Litigation

Spotlight on Civility in the Profession

By Eddie A. Jauregui

Last September, the California Civility Taskforce, a joint project of the California Lawyers Association (CLA) and the California Judges Association (CJA), issued a report decrying increased incivility in the legal profession and setting forth four proposals for improving civility among California lawyers and judges. 

If implemented, the proposals would:

1) Require one hour of MCLE devoted to civility training, focusing in part on the link between incivility and bias.  This proposal would not add to the total number of MCLE hours required.  The Taskforce’s goal is to educate lawyers about the “economic and human costs of incivility” and provide attorneys with “reasons and tools” to change their own behavior and deal with the “stress and dissatisfaction caused by” uncivil behavior. 

2) Provide training to judges on the need to both curtail incivility and model civility, both inside and outside the courtroom.  This proposal calls for “new training programs designed to arm judges with tools to have a greater impact on promoting civility among lawyers.”  Attached to the report is a sample training program for judges that discusses various duties of professionalism and civility and the sources of those duties (e.g., State Bar rules, local court rules/guidelines, guidelines issued by professional associations, etc.).  It also highlights tools available to judges to curb uncivil behavior by attorneys.   

3) Amend the Rules of Professional Conduct to clarify that “repeated incivility constitutes professional misconduct.”  This proposed change would add a Comment to Rule 8.4(d) of the Rules of Professional Misconduct, noting that a lawyer may violate the rule “by repeated incivility while engaged in the practice of law or related professional activities.”[1]  The Taskforce sought to address concerns that the proposed rule would be abused by requiring that incivility be “repeated” and also in the course of the practice of law or related professional activities.  Nevertheless, the drafters acknowledged that the change could be “controversial” and noted that this was a “starting point” for discussion.   

4) Require all lawyers to “take [a] civility pledge annually.”  Finally, the Taskforce recommended that all lawyers be required to swear or affirm that they will conduct themselves civilly every year when paying annual bar dues. 

The Taskforce made the proposals in response to persistent (and growing) incivility in the profession, which the Taskforce noted disproportionately impacts “young lawyers, women lawyers, lawyers of color, and lawyers from other marginalized groups,”[2] but threatens the profession as a whole and the justice system itself.[3]  The report was remarkable in the terms it used to describe the severity of the civility problem, noting that “[b]ullying, intimidation, and nastiness have too often replaced discussion, negotiation, and skillful, hard-fought advocacy,”[4] and warning that “systemic incivility” interferes with justice system’s ability to function “fairly and reliably.”[5]  Indeed, the report noted that even the perception of incivility “between lawyers and between lawyers and judges” is dangerous to democracy and the rule of law because the public will not trust the legal system if it does not believe its gatekeepersi.e., lawyers and judges—are “honest and ethical.”[6] 

Seeking to address this urgent problem, and at the same time make the profession more open and welcoming, the Taskforce made four “concrete” and “realistic” proposals, which it asked its sponsoring organizations (CLA and CJA) to endorse.  The CJA Executive Board embraced the recommendations contained in the report and urged further appropriate action to improve civility in the practice of law. 

On November 29, 2021, the CLA responded to the initial report and endorsed, without hesitation, proposals 1, 2, and 4.  As to proposal 3, the CLA expressed some concern that the rule changes proposed by the Taskforce “could be harmful to and have a disproportionate impact” on younger and diverse attorneys “when used against them by others making claims of incivility based on conduct perceived as ‘inappropriate’ or ‘too aggressive’ or ‘out of line.’”  The CLA noted that the California bar is a richly diverse bar and that “manners of communication and the notion of what is ‘civil’ vary by region, time, location, and numerous other factors.”  Furthermore, it expressed concern that “identical speech and conduct can be perceived in a different way, depending upon the speaker and actor” and that “a civility rule of professional conduct could be used to stifle the voices and advocacy of younger, more diverse attorneys.”  Finally, CLA noted that the proposed change could raise some “very legitimate” First Amendment issues and stated that “further exploration of these issues is needed.” 

We expect that there will be movement on these issues in 2022, given the focus on civility not just by the Taskforce, but by other lawyer associations as well.  Other organizations, including the Los Angeles and San Diego County Bar Associations, and the Women Lawyers Association of Los Angeles, have already endorsed the Taskforce’s proposals.[7]

***

Federal practitioners may already be familiar with various civility and professionalism guidelines issued by the federal courts.  The Central District of California’s Guidelines are extensive and, like the Taskforce’s report, emphasize that uncivil behavior has potentially “severe consequences” for both the profession and the administration of justice.[8] 

The Central District’s guidelines are notable because, among other things, they include a lawyer’s creed (the contents of which lawyers are expected to advise clients of “when undertaking representation”) and also set forth a “judge’s duties to others.”[9]  While many of the provisions of the Central District guidelines are quite typical (requiring good faith and reasonableness in connection with scheduling, motions, and discovery disputes), they also expressly provide that clients do not have rights to “demand that we act in an abusive manner or indulge in any offensive conduct” or “instruct us to refuse reasonable requests made by other counsel.”  Further, they note that lawyers should advise clients that “civility and courtesy are expected and are not a sign of weakness.”  As for judges, the guidelines provide, among other things, that judges should not “employ abusive, demeaning, or humiliating language in opinions or in written or oral communications”; that judges will “be aware of the time constraints and pressures imposed on attorneys by the exigencies of litigation practice”; and “above all,” that judges “remember that the court is the servant of the people” and will “approach our duties in this fashion.” 

