Wendy L. Patrick
Wendy is a California lawyer, past chair and advisor of the California State Bar Ethics Committee (Committee on Professional Responsibility and Conduct), and past chair of the San Diego County Bar Association Legal Ethics Committee. Any opinions expressed here are her own, and do not reflect that of her employer. This article does not constitute legal advice.
Effective advocacy is ethical, equitable, and inclusive. It requires promoting and maintaining a culture of civility and respect – for clients, counsel, and the bench. But in the heat of battle, especially if you fear you are on the losing side, maintaining a fair playing field can become challenging. Thankfully, there are plenty of tactics, strategies, and best practices designed to preserve a professional presentation of your case, that comports with relevant ethical rules, standards, and civility guidelines. Within modern advocacy, professional case presentation includes compliance with rules and guidelines governing ethics and civility, as well as the elimination of bias.
The art of graceful disagreement
The effectiveness of our adversarial legal system is perfected through a combination of talent and temperament. An effective lawyer is able to achieve both reverence and respect through advocacy combined with civility and fair play. Yet civility also requires addressing the problem of bias, either overt or implicit. Intentionally creating an atmosphere of fair play and respect decreases animosity in the courtroom, promotes good faith negotiation, and will ultimately both benefit clients and improve the public perception of the profession.
The State Bar has long had a “Civility Toolbox,” which discusses best practices in the area of lawyers interaction and responsibilities with clients and the public, case related conduct including scheduling, requests for continuances, motion practice, communications with adversaries and the court, dealings with nonparty witnesses, trials and hearings, ex parte communications, and even social relationships. Civility guidelines have also been adopted by individual jurisdictions up and down the golden state, including many of the same areas. The California State Bar has recently, however, recognized the link between civility and the elimination of bias.
Leveling the playing field: the link between civility and bias
The California State Bar now recognizes a subfield credit entitled “civility in the legal profession,” which includes education that encompasses not only the link between civility and bias, but incivility specifically directed at opposing parties, counsels, or toward the judiciary. Successful implementation of this new requirement should include consideration not only of the Civility Toolbox and individual bar association civility guidelines, but also of California’s adoption of the ABA version of rule 8.4, concerning discrimination.
As of Nov. 1, 2018, when California officially adopted a version of the ABA Model Rules of Professional conduct, relinquishing our previous status of being the lone holdout state to adopt a version of the national rules, we broadened the scope of formalized ethics rules, but with some important distinctions. Rule 8.4 was one of those distinctions.
Prohibited discrimination, harassment and retaliation
California Rule 8.4.1(a) Prohibited Discrimination, Harassment and Retaliation states in pertinent part that in representing a client, a lawyer shall not “unlawfully harass or unlawfully discriminate against persons on the basis of any protected characteristic; or unlawfully retaliate against persons.” Subdivision (b) states that in relation to a law firm’s operations, among other prohibitions, lawyers shall not on the basis of any protected characteristic, “unlawfully discriminate or knowingly permit unlawful discrimination.” Note also that in Comment [2], the rule explains that the conduct prohibited by paragraph (a) includes conduct in a proceeding before a judicial officer.
For purposes of rule 8.4.1, “protected characteristic” is defined as including “race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, sexual orientation, age, military and veteran status, or other category of discrimination prohibited by applicable law, whether the category is actual or perceived.”
Of significance to California practitioners, among the national provisions California did not adopt is language found in ABA rule 8.4(g), which as discussed in ABA rule 8.4 comment [4], states that “conduct related to the practice of law” includes not only representing clients and interacting with other lawyers, witnesses, and court personnel, but also “participating in bar association, business or social activities in connection with the practice of law.”
Yet our commitment to civility no doubt extends to interacting with others, in and out of the courtroom, regardless of where we are.
From the conference room, to the locker room, to the courtroom
One theme of the intentional blend of civility and the elimination of bias is recognizing the link itself. Given the range of situations where we interact with others in the justice system, it makes sense to consider where lapses of judgment may occur. Water cooler conversation or cocktail party gossip sometimes includes provocative statements or comments made about other lawyers or judges, some of which would be highly inappropriate to put “on the record.” Yet these are the situations where lawyers have an opportunity to lead by example. Declining to engage or proactively turning the conversation to more appropriate topics continues to be one of the techniques both lawyers and judges have used for years to remedy discussions going downhill. Even law students and junior lawyers can use redirection in such situations, in order to avoid beginning their career being called as a witness to an allegation of impropriety, or worse yet, a State Bar investigation as a witness against a senior partner.
Another strategy involves praising positive behavior. For lawyers reluctant to directly call out colleagues and co-workers for insensitivity or incivility, proactive praise of inclusivity and civility is an effective alternative. Many of our colleagues, members of both bar and bench, consistently behave in a manner that is upright and honorable, making us proud of our chosen profession. Recognizing commitment to civility and professionalism recognizes and motivates respectable behavior.
Promoting best practices in and out of the courtroom allows us to maintain a reputation of integrity and respect, enhances relationships with clients, court, and counsel, and increases the chances of success, both personally and professionally.