By David C. Carr
Once upon a time in the 19th Century, a man named David Dudley Field had some time on his hands. As a lawyer, this man was naturally inclined to write a code, a popular activity at the time. Large parts of this Code, the Field Code, became the law in a few states, including California, which had absolutely nothing to do with the fact that Field’s brother, Stephen Field, was the fifth justice of the California Supreme Court.
The Field Code laid down rules for many things, including lawyer ethics. Among its sparklier gems was the edict: “It is the duty of an attorney…to avoid all offensive personality.” It passed through the 1872 Civil Code to its final resting place as section 6068(f) of the Business and Professions Code. Then it was murdered.
The killer was readily identified. The Ninth Circuit Court of Appeal. Their weapon was a decision called United States v. Wunsch 84 F.3d 1110 (9th Cir. 1995), where they found the term “offensive personality” unconstitutionally vague. The factual context was a misogynistic note sent by defense attorney Swan to the prosecutor Artson:
MALE LAWYERS PLAY BY THE RULES, DISCOVER TRUTH AND RESTORE ORDER. FEMALE LAWYERS ARE OUTSIDE THE LAW, CLOUD TRUTH AND DESTROY ORDER
Emphasis in the original. Swan had been disqualified as a result of a motion filed by Artson. The government filed a motion to sanction Swan, citing section 6068(f). The Ninth Circuit reversed, finding the term “offensive personality” to unconstitutionally vague.
Civility has been a focus of lawyer ethics for a long time. In 1836, a decade before Field wrote his Code, influential Baltimore lawyer David Hoffman wrote his Fifty Resolutions Regarding Professional Deportment, a seminal work in American lawyer ethics.[1] Hoffman’s first six resolutions are all concerned with civility, including his first
“I will never permit professional zeal to carry me beyond the limits of sobriety and decorum, but bear in mind, with Sir Edward Coke, that “if a river swell beyond its banks, it loseth its own channel.”
The years since 1995 saw many lawyers swelling beyond their banks and losing their channels, leading many to decry what was perceived as a serious loss of civility in the modern age (despite the emphasis on civility two hundred years ago).
As you would expect, task forces were convened, and civility codes were promulgated, both by the State Bar of California and local bar associations, more than a dozen of them. But none of them had teeth like former section 6068(f). Unlike the statute, they could not be enforced with professional discipline.
But we are now poised to return to the good old days. The Board of Trustees of the State Bar has approved new proposed Rule of Professional Conduct 8.4.2 and submitted it to the California Supreme Court for approval. The proposed Rule states, en toto:
Rule 8.4.2 Prohibited Incivility
(a) In representing a client, a lawyer shall not engage in incivility in the practice of law. (b) For purposes of this Rule, “incivility” means significantly unprofessional conduct that is abusive or harassing and shall be determined on the basis of all the facts and circumstances surrounding the conduct.
Comment:
[1] For guidance on conduct that may be significantly unprofessional that is abusive or harassing, a lawyer should consult the current California Attorney Guidelines of Civility and Professionalism and other relevant legal authorities, such as the local rules of court and bar associations’ codes of civility.
[2] A lawyer does not violate this Rule merely by, for example, standing firm in the position of the client, protecting the record for subsequent review, or preserving professional integrity.
[3] A lawyer’s violation of this Rule may also constitute a violation of rule 8.4(d).
[4] “Incivility” as used in this Rule does not apply to speech or conduct protected by the First Amendment to the United States Constitution or by Article I, section 2 of the California Constitution. “Incivility” as used in this Rule may include speech or conduct that violates an attorney’s duties under Business and Professions Code section 6068, subdivisions (b) and (f).
(See California Code of Judicial Ethics, Canon 3B, advisory commentary: Canon 3B(2) noting