Likewise, the Northern District of California, whose guidelines were adopted in 2014, stress that lawyers have a duty of professionalism not just to their clients, but to opposing parties and their counsel, the courts, and the public as a whole.[10]  In addition to setting forth guidelines for civility and professionalism in the normal course of litigation, the Northern District’s guidelines implore attorneys to be mindful that they have a duty to the profession and to the administration of justice itself.  In separate sections, the guidelines note that lawyers should conduct themselves in trials and at hearings “in a manner that promotes a positive image of the legal profession, assists the court in properly reviewing the case, and displays appropriate respect for the judicial system.”  As to conduct with non-lawyers and non-party witnesses, the court notes that “[i]t is important to promote high regard for the legal profession and the judicial system” and that a lawyer’s conduct should always “exhibit the highest standards of civility” so that others are left with “an appropriately good impression of the legal profession and the judicial system.”  Like the Central District, the Northern District expects that lawyers understand and advise clients that “civility and courtesy . . . are expected as professional conduct[.]”

The Southern District of California’s expectations of attorney professionalism are set forth in Civil Rule 2.1.  The Rule notes, among other things, that all persons involved in the administration of justice (judges, lawyers, court staff, and parties) “have a responsibility in ensuring that we preserve the legacy of this institution by conducting ourselves according to the Golden Rule—to treat others as we ourselves would like to be treated.”[11]  The court recognizes that although litigation is adversarial, “the experience does not have to, and should not, be antagonistic or hostile”; moreover, the court notes that “civility is paramount” to the efficient functioning of our system of justice and in the public’s confidence in the system and should not be “confused with weakness.”  The Southern District judges expect “all who work within” the court “and come before it to treat each other with decency, dignity, and respect in order to “nurture, rather than tarnish, the practice of law” and to maintain the public’s faith in the system. 

***

There is a through-line to the various civility guidelines and proposals issued by our courts and our attorney associations, which is that lawyers play a crucial role in maintaining our system of justice and, by our extension, our democracy.  By their conduct, lawyers have an impact on the “quality of justice”[12] obtained in courts and in the public’s faith in our rules-based system.  For these reasons, those who “have considered the importance of civility in our . . . courts”[13] have all come to the same conclusion, that in order to maintain the public’s trust, lawyers and judges must conduct themselves with dignity, courtesy, and integrity.


[1] The report defines “incivility” as “discourteous, abusive, harassing, or other significantly unprofessional conduct” and notes that the Taskforce is “open to adding further definitional language so lawyers can have clarity about what conduct is and is not prohibited.”  See Beyond the Oath: Recommendations for Improving Civility, Initial Report of the California Civility Task Force, September, 2021, available at https://www.lacba.org/docs/default-source/news/california-civility-task-force-report-9-10-21-(002).pdf, at 12.

[2] Id. at 2. 

[3] The report defines “incivility” as “discourteous, abusive, harassing, or other significantly unprofessional conduct” and notes that the Taskforce is “open to adding further definitional language so lawyers can have clarity about what conduct is and is not prohibited.”  Id. at 12.

[4] Id. at 5. 

[5] Id. at 6.

[6] Id.

[7] See Resolution of the Los Angeles County Bar Association, dated September 22, 2021; Resolution in Support of Proposals of the California Civility Task Force, dated October 12, 2021; WLALA Board of Governors Meeting Minutes, dated September 21, 2021.

[8] See United States District Court for the Central District of California, Civility and Professionalism Guidelines, available at https://www.cacd.uscourts.gov/attorneys/admissions/civility-and-professionalism-guidelines

[9] The court notes in the Preamble that it expects “judges and lawyers will voluntarily adhere to these standards as part of a mutual commitment to the elevation of the level of practice in our courts.” However, a number of District Judges have incorporated the guidelines into their court rules.  See, e.g., United States District Judge André Birotte Jr., Trial Order, available at https://www.cacd.uscourts.gov/sites/default/files/documents/AB/AD/4.%20Order%20re%20Jury-Court%20Trial.pdf; United States District Judge Michael Fitzgerald, Trial Order, available at http://www.cacd.uscourts.gov/sites/default/files/documents/MWF/AD/Order%20Re%20Jury%20Trial.April%202017.pdf.  

[10] See United States District Court for the Northern District of California, Guidelines for Professional Conduct, available at https://www.cand.uscourts.gov/forms/guidelines-for-professional-conduct/.  All attorneys appearing before the court are “deemed to have pledged to adhere to the Guidelines.” 

[11] See United States District Court for the Southern District of California, Local Rules, available at https://www.casd.uscourts.gov/_assets/pdf/rules/2021.07.5%20Local%20Rules.pdf

[12] See Beyond the Oath at 7 (quoting (J. Reardon, Civility as the Core of Professionalism, Business Law Today, September 2014 (ABA Business Law Section).)

[13] See S.D. Cal., Civil Rule 2.1.


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