The impact of California's new civility rules on ADR

For good reason, the California State Bar and the judiciary have focused on curtailing uncivil conduct in the legal profession. Not only have new rules been passed to stress the importance of civility, but the judiciary, through various opinions, has made clear that a lack of civility will not be tolerated. This article will discuss how the increased focus on civility in the legal profession may impact arbitrations and mediations in California.

Steps taken to address incivility

On July 20, 2023, at the State Bar of California's Board of Trustees meeting, the Board approved proposed measures, subject to California Supreme Court approval, to improve the civility of attorneys who are authorized to practice law in California. The proposed rules arose from the efforts of the California Civility Task Force, a joint project of the California Judges Association and the California Lawyers Association. Among the new rules proposed was to add State Bar Rule 2.3 to require all lawyers annually to reaffirm the oath of admission during license renewal and to amend the Rules of Professional Conduct to make incivility a basis for discipline.

Rules have already been passed to address uncivil conduct in the legal profession. For example, California Rules of Court 9.7, which sets forth the oath requirement for new California State Bar admittees, now requires newly licensed attorneys to declare the following: "As an officer of the Court, I will strive to conduct myself at all times with dignity, courtesy and integrity."

Rule 2.72 of the State Bar of California was recently amended, starting with the compliance period of Jan. 31, 2025, to require one hour of Continuing Legal Education on civility in the legal profession. Since the adoption of this amendment to Rule 2.72, CLE panels on civility have been quite popular (for good reason).

The judiciary has made clear that uncivil conduct will not be tolerated

Courts have taken strong action against counsel who act unprofessionally. In Kim v. Westmoore Partners, Inc., 201 Cal.App.4th 267 (2011), for example, the appellate court sanctioned counsel $10,000 for lying to the court by seeking an unwarranted extension, seeking sanctions against opposing counsel for no reason, and not showing remorse for the improper conduct. Similarly, in In re Mahoney, 65 Cal.App.5th 376 (2021), the appellate court issued contempt sanctions of $2,000 against an attorney for filing a petition for rehearing in which he impugned the integrity of both the trial court and the appellate court by filing nine pages of text that more closely resembled a rant than a petition.

A recent court of appeals decision has addressed uncivil conduct by counsel differently. Instead of sanctioning counsel for being uncivil, the court in Snoek v. ExakTime Innovations, Inc., 96 Cal.App.5th 908 (2023), reduced counsel's attorney's fee award because of counsel's uncivil conduct throughout the litigation. The court reasoned that "[a]ttorney skill is a traditional touchstone for deciding whether to adjust a lodestar [and] civility is an aspect of skill." The court reduced plaintiff's counsel's attorney fee request by a staggering forty percent ($457,863) based upon its finding that the lodestar calculation should be adjusted downward because counsel failed to act professionally during the litigation.

Impact of focus on civility in ADR

The renewed focus on civility will impact both arbitration and mediation in California. The impact on arbitration will be more apparent. Relying on cases such as Kim and Snoek, arbitrators will be more willing to sanction attorneys or reduce attorney fee awards because of counsel's unprofessional conduct. This should have a deterrent effect on uncivil conduct going forward.

The impact on mediation will be more nuanced. When I started practicing law, it was quite common for mediation to start with a joint session with all parties and counsel in one conference room. Having a joint session now is rare. I often conduct mediation with the parties and counsel kept apart for the entirety of the mediation. I do so to make sure that the parties and counsel are able to speak freely. In part, this is from fear that the antagonism of the parties and counsel will have a deleterious impact on open and frank discussion.

It may be that the increased emphasis on civility will be an avenue to make the joint session much more commonplace in mediation. I have, in limited circumstances, brought attorneys and parties together in mediation with remarkable success. The increased understanding of the importance of civility in litigation may make the parties more comfortable expressing themselves even when all parties and counsel are together in the same conference room.

Conclusion

The State Bar's and judiciary's emphasis on the importance of civility in the legal profession will hopefully do away with the practice of counsel using incivility as a tactical advantage. Sanctioning attorneys or having attorneys' fee awards reduced should deter uncivil conduct. The focus on civility in the legal vprofession may also lead to joint sessions in mediation being a much more commonly used tool. Having the parties seated together in the same room would indeed be beneficial and should be the norm for fostering a conducive environment for settlement.

Alan S. Petlak is a mediator and arbitrator at Judicate West. He can be reached at apetlak@judicatewest.com.