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special / Legal Ethics

Restoring civility in divisive times

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As an "old-timer" born in 1935, who has been a member of the California Bar for over 57 years, I have seen our society become openly hostile with increasing regularity. It seems everywhere we turn this expression of enmity seeps out of proliferating cracks in our national makeup. This trend is not restricted to the general population but has infected the very foundations of who we are as a people, from the grassroots to the seats of government, whether executive, legislative or the courts. It has become a national epidemic of gigantic proportions. Reminiscent of Pete Seeger's 1955 timeless popular song lyrics of the anti-war era in this country, "Where Have All the Flowers Gone," we now ask daily, where has our civility gone?

In 2011, the American Bar Association passed a resolution that "affirms the principle of civility as a foundation for democracy and the rule of law and urges lawyers to set a high standard for civil discourse as an example for others in resolving differences constructively and without disparagement of others." The resolution covers members of the legal profession in all areas of practice, governmental and non-governmental. So, as lawyers, how can we respond in a positive and responsible manner?

According to the ABA, retired Justice Anthony M. Kennedy has cautioned that we Americans have "hit a low point in our civic dialogue," expressing uneasiness regarding the political climate of anger and partisanship dividing this country. Urging "our duty to use freedom of speech in a responsible and kind way," he expressed his disappointment that "we're not doing it." While he didn't direct his comments to the Kavanaugh hearings, he was upbeat about the future of the court and noted that while senators are free to entertain political considerations in reviewing court nominees, "they should remember that politics has an ethical underpinning." Unlike the rest of society, he was upbeat about the future of the court because of the respect he said its members have for each other.

Rule 9.4 of the California Rules of Court, effective May 27, 2014, was adopted to supplement the attorney oath for new lawyers. The rule states: "In addition to the language required by California Business and Professions Code Section 6067, the oath to be taken by every person on admission to practice law is to conclude with the following: As an officer of the court, I will strive to conduct myself at all times with dignity, courtesy, and integrity." The word civility could be added specifically.

Rules about civility also can be found in other statutes besides the State Bar Act. The Bar ethics opinions also have tackled issues of civility. In addition, the courts have indicated an attorney has an obligation not only to protect the client's interests but also to respect the legitimate interests of fellow members of the bar, the judiciary, and the administration of justice. While zealously advancing the interests of a client, attorneys must conduct themselves with other lawyers in a manner that is well within candor and fairness. Scott B. Garner, MCLE Self-Study, "Attorney civility: When zealous advocacy crosses the line," State Bar of California (May 2016).

Society seems to be disintegrating all around us as we are increasingly submerged in conflicted public discourse -- political and otherwise. Rather than contributing to this disarray in the name of establishing the rights of our clients and supporting the current cause in which we strongly believe, as lawyers we have an obligation to calm the rhetoric and seek to infuse a measured approach to create a sense of tranquility and understanding regarding opposite points of view.

Historically, this has not been the traditional view of the legal profession nor how its members have been raised, either from within or without. But gone are the days of doing anything and everything for the sake of the client, so she can cross the finish line first. Hopefully, with some exceptions, we are learning that winning is not the goal, but rather being successful is what we need to achieve. Successful advocacy calls for acting with civility -- that includes keeping our voices and actions below the shouting level.

Conflict resolution expert Kenneth Cloke has said of the heavy load carried by our lawyers, "The burdens are destructive adversarial approaches to conflict, and the knowledge is our growing realization that legal advocacy can be unnecessarily divisive and harmful." Kenneth Cloke, "Lawyers as Agents of Forgiveness," California Bar Journal, (August 2013).

Cloke asks the critical question: "What might we do differently?" His answer is powerfully simple: "As lawyers, we can develop non-adversarial collaborative practices, promote the use of mediation and after encourage forgiveness." Beyond this, we can "release ourselves from adversarial emotions and recriminations ... [to] free ourselves from the past, reestablish control over the present, and move toward a more positive, healthier future." This requires acceptance of our respective roles in the conflict that in turn will release us from the "pain of the past."

Cloke sets forth certain steps to accomplish this. In simplified terms this encourages us to (1) remember what happened, (2) understand the other person's viewpoint, (3) identify why we hold on to the past, (4) choose to release ourselves from unforgiveness, and (5) design closure so we can accomplish reconciliation to move forward.

Robert Reich, former U.S. secretary of labor, has cautioned that, the "savage inequality America is experiencing today is deeply dangerous." You might ask why this is important here. Referring to the ABA resolution on civility, this takes the lawyer from the courtroom to the living room of society where all the various interests congregate. For the lawyer to fully discharge ethical responsibilities, she needs to move her skills to that living room and strive to pursue the "principle of civility as a foundation for democracy and the rule of law" and "set a high standard for civil discourse as an example...in resolving differences constructively and without disparagement of others."

As lawyers, we were trained to perform in the courtroom and follow the rules established for that arena. Now our ethics in this 21st century require that we also move outside that restricted forum and use our best efforts to heal a divisive society. This expanded responsibility puts the onus on the law schools to provide the appropriate education to prepare graduates to fulfill their future professional ethical obligations to be healers of the divisiveness we have created. This may be an unexpected responsibility but certainly, one that falls within the ethical expansion created by the ABA and many state bar associations such as ours.

Ever since the unexpected results of the 2016 national elections, and the further divisions emphasized by the 2018 midterms, we are forced to think about the deep disagreement and dissension buried within our society that seem to be opening daily. It is time for lawyers everywhere to step up to the plate, find ways to tone down the rhetoric and discover means to unite rather than continue to divide this nation. Unfortunately, some of the greatest offenders in these difficult times are lawyers, whether practicing or inactive, seeking a new life as those who govern. Civility requires actions that are polite and courteous. What we have seen among the participants of our divided society is anything but that. We are living in an intensely crucial time where new laws hew more closely than ever to our personal values. And, when things get personal, preserving civility becomes even more demanding.

Faced with this conundrum, Cloke calls our attention to the fact that it is not just the conflict over the issues themselves that divide us, but also as to whether there are in fact existing problems, where the responsibility lies, and how we can correct them. We must rise above "conflicting cultures, political and religious beliefs, attitudes, national processes and competitive economies, together with efforts to maintain power and control by means of hierarchy, autocracy, bureaucracy and national sovereignty." This prevents us "from reaching agreements, finding solutions and preventively addressing these issues before they spiral out of control." See Cloke, "Politics, Dialogue and the Evolution of Democracy: How to Discuss Race, Abortion, Immigration, Gun Control, Climate Change, Same Sex Marriage, and Other Hot Topics," pages 203-204. Dallas: Goodmedia Press 2018. Current and future members of the bar must accept the responsibility of protecting society, and not just pursue the economic and personal interests of themselves and their clients. The lawyers of today have been assigned an obligation normally not perceived or expected when they entered the halls of law schools.

Today, they are increasingly required to enforce civility while they are being held to a higher standard than customarily provided by the historical rules of professional conduct. It no longer is enough to rely on the bench and bar associations to prevent overly zealous histrionics in and outside the courtroom, rudeness, hostility, constant interruptions, use of derogatory names when referring to the opposition, and other bad behavior, emphasizing why it is essential to establish and uphold these new standards in our practice of law.

Not something lawyers anticipated when originally enrolling in law school, whenever that may have been. Welcome to the brave new world of legal ethics and professional responsibility.

A. Marco Turk is emeritus professor and former director of the Negotiation, Conflict Resolution and Peacebuilding program at CSU Dominguez Hills, and an adjunct professor of law at the Straus Institute for Dispute Resolution, Pepperdine University School of Law. He also comments regularly on important legal issues and provides coaching/consulting services and MCLE instruction in the practice of mindfulness for lawyers.

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Aditi Mukherji

Daily Journal Staff Writer
aditi_mukherji@dailyjournal.com

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