California’s new civility MCLE requirement should focus on bias-driven incivility

In September 2021, the California Civility Task Force, sponsored by the California Lawyers Association and the California Judges Association, issued a report proposing four key initiatives for improving civility within the legal profession. One of the Task Force's original proposals was to require one hour of MCLE civility training that "should highlight the link between bias and incivility and urge lawyers to eliminate bias-driven incivility." "Beyond the Oath: Recommendations for Improving Civility [Civility Task Force Report]," Sept. 2021, at 3. After multiple public comment periods, the State Bar Board of Trustees approved a slightly revised proposal to require one hour of civility MCLE training, without the emphasis on the relationship between incivility and bias.

To address the Task Force's recommendation, the State Bar revised State Bar Rule 2.72, which will go into effect for all attorneys beginning with the MCLE compliance period ending Jan. 31, 2025. State Bar Rule 3.601 does state that civility training can include training which addresses a "link between civility and bias"; however, unlike the Task Force's recommendation it does not require that such training focus on this link. Instead, the Rule states that civility training may also focus more broadly on incivility "directed at opposing parties or counsel" or "aimed at the judiciary."

As the Civility Task Force recognized, "[U]nfortunately, young lawyers, women lawyers, lawyers of color, and lawyers from other marginalized groups are disproportionately on the receiving end" of uncivil behavior. Civility Task Force Report, at 2. While it is important to provide training on uncivil behavior in general, it is equally, if not more important, to call out such behavior that occurs based on gender, race, ethnicity, and other protected characteristics.

Bias against women and minority attorneys, both implicit and explicit, persists within the legal profession. See, e.g., American Bar Association's Commission on Women in the Profession et al., "You Can't Change What You Can't See: Interrupting Racial and Gender Bias: Within the Legal Profession," 2018. And such bias is expressed through uncivil behavior not only by opposing counsel but also within organizations.

Many women and other underrepresented attorneys reading this article have probably experienced such behavior. Anecdotally, I've both seen and experienced uncivil behavior from opposing counsel, from use of terms of endearment ("dear," "honey," "sweetie") and inappropriate comments on my appearance and other "feminine" characteristics (clothing choices, face, voice, etc.). In one memorable meet and confer, I witnessed a female partner referred to as "princess" by opposing counsel. Of course, these are not the most egregious offenses.

Personally, I mainly chose not to address offensive comments. Why? Because in the moment I wanted to avoid conflict and preserve meet and confer efforts. But I did this at a cost to my personal well-being. This is not a choice we want lawyers to have to make, but it is often a choice that women and minority lawyers do make.

The cost of incivility toward women and lawyers of color is not only a cost to them but to the entire profession. As the Civility Task Force recognized, uncivil behavior has caused "a loss of stature and public respect" for the legal profession. Civility Task Force Report, at 4. Incivility also affects attrition rates. Those who experience incivility in the course of their jobs, even if it is from opposing counsel, are more likely to leave. And while the revised Rule does not address incivility within organizations, it is important to note that lawyers who are uncivil to opposing counsel are likely uncivil toward their coworkers, which again affects productivity and attrition.

Because bias-based incivility is a systemic issue, it requires a systemic solution. Even if individual lawyers, like me, spoke up every time they experienced uncivil behavior it would not solve the problem. While bias-driven incivility is part of much larger societal issues, civility training focusing on the link between bias and incivility is a step in the right direction. While not required, hopefully, providers of MCLE training will choose to provide civility education that concentrates on this issue. In my role as the Diversity Director of the Barristers Club of the Bar Association of San Francisco, I certainly plan to develop such programming.