RECONCILING THE DUTY OF ZEALOUS ADVOCACY AND CIVILITY

Written by Mark L. Tuft

The recent effort to regulate civility in the legal profession is a result of a reported increase in hostility and abusive and harassing conduct among litigators that obstructs the administration of justice and represents a growing loss of professionalism. The California Civility Task Force Report in 2021 was a call to action for further regulation to improve civility. As a result, recently amended California Rules of Court, rule 9.07 requires attorneys licensed or authorized to practice in California to annually reaffirm the lawyer’s oath, including the following pledge: "I will strive to conduct myself at all times with dignity, courtesy and integrity." Failure to reaffirm the civility pledge will result in a licensee being involuntary enrolled in inactive practice and suspension or termination of other attorneys’ authorization to practice law. California’s MCLE requirements have been updated to require training in civility and implied bias in the profession.

The Supreme Court has been asked to amend the ethics rules to make it clear that engaging in significant abusive or harassing behavior is conduct prejudicial to the administration of justice under Rules of Professional Conduct, rule 8.4(d). Another proposal would add new rule 8.4.2 that prohibits incivility in the practice of law or "related professional activities" (such as serving on bar committees). "Incivility" for purposes of the proposed disciplinary rule means "significantly unprofessional conduct that is abusive or harassing" to be determined on the basis of all the facts and circumstances surrounding the conduct.

Courts have become increasingly exasperated with acts of incivility that obstruct or delay litigation and are more inclined to impose monetary sanctions that could result in the offending lawyer having to self-report to the State Bar. (Bus. & Prof. Code, § 6068, subd. (o)(3) [duty to report nondiscovery sanctions that exceed $1,000].) Courts are also apt to refer the matter to the State Bar directly. (See § 6086.7, subd. (a).) Courts have become less reluctant to identify the offending lawyer in decisions published as a warning to lawyers to avoid disrespectful and harassing misconduct.