Preview of coming attractions: Proposed professional rule on civility is no longer an aspiration

By now, most lawyers and judges are familiar with the State Bar Civility guidelines, as well as local court rules and other aspirational codes and best practices promulgated by individual Bar Associations emphasizing the goal of courtesy and collegiality within the justice system. Unfortunately, they are also familiar with the continuing struggle to foster compliance with these well-intentioned and valuable recommendations. But that may change.

Enacting enforcement: Proposed Rule 8.4.2

The California State Bar, in order to increase civility within the legal profession, proposed some long-awaited changes that were previously sent out for public comment. In addition to proposing amendments to California professional rules 1.2 and 8.4, scope of representation/allocation of authority and misconduct, respectively, they also proposed new rule 8.4.2, which would prohibit a lawyer from engaging in incivility in the practice of law. This new rule was proposed based on recommendations of the State Bar Committee on Professional Responsibility and Conduct and the California Civility Task Force. Codifying currently aspirational guidelines into an actual professional rule would mean that lawyers could be professionally disciplined for incivility, which would presumably command the attention even of lawyers who routinely test the boundaries of zealous advocacy.

After proposed new rule 8.4.2 was sent out for initial public comment in 2023, it was modified to prohibit a lawyer from engaging in incivility within legal practice, and also changed so that it would no longer cover incivility within "related professional activities."

Proposed revisions to the comments sections after initial public comment include changing Comment [1] to direct lawyers that they should consult the California Attorney Guidelines of Civility and Professionalism and other legal authorities that apply, changing Comment [2] to specify instances of conduct that would not include stand-alone violations, and altering Comment [3] to ensure lawyers understand this rule applies to both speech and conduct.

Civility as a theme

The State Bar has also suggested civility be incorporated into other rules. Within rule 1.2, which defines the scope of representation and allocation of authority, Comment [1] as modified would make it clear that lawyers maintain authority to behave civility, which includes the all-important option of deciding to agree to reasonable requests made by opposing counsel or parties who are pro per, even over the objection of their client, as long as the client's rights are not prejudiced. 

Several Comments in rule 8.4, misconduct, would similarly cross-reference rule 8.4.2, describing the ways in which the rules should be read together--a hallmark of California's set of rules in general, which were adopted Nov. 1, 2018, bringing the state into compliance in substantial form, particularly with our rule numbering system, with the ABA as well as the rest of the nation.

Aspirations spring eternal

Even with the adoption of proposed rule 8.4.2, most lawyers and judges would agree there is work to be done. There will be concerns over reporting and enforcement, subjective versus objective perceptions of uncivil behavior, balancing civility with the client's rights and demands, and a potentially broad range of potential mitigating circumstances that may contribute to uncivil behavior. However, many practitioners and courts welcome the proposed rule as a step in the right direction as lawyers and clients could reap significant benefits from a system where personalities yield to legal procedure, and justice is prioritized.