Articles are provided regularly by LACBA’s longstanding Professional Responsibility and Ethics Committee. 

by Andrew M. Vogel

Andrew M. Vogel is a Supervising Deputy Attorney General at the California Department of Justice and a member of the Professional Responsibility and Ethics Committee of the Los Angeles County Bar Association. The opinions expressed in this article are solely the author’s.

Incivility by lawyers and the problems it creates have become the subject of much discussion over the past two decades. In response, the State Bar in 2007 adopted a “Civility toolbox” that “provide[s] best practices of civility in the practice of law.”[i] The California Supreme Court then adopted California Rule of Court 9.7, requiring new lawyers’ oaths to affirm that “As an officer of the court, I will strive to conduct myself at all times with dignity, courtesy, and integrity.”[ii] Local bar associations and courts have followed suit by adopting their own guidelines for civil conduct.[iii] These measures might at first glance appear aspirational; after all, by itself “[i]ncivility may not serve as a basis for attorney discipline by the [S]tate [B]ar—yet …”[iv] However, the Court of Appeal’s recent decision in Snoeck v. ExakTime Innovations, Inc.[v] demonstrates that incivility can carry a tangible financial cost. The Court held that because civility is itself a measure of attorney skill, a lawyer’s lack of civility can warrant significantly reducing a prevailing party’s attorneys’ fees award.

Snoeck arose from an action by plaintiff Snoeck against his former employer, ExakTime. While employed by ExakTime as a sales representative, Snoeck’s pre-existing sleep apnea problem caused him routinely to fall asleep throughout the workday, including during weekly meetings. After several warnings, ExakTime offered and Snoeck took a leave of absence to address his medical problem. Snoeck delayed his return to work several times. While on leave, ExakTime terminated Snoeck’s employment.[vi]

Snoeck then sued ExakTime, asserting multiple claims under California’s Fair Employment and Housing Act (FEHA),[vii] which prohibits adverse employment actions or related employment practices against individuals with physical disabilities.[viii] Snoeck alleged that ExakTime, among other things, failed to reasonably accommodate his disability, discriminated against him based on his disability, and failed to engage in FEHA’s required interactive process to determine effective reasonable accommodations for his disability.[ix] At trial, a jury returned a verdict in Snoeck’s favor on all but one of his causes of action and awarded him damages totaling over $130,000. Snoeck moved unsuccessfully for judgment notwithstanding the verdict. The Court of Appeal affirmed.

On remand, Snoeck moved for attorneys’ fees under FEHA’s fee recovery provisions, requesting a lodestar amount of $1,193,870 plus a 1.75 multiplier, for a total of $2,089,272.[x] In opposing Snoeck’s motion, besides arguing that Snoeck’s fee demand was generally excessive, ExakTime also challenged the reasonableness of the fee request on the grounds that Snoeck’s counsel had engaged in “‘[d]eceptive, improper and unprofessional conduct’” during the trial court proceedings.[xi] After briefing, the trial court awarded Snoeck only $686,795 in fees. The trial court reached this result by first applying a 20% reduction across the board based on Snoeck’s counsel’s overstaffing and other billing concerns, and then applying a 1.2 positive multiplier to compensate Snoeck’s counsel for the contingent nature of its retention and the four-year duration of the litigation. These adjustments resulted in a revised lodestar figure of $1,144,659. However, most significantly, the trial court then applied a 40% negative adjustment to this figure to account for Snoeck’s counsel’s lack of civility toward both ExakTime’s counsel and the trial court, based on conduct discussed more fully below. This reduction resulted in a total fee award of $686,795.[xii]

On Snoeck’s appeal from the trial court’s ruling, the Court of Appeal affirmed. The Court explained that trial courts hold discretion to increase or decrease a requested lodestar attorneys’ fee award by applying positive or negative multipliers “based on a variety of factors.”[xiii] These factors include “the novelty and difficulty of the issues presented,” “the contingent nature of the fee award,” and—most significantly here—the “skill demonstrated in litigating” the action.[xiv]

The Court focused particular attention on this latter factor, explaining that “‘[c]ivility is an aspect of skill.’”[xv] Applying this premise, the Court cited numerous instances of Snoeck’s counsel’s incivility during the trial court proceedings that demonstrated substantial evidentiary support for the trial court’s decision to reduce Snoeck’s fee demand by 40%. These included: Snoeck’s counsel’s accusations that ExakTime’s counsel “‘lie[d],’” “‘committ[ed] fraud,’” and engaged in a “‘brazen con’” and “’sleazy’” and “‘cringeworthy’ conduct.”[xvi] The Court also cited examples of Snoeck’s counsel’s incivility not just toward ExakTime but also toward the trial court, finding that Snoeck’s counsel’s tone toward the trial court was “‘belittling and antagonistic’” and “‘verged on the contemptuous.”[xvii] Further, the Court cited emails between the parties’ counsel in which Snoeck’s counsel accused ExakTime’s counsel of making “‘a total fool of’” and “‘exploit[ing]’” the trial court, and treating the trial court as an “‘easy mark.’”[xviii]  And as the Court explained, Snoeck’s counsel continued these tactics on appeal, accusing ExakTime’s counsel of “‘dup[ing] the court of appeal,’” “making ‘intentional, calculated, and repeated misstatements of law and fact to the court,’” and presenting a “‘fraudulent defense’” and a “‘lie.’”[xix]

The Court therefore held that these and other acts of incivility demonstrated Snoeck’s counsel’s lack of skill and justified the trial court’s 40% lodestar reduction. The Court explained: “The [trial] court thus could have found the lodestar dollar figure here exceeded the fair market value for [Snoeck’s counsel’s] legal services given his lack of civility. As the court in Karton [supra] put it, ‘Excellent lawyers deserve higher fees, and excellent lawyers are civil.’”[xx] The Court elaborated: “The evidence also supports the trial court’s implied finding that plaintiff’s counsel presented the issues with less skill—through his incivility—than would be expected of comparably experienced attorneys … who conducted themselves with civility.”[xxi]

In so holding, the Court rejected Snoeck’s argument that the trial court could reduce his fee demand only if the trial court drew a direct correlation between particular uncivil acts and resulting increased litigation costs. The Court held that the trial court had discretion to find that Snoeck’s counsel’s civility in its totality, throughout the course of the litigation, “resulted in inefficient, fractious, and thus more costly, litigation.”[xxii] Nor, the Court held, was the trial court required to support its resulting negative lodestar multiplier by exhaustively identifying every instance of Snoeck’s counsel’s incivility.[xxiii]  Finally, by tying Snoeck’s counsel’s incivility directly to his degree of skill in litigating the action, the Court rejected Snoeck’s argument that reducing his lodestar fee demand impermissibly served to “punish” his counsel “for violating a ‘fictional’ ‘civility rule.’”[xxiv]

The trial court’s sharp reduction of Snoeck’s award for attorneys’ fees incurred over the course of four years, and the Court of Appeal’s pointedly-worded decision affirming it, demonstrate that incivility represents more than just a recommended aspect of legal practice or a goal to which lawyers should aspire. Rather, the unequivocal premise from which the Court reached its decision—that “civility [is] not just a moral good but an aspect of attorney skill”[xxv]—demonstrates that uncivil litigation conduct can affect lawyers’ financial bottom lines. That is the case, as the Court explained, even if an increase in specific litigation costs might not be directly traceable to a single nasty email, attack on an adversary’s credibility, disrespectful statement toward the court, or other uncivil act. Lawyers who do not wish to have their professional skill called into question by courts, and who wish to recover lodestar fees to compensate them for their work, would do well not to dismiss civility and the guidelines that encourage it as merely “fictional.”