November 29, 2021
Justice Brian S. Currey, Chair
Heather Rosing, Vice Chair
Brandon Stallings, Vice Chair
California Civility Task Force
Re: Beyond the Oath: Recommendations for Improving Civility
Dear Justice Currey, Ms. Rosing, and Mr. Stallings:
We submit these comments on behalf of the California Lawyers Association (CLA) in response to the Initial Report of the California Civility Task Force. We commend the tremendous work of the Task Force and share a commitment to address and curb incivility in the legal profession. We have the following comments on the four recommendations in the Initial Report.
1. Require one hour of MCLE devoted to civility training, included in the total number of MCLE hours currently required. Approved civility MCLE programs should highlight the link between bias and incivility and urge lawyers to eliminate bias-driven incivility.
CLA supports this recommendation.
2. Provide training to judges on the need to both curtail incivility and model civility, both inside and outside the courtroom, explaining the tools available to them to do so.
CLA supports this recommendation.
3. Enact meaningful changes to State Bar disciplinary rules, prohibiting repeated incivility and clarifying that civility is not inconsistent with zealous representation.
Although CLA would encourage further exploration of this possibility, and offers all of its resources as part of that process, we have several concerns about this recommendation.
• Definitional and Related Concerns
Our first concern surrounds the definition of “incivility.” The current proposal defines “incivility” for purposes of the rules as “discourteous, abusive, harassing, or other significantly unprofessional conduct” and notes that the Task Force is “open to adding further definitional language so lawyers can have clarity about what conduct is and is not prohibited.”
We agree that clarity and certainty are key considerations, but also caution that creating any definition of “incivility” raises issues that should be considered carefully by all interested stakeholders. Given our complex, evolving, and richly diverse society, manners of communication and the notion of what is “civil” vary by region, time, location, and numerous other factors.1 Views of acceptable norms in one context may not be the same as views of acceptable norms in a different context. What account, if any, will be given in a definition to factors such as race, ethnicity, national origin, gender, sexual orientation, gender identity, gender expression, age, and religion?
A related concern is the potential impact of the definition – along with complaints and enforcement that would follow – on people of color and women in particular. The Initial Report and the attached material repeatedly mention bias and prejudice with the goal of reducing or eliminating both. We share this goal and do not dispute, as the Interim Report notes, that “young lawyers, women lawyers, lawyers of color, and lawyers from other marginalized groups are disproportionately on the receiving end” of incivility. A civility rule of professional conduct could help address this issue. At the same time, the identical rule could be harmful to and have a disproportionate impact on these same attorneys when used against them by others making claims of incivility based on conduct perceived as “inappropriate” or “too aggressive” or “out of line.”2 In reviewing this proposal, one of our members recently reported on a young, Black, female colleague who was berated by a judge for making the same types of arguments the white, male attorney regularly makes. Although this could certainly have been the result of implicit bias against the attorney, the key point is that identical speech and conduct can be perceived in a different way, depending upon the speaker and actor. Although not the intent, there is a general concern that a civility rule of professional conduct could be used to stifle the voices and advocacy of younger, more diverse attorneys.
We acknowledge that the stated intent is a rule clarifying that civility is not inconsistent with “zealous representation.” Although this might provide some level of comfort, it does not resolve the definitional concerns. The outer boundaries of “zealous representation” are not set or defined, potentially resulting in additional lack of clarity and certainty in the rule. Stated otherwise, when would the line be crossed from zealous representation (permitted under the rule) into incivility (prohibited by the rule)?
• First Amendment Concerns
This proposal would add a Comment to California Rules of Professional Conduct, rule 8.4, stating that a lawyer violates paragraph (d) of that rule “by repeated incivility while engaged in the practice of law or related professional activities.” Current Comment  of the same rule states: “This rule does not prohibit those activities of a particular lawyer that are protected by the First Amendment to the United States Constitution or by Article I, section 2 of the California Constitution.” The Interim Report also notes: “We are aware that making incivility a breach of the rules of professional conduct may be controversial in some circles. Some lawyers may have First Amendment concerns. Others may be concerned that a single misstep could land them in hot water with the State Bar. Our proposal should allay both concerns. Our task force members are ardent defenders of the First Amendment and have no interest in deterring lawyers from advocating controversial legal positions.”
We appreciate and share the view that First Amendment rights must be ardently defended. We expect that any civility rule of professional conduct is less likely to be invoked in the context of advocating controversial legal positions and anticipate that the vast majority of complaints would arise in the context of discovery and other routine out-of-court matters. Notwithstanding the statement in Comment  of rule 8.4, we believe crafting (and enforcing) a rule of professional conduct that does not in fact prohibit activities protected by the First Amendment raises very legitimate issues and that further exploration of these issues is needed.
• Concerns About Use (or Misuse) of the Rule
We are concerned that a rule of professional conduct could end up being weaponized in the hands of litigants, opposing counsel, business rivals, political rivals, and others. It is relatively easy to file a complaint with the State Bar and trigger an investigation and there is no cost to make the accusation. Although the State Bar investigation is confidential, a complaint that becomes public once disciplinary charges have been filed can, by itself, cause harm. Defending against an accusation can cost a significant amount of money, even for a successful exoneration.
We also note that the rules of professional conduct are intended to regulate professional conduct of lawyers through discipline. Self-represented litigants are not bound by these same rules. There are many cases with a represented litigant on one side and a self-represented litigant on the other side. What consequence, if any, are there to a self-represented litigant who acts in an uncivil manner? Would the incentives to file a complaint with the State Bar differ between cases where both sides are represented by counsel (and can equally file a complaint, whether initially or in retaliation to the other side’s complaint where both sides claim incivility) and cases where one side is represented but the other is not?
4. Require all lawyers, not just those who took the oath after the 2014 rule change, to affirm or reaffirm during the annual license renewal process that: “As an officer of the court, I will strive to conduct myself at all times with dignity, courtesy and integrity.”
CLA supports this recommendation.
We appreciate your consideration of our comments and look forward to the opportunity to work on proposals to improve civility in the practice of law.
Jeremy M. Evans