do as adversaries do in law, Strive mightily, but eat and drink as friends.  (The Taming of the Shrew, 1.2.280)

Closer to home, the increasingly contentious behavior between attorneys in and out of the courtroom, as well as inappropriate behavior directed toward the judiciary, spurred the push by the California chapter of ABOTA and the State Bar of California for the state’s adoption of new “civility” language in its attorney oath.  Though the addition to the oath is a new development, the expectation of professional behavior in the California Bar is nothing new.  As officers of the court, we attorneys are expected to abide by the California Rules of Professional Conduct and relevant sections of the Business and Professions Code. ((In re S.C., 138 Cal. App. 4th 396 (3d Dist. 2006) (relying on specific sections of Bus. & Prof. Code in upholding sanctions for “incivility” to the court and unprofessionalism towards opposing counsel and witnesses; copy of opinion sent to State Bar).))

The Rules of Professional Conduct, first adopted by the California Supreme Court in 1928 and revised over the years, are meant to establish binding professional standards and regulate members of the State Bar through discipline. ((http://rules.calbar.ca.gov/Rules/RulesofProfessionalConduct.aspx))  In addition, the State Bar Act (Bus. & Prof. Code, §6000 et seq.) delineates the duties of an attorney practicing in California. ((Among other things, an attorney is required:(b) To maintain the respect due to the courts of justice and judicial officers. (d) To employ, for the purpose of maintaining the causes confided to him or her those means only as are consistent with truth, and never to seek to mislead the judge or any judicial officer by an artifice or false statement of fact or law. (g) Not to encourage either the commencement or the continuance of an action or proceeding from any corrupt motive of passion or interest. Cal. Bus. & Prof. Code, §6068.))  While the concept of civility encompasses many of these binding requirements, neither codification further defines civility, as do the California Attorney Guidelines of Civility and Professionalism, adopted by the Board of Governors of the State Bar in July 2007. ((http://ethics.calbar.ca.gov/Ethics/AttorneyCivilityandProfessionalism.aspx))  The Civility Guidelines specifically lay out what attorneys should do and how they should act in situations ranging from scheduling and offering extensions of time to appearing in court.  They also discuss respecting privacy rights of non-parties and offer additional guidelines for family law and criminal law practitioners.

However, unlike the Rules of Professional Conduct, the Guidelines have not been approved or mandated by the California Supreme Court.  While some local jurisdictions have adopted them, they are not required at the state level.  And though attorneys are encouraged to adopt these standards as their own, the Guidelines are non-mandatory “best practices” and cannot be used as an independent basis for discipline by the State Bar. ((California is the only state that employs independent judges, appointed by the California Supreme Court, the legislature and the governor, to deal exclusively with attorney discipline cases in a dedicated State Bar Court.  See, http://www.statebarcourt.ca.gov/Home.aspx)), ((Though not used as an independent basis, since 2007, California courts have relied on the Guidelines in ruling on attorney sanctions.  See, In re Marriage of Davenport, 194 Cal. App. 4th 1507, 1536-37 (1st Dist. 2011) (citing to Guidelines Introduction re general obligations of attorneys and §4 re communications between counsel in upholding trial court’s issuance of sanction); People v. Whitus, 209 Cal. App. 4th Supp. 1, 14-15 (App. Div. 2012) (citing to §§1, 3 and 14 of the Guidelines in upholding attorney sanction and referring matter to State Bar for consideration of discipline).  See also, Ahanchian v. Xenon Pictures, Inc., 624 F.3d 1253, 1263 (9thCir. 2011) (citing to §§1 and 6 of Guidelines in addressing defense counsel’s behavior towards appellant in opposing reasonable requests for extensions, even though not an issue on appeal).))

So why should attorneys willingly follow a set of guidelines to try and curb incivility in the law?  It’s really just common sense.  Civility garners more respect from adversaries and the judiciary.  Civility promotes heightened efficiency in handling and resolving matters.  Most importantly, civility prevents time- and money-wasting tactics, benefitting the client, the courts and even the attorneys. ((O’Connor, supra note 6, at 9 (“[I]ncivility disserves the client because it wastes time and energy – time that is billed to the client at hundreds of dollars an hour, and energy that is better spent working on the case than working over the opponent.”). ))  Civility also raises the integrity and esteem of the justice system as a whole in the public’s perception and, as a result, hopefully will work to alleviate the public’s distaste for lawyers and the legal profession.  As former United States Supreme Court Justice Sandra Day O’Connor has stated, “More civility and greater professionalism can only enhance the pleasure lawyers find in practice, increase the effectiveness of our system of justice, and improve the public’s perception of lawyers.” ((Id. at 8.))

The strongest and most employed position against the push for civility is the cry for zealous advocacy, by which the focus on civility arguably works in contravention of the lawyer’s ultimate duty to his/her clients by requiring concessions to opposing counsel.  In fact, the Guidelines even mention the Z-word. ((Cal. Att’y Guidelines of Civility & Professionalism, Introduction (State Bar of Cal. 2007).)) But California courts have increasingly disregarded this argument.  The Court in Kim v. Westmoore issued a $10,000 sanction against respondent’s counsel to be paid to the Court for dishonesty and bullying on appeal.  The Court’s reasoning behind the heavy sanction was as follows:

Our profession is rife with cynicism, awash in incivility.  Lawyers and judges of our generation spend a great deal of time lamenting the loss of a golden age when lawyers treated each other with respect and courtesy.  It is time to stop talking about the problem and act on it.  For decades, our profession has given lip service to civility.  All we have gotten from it is tired lips.  We have reluctantly concluded lips cannot do the job; teeth are required. ((Kim v. Westmoore, 201 Cal. App. 4th 267, 293 (4th Dist. 2011).))

Similarly, affirming the trial court’s issuance of sanctions in part because of counsel’s “demeaning comments” to the opposition, the Court in In re Marriage of Davenport issued “a reminder to counsel – all counsel, regardless of practice, regardless of age – that zealous advocacy does not equate with ‘attack dog’ or ‘scorched earth’; nor does it mean lack of civility….Zeal and vigor in the representation of clients are commendable.  So are civility, courtesy, and cooperation.  They are not mutually exclusive.” ((In re Marriage of Davenport, supra note 16, at 1537 (citations omitted).)) The reality is that zealous advocacy in large part does and should include civility.  “Some of the most passionate and effective advocates for their clients also hold their adversaries, the court, and its judicial officers in the highest regard. Passion can easily coexist with respect, dignity, and civility.” ((People v. Whitus, supra note 16, at 14.))

All too often attorneys forget that the whisper can be more dramatic (and more compelling) than the scream.  – Sandra Day O’Connor

It remains to be seen whether California Courts will rely in part on the new oath in enforcing civility violations or, rather, if the oath will exist simply as an initial exposure to and hopeful reminder of our professional obligations as lawyers.  Perhaps it will serve a peremptory purpose, forcing new lawyers to acknowledge the civility issue upon their inception into the Bar.  Hopefully, it will encourage a new trend of courtesy, respect and decency as forerunners of the modern lawyer’s attributes.  But one thing is certain – it never hurts to be reminded.