The Significant Costs of Incivility and the Rules of Professional Conduct

By Alara T. Chilton

For many years, improving civility among lawyers has been a serious concern for the legal profession, including in California. In response, the State Bar, district courts, local bar associations, and other legal organizations have published civility codes and guidelines to help lawyers better understand what type of behavior is considered civil and professional. Unfortunately, many lawyers inaccurately view these publications as having little consequence if not followed. Such viewpoints are gravely misplaced.

Consider the case of In re Marriage of Davenport, where the California Court of Appeal found a lawyer’s letter to his opposing counsel “contained abusive, rude, hostile, and/or disrespectful language …” (In re Marriage of Davenport (2011) 194 Cal.App.4th 1507, 1534.)

The letter stated in relevant part:

Regarding your client’s failure to appear once again for his continued deposition, we too regret that your client chose not to appear. As you know, we duly noticed his continued deposition for 11/20/06–11/22/06. Once again, you offer the same tired, old, and shopworn excuse. Your continued blustering about mutually agreeable dates, efficiency and promptness, and convenience is pathetic when your client’s actions negate any semblance of cooperation. Talk is cheap. Actions speak louder than words. Your credibility is at stake here.

(Id. Emphasis in the original.)

 The Court of Appeal further expressed that the attorney’s statements to opposing counsel were “contrary” to the 2007 California Attorney Guidelines of Civility and Professionalism, and emphasized the “guidelines reflect that “attorneys have an obligation to be professional with … other parties and counsel, [and] the courts,” which “obligation includes civility, professional integrity, … candor … and cooperation …” (Id. at 1536; citing Guidelines Introduction, p. 1.) Moreover, the Court of appeal found substantial evidence that the attorney’s “mistreatment” of his opposing counsel “in his correspondence with them” supported the trial court’s ruling for for awarding $100,000.00 in statutory sanctions against his client. (Id. at pp. 1521, 1534–1537.) 

Therefore, as the lawyer in Re Marriage of Davenport learned, a lawyer’s failure to follow civility guidelines can have serious consequences to his reputation, as well as significant financial costs to clients.

Violating court civility rules may have even more serious consequences. Consider Civil Rule 2.1 (Professionalism) adopted in October 2020, in the Southern District of California. It provides a “Code of Conduct” that “establishes the principles of civility and professionalism” which governs the conduct of “judges, lawyers, court staff, and parties.” (Civil L.R. 2.1a.) The rule recognizes that although the legal system is adversarial, “the experience does not have to, and should not, be antagonistic or hostile,” nor should it be “confused with weakness.” (Id. at a.1.)

Those who violate Civil Rule 2.1 do so at their own peril, as the rule provides, “the Court may take any appropriate measure to address violations, including, without limitation, as set forth in Civil L. Rule 2.2.” Civil Local Rule 2.2 concerns discipline and provides:

In the event any attorney engages in conduct which may warrant discipline or other sanctions, the Court or any judge may, in addition to initiating proceedings for contempt under Title 18 U.S.C. 401[i] and Rule 42 Fed. R. Crim.P., or imposing other appropriate sanctions, refer the matter to the disciplinary body of any court before which the attorney has been admitted to practice.

(Civ. L.R. 2.2.) 

Thus, a lawyer who violates the Code of Conduct in Rule 2.1 faces the risk the court will impose sanctions and refer the matter to the disciplinary body of any court where she is admitted to practice.

It is argued that incivility in the legal profession persists because of the strong belief that zealous advocacy requires lawyers aggressively pursue every advantage that might be available to a client. Yet comment [1] to ABA Model Rule of Professional Conduct 1.3 (Diligence) states otherwise and provides:

“[A] lawyer must also act … with zeal in advocacy upon the client’s behalf” — “[a] lawyer is not bound, however, to press for every advantage that might be realized for a client … The lawyer’s duty to act with reasonable diligence does not require the use of offensive tactics or preclude the treating of all persons involved in the legal process with courtesy and respect.

(Comment [1] to ABA Model Rule 1.3.)

It follows that zealous advocacy requires civility. And although currently no language in the California Rules of Professional Conduct explicitly discusses civility, there are rules that promote it. A few are discussed here, including California Rule 3.1, which provides a lawyer shall not:

(1) bring or continue an action, conduct a defense, assert a position in litigation, or take an appeal, without probable cause and for the purpose of harassing or maliciously injuring any person; or

(2) present a claim or defense in litigation that is not warranted under existing law, unless it can be supported by a good faith argument for an extension, modification, or reversal of the existing law.

(Cal. Prof. Rule of Conduct, Rule 3.1)

Additionally, Rule 3.2 bars a lawyer from using “means that have no substantial purpose other than to delay or prolong the proceeding or to cause needless expense.” (Cal. Prof. Rule of Conduct, Rule 3.2)

And Rule 8.4 advances civility by baring a lawyer from “engag[ing] in conduct involving dishonesty, fraud, deceit, or reckless or intentional misrepresentation …,” as well as barring a lawyer from “engag[ing] in conduct that is prejudicial to the administration of justice …” (Cal. Prof. Rule of Conduct, Rule 8.4,1(c) and (d).)

In summary, civility codes and guidelines, as well as the ABA and California Rules of Professional Conduct encourage lawyers to conduct themselves with civility and professionalism, and simultaneously encourage zealous advocacy for their clients. While accomplishing these objectives may at times be challenging, the lawyer who does so not only protects her reputation as well as her client’s interests, but also protects her bar card.

---

[i] Title 18 U.S.C. 401 provides: A court of the United States shall have power to punish by fine or imprisonment, or both, at its discretion, such contempt of its authority, and none other, as-

(1) Misbehavior of any person in its presence or so near thereto as to obstruct the administration of justice;

(2) Misbehavior of any of its officers in their official transactions;

(3) Disobedience or resistance to its lawful writ, process, order, rule, decree, or command.