State Bar Seeks Public Comment on Proposed Civility Changes to Rules of Professional Conduct and Rules of Court

By Eddie A. Jauregui

In response to proposals from the California Civility Task Force (CCTF)^[1] for improving civility in the legal profession, the California State Bar Board of Trustees has adopted for public comment three of the CCTF’s key proposals:

1. Changing the California Rules of Professional Conduct to make incivility subject to disciplinary action;
2. Changing the California Rules of Court to require all lawyers to take a civility pledge and reaffirm the pledge annually; and,
3. Requiring lawyers to take one hour of civility MCLE training during each compliance period.

We review the proposals below.

Proposed Amendments to the Rules of Professional Conduct Addressing Incivility

The State Bar seeks comments on proposed amendments to a number of Rules of Professional Conduct. The changes would “clarify that a lawyer may be disciplined for incivility and [also] provide a new basis in the rules for discipline.”  

First, and most importantly, proposed amendments would add a new rule of professional conduct, Rule 8.4.2, which would prohibit incivility in the practice of law or related professional activities. The proposed rule would define “incivility” as “significantly unprofessional conduct that is abusive or harassing and determined on the basis of the facts and circumstances surrounding the conduct.”

The proposed comments to the Rule advise that a “disciplinary investigation or proceeding for conduct coming within this rule” may be initiated and maintained “if such conduct warrants discipline under California Business and Professions Code sections 6106 and 6068, the California Supreme Court’s inherent authority to impose discipline, or other disciplinary standard.” While neither the rule nor comments define the term “significantly unprofessional” (or “abusive” or “harassing”), the comments direct lawyers to the current California Attorney Guidelines of Civility and Professionalism “and other applicable civility authorities” for guidance on conduct that “may be significantly unprofessional.”

At the time this idea was first proposed by CCTF, some commenters (including CLA itself) expressed concern that such a rule “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.’” Others expressed concerns that the proposal could raise First Amendment issues. The comments to the proposed rule note that the Rule would not apply to conduct protected by the First Amendment to the U.S. Constitution or by Article I, section 2 of the California Constitution. Moreover, according to the proposed comments, a lawyer would “not violate this rule by standing firm in the position of the client, protecting the record for subsequent review, or preserving professional integrity.”

Second, the State Bar proposes amending the comments to existing Rule 8.4 to advise attorneys that certain uncivil conduct could also violate Rule 8.4(d), which provides that it is misconduct to engage in conduct “prejudicial to the administration of justice.” According to the proposed comments, such conduct would include “engaging in significantly unprofessional conduct that is abusive or harassing in the practice of law or related professional activities.” 

Finally, a proposed amendment to Rule 1.2, Comment 1, would clarify that the lawyer has authority to conduct him or herself with civility, even if the client directs otherwise, so long as the lawyer does not prejudice the rights of the client. The new proposed language would specify that, “Notwithstanding a client’s direction, a lawyer retains the authority to agree to reasonable requests of opposing counsel that do not prejudice the rights of the client, be punctual in fulfilling all professional commitments, avoid offensive tactics, and treat all persons involved in the legal process with dignity, courtesy, and integrity.”

Proposed Amendment Requiring Attorneys to Complete Annual Civility Pledge

Current California Rule of Court 9.7 requires that, in addition to swearing an oath to support the U.S. and California Constitutions, every attorney admitted to practice in the State also pledge to “strive to conduct [him/herself] at all times with dignity, courtesy, and integrity.” The rule became a requirement for most attorneys admitted after June 2014 and, thus, a majority of California attorneys have not taken this pledge. That may change soon. The State Bar is seeking comment on a proposed amendment to Rule 9.7 requiring all active attorneys who have not yet taken the pledge “and all specially admitted attorneys”^[2] to submit a declaration affirming their commitment to the civility pledge by February 1, 2024.  Thereafter, all licensees and specially admitted attorneys would be required to take the pledge annually when paying annual licensing or registration fees. 

Any attorney who is required to but fails to submit this declaration or fails to affirm the annual civility pledge in the manner established by the State Bar would face possible fees and “eventually be placed on involuntary inactive enrollment or would have their special admissions registration suspended or terminated.”

Proposed Amendments to Rules Governing Minimum Continuing Legal Education

Finally, the State Bar proposes to amend the rules governing MCLE in a number of ways, including requiring at least one hour of education addressing civility in the legal profession.  According to the Proposed Rules, civility MCLE activity “must consist of education that addresses civility in the legal profession,” which would include education discussing the link between civility and bias, incivility that is directed at opposing parties or counsel, and incivility aimed at the judiciary.^[3] This would be a separate, stand-alone requirement (meaning it would not count towards ethics CLE), but the total number of MCLE hours required would not change.

The State Bar is seeking public comments on the above proposed changes by January 30, 2023.  A link to all of these proposals, and others, can be found here. Please note that while the State Bar Board of Trustees has released the proposed amendments for public comment, it has not yet recommended approval of the proposed amendments to the Rules of Court or Rules of Professional Conduct. 

The author thanks Allison Westfahl Kong for her review and contributions to this piece.

[1] The CCTF is a joint project of the California Judges Association and the California Lawyers Association.  In September, 2021, the CCTF issued a report, Beyond the Oath, setting forth “four concrete, realistic, achievable, and powerful proposals to improve civility in California’s legal profession.” The report may be found online here. We previously wrote about the proposals in Beyond the Oath here.

[2] Special admissions attorneys are attorneys authorized to practice law in California pursuant to a Rule of Court, including registered military spouse attorneys (rule 9.41.1), registered foreign legal consultants (rule 9.44), registered legal aid attorneys (rule 9.45), and registered in-house counsel (rule 9.46).

[3] According to the CCTF, the idea behind this requirement would be to “educate attorneys about the economic and human costs of incivility; provide lawyers with reasons and tools to change their own behavior if they are uncivil; teach lawyers how to help those who are uncivil change their behavior; help lawyers deal with stress and dissatisfaction caused by toxic uncivil behavior; and reduce bias-driven incivility.” (See Beyond the Oath, at 8-9).