By Ellen A. Pansky

Pansky is a past Chair and current member of the LACBA Professional Responsibility and Ethics Committee. She specializes in Legal Ethics, State Bar regulatory matters and Legal Malpractice Law. The opinions expressed in this article are the author’s own.

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A pervasive lack of lawyer civility has long been a matter of concern. Former Supreme Court Justice Sandra Day O’Connor observed: “…[A]ttorneys have been spotted exchanging invectives and even engaging in shoving matches in front of various court clerks’ offices, an image that that recalls the description of modern-day litigation as ice hockey in business suits.” Justice O’Connor also stated: “We have lost sight of a fundamental attribute of our profession, one that Shakespear described in The Taming of the Shrew. Adversaries in law, he wrote, ‘[s]trive mightily, but eat and drink as friends.’ In contemporary practice, however we speak of our dealings with other lawyers as war – and too often we act accordingly.”[1]

It used to be that the oath and duties section of the State Bar Act, set forth in California Bus. & Prof. Code prohibited repugnant and offensive attorney conduct. However, in United States v. Wunsch, 84 F.3d 1110 (9th Cir. 1996) the Ninth Circuit concluded that Bus. & Prof. Code §6068(f)’s admonition that lawyers should abstain from “offensive personality” was void for vagueness. Nonetheless, that court appeared to acknowledge the propriety of the phrase “conduct unbecoming a member of the bar,” stating “We are confident that a rule can be drafted that gives attorneys sufficient notice of what conduct violates that rule.” Notwithstanding this suggestion, §6068(f) was excised from the statute, and no analogous provision has ever been adopted as part of the oath and duties section of the State Bar Act.

Notwithstanding the holding in Wunsch, the California State Bar has for many years been working to improve civility in the legal profession. In 2006, the Board of Trustees appointed the Attorney Civility Task Force, and in 2007, the Board of Trustees adopted the California Attorney Guidelines for Civility and Professionalism. The guidelines are accessible on the State Bar of California website. Atty-Civility-Guide-Revised_Sept-2014.pdf (ca.gov). 

It should be noted that California was not the first state to adopt civility rules, and more than 15 states have added a civility requirement to their attorney oaths required as a condition of admission to practice.

Effective May 27, 2014, the California Supreme Court adopted rule 9.7 of the California Rules of Court, requiring every person to certify upon admission to practice law in California: “as an officer of the court, I will strive to conduct myself at all times with dignity, courtesy, and integrity.”

Additionally, many Superior Courts in California have adopted local court rules, addressing requirements for civility and professionalism. Recently. the California Civility Task Force, a joint project of the California Judges Association and the California Lawyers Association, in cooperation with the California State Bar, published its initial report, in September 2021. Microsoft Word - California Civility Task Force Report ..doc

Against this backdrop, it is no surprise that the State Bar of California has adopted a compulsory civility Continuing Legal Education requirement as part of the 25 hours of MCLE that most California lawyers are required to complete each three-year period. The Civility MCLE is required starting in 2025.

In fact, courts have been decrying the lack of civility in the legal profession for many decades. “Lawyers and judges should work to improve and enhance the rule of law, not allow a return to the law of the jungle.” (Lossing v. Superior Court (1989) 207 Cal.App.3d 635, 641.) As was stated in Masimo Corporation v. The Vanderpool Firm, Inc (2019) 26 Cal.App.5th 127:

This court has in the past had occasion to deplore the lack of civility that has flourished in the legal profession in recent decades. In fact, we devoted an entire opinion, Lasalle v. Vogel (2019) 36 Cal.App.5th 127, to tracing the deterioration in the way attorneys now address and behave toward each other. As we observed in Kim v. Westmoore Partners, Inc. (2011) 201 Cal.App.4th 267, 293, “Our profession is rife with cynicism, awash in incivility. Lawyers and judges of our generation spend a great deal of time lamenting the loss of a golden age when lawyers treated each other with respect and courtesy.”

A serious lack of civility can have dire adverse consequences to the attorney who engages in it. In Karton v. Ari Design & Construction, Inc. (2021) 61 Cal.App.5th 734, 747, the court upheld the trial court’s monetary sanctions against the offending lawyer, noting: “Civility is an ethical component of professionalism.  Civility is desirable in litigation, not only because it is ethically required for its own sake, but also because it is socially advantageous: it lowers the costs of dispute resolution. The American legal profession exists to help people resolve disputes cheaply, swiftly, fairly, and justly. Incivility between counsel is sand in the gears…. All sides lose, as does the justice system, which must supervise the hostilities.”

The Karton decision went on to pointedly observe: “Incivility is the adult equivalent of schoolyard bullying and we will not keep looking the other way when attorneys practice like this. They will be called out and immortalized in the California Appellate Reports. Here, the lack of civility, throwing even more sand into the gears, coupled with the blatant and pervasive substantive discovery misuse could only have confirmed to the referee and to the court that monetary sanctions against Vanderpool were warranted in this case. We find nothing to quarrel with in that conclusion.”

Lest one might think that the Karton decision is an outlier, the same conclusion was reached again more recently in Snoeck v. ExakTime Innovations, Inc. (2023) 96 Cal. App. 5th 908, 925. The appellate court had no difficulty in upholding the trial court’s reduction of fees to be awarded to the counsel for the prevailing party, elucidating:

Litigation by its nature is contentious; the parties are in court because they do not agree. One side's frustration with the other side's legal theory is understandable. Certainly, attorneys must advocate for their clients’ positions, point out the flaws in opposing counsel's argument, and express disagreement with the court. But Snoeck's counsel's frustration did not give him a license to personally attack defense counsel and belittle the trial court. Smith's incivility does not reflect persuasive advocacy. A reasonable attorney would not believe that communicating with opposing counsel in such a way would "bring them around," so to speak. Nor does antagonizing the trial court help further one's client's cause. In short, Smith's beratement of opposing counsel and belittling of the trial court were unnecessary to advocate zealously on Snoeck's behalf.

Lawyers ought to heed the warnings to employ civility in the representation of clients and in serving as professionals who are officers of the court. Taking advantage of the new educational requirements to conduct ourselves with civility will improve the standing of the profession, add to the integrity of the legal system, and promote a more efficient and less stressful experience for all involved.