Civility should not be the exception

The law has always been a noble profession, made up of humans who can sometimes be ignoble. While I am not someone who believes in the "good old days" mentality (where civility was mixed with sexism, fraud, greed and other human vices), the practice of law could always be more civil.

In today's impersonal world, with its fake statistics and materially obsessed matrix, legal professionals frequently view their role as that of benched MMA fighters ready to employ some new technique to take down their opponent. Instead of realizing that they can get more with sugar than poison, they are obstreperous and confrontational. Even when they are not breaking rules, too many are breaking the profession.

How sad that we need civility rules for attorneys. Since 2014, anyone admitted to practice law in California has been required to take an oath under Rule 9.7 of the California Rules of Court: "As an officer of the court, I will strive to conduct myself at all times with dignity, courtesy and integrity." Before that, in 2007, the State Bar Board of Trustees adopted the "California Attorney Guidelines of Civility and Professionalism" as a model for members, voluntary bar associations, and courts. The California State Bar even created a Civility Toolbox to help lawyers know how to behave.

These, apparently, have not been enough. Recent stories about attorneys' bad acts seem to have caused enough hand-wringing across the profession that the State Bar has finally been compelled to take further action. On July 20, 2023, the State Bar's Board of Trustees approved proposed measures to further improve the civility of the state's attorneys. Those changes, based on recommendations of the California Civility Task Force, a diverse group of more than 40 lawyers and judges, are now awaiting the blessing of the California Supreme Court.

If approved, the measures would amend California Rule of Court 9.7 to require lawyers, beginning in 2024, to annually affirm or reaffirm their civility oath. New State Bar Rule 2.3 would document the change to the oath, and the Rules of Professional Conduct would be amended to state that lawyers can be disciplined for "abusive or harassing" behavior. New Rule of Professional Conduct 8.4.2 would define incivility as "significantly unprofessional conduct that is abusive or harassing and shall be determined on the basis of all the facts and circumstances surrounding the conduct."

How the annual oath will be taken and documented is not entirely clear, but the simple recitation of words once a year is not likely to improve lawyers' behavior. Since 2014, all new California attorneys have been reciting a civility oath, yet egregious conduct is on the rise.

The most significant part of the proposal may therefore be the imposition of disciplinary measures against lawyers who engage in incivility. When lawyers understand that their bad acts can have very bad consequences for their business, they may be less likely to send expletive-laden emails to each other, pointedly ignore their peers, or speak abusively to other parties.

But unless the incivility occurs in a courtroom, it may be difficult to pursue disciplinary measures against attorneys. Just as the "snitch" rule (better known as the ethical reporting obligation) raises discomfort within the profession, attorneys may think twice before reporting on each other. What constitutes "abusive or harassing" behavior will be in the eye of the beholder, and the State Bar may find itself in the middle of endless "he said/she said" contretemps. At what point is a lawyer's behavior beyond the pale?

The bottom line is that civility is essential to the fair and just operation of the law. It is the foundation for communication. When attorneys commit themselves to listening to each other, showing proper respect, and acting in a civilized manner, the entire profession - and the legal system itself - is stronger. It's time for lawyers to police themselves. Rules of ethics and civility were not meant to be broken but to ensure a system of fairness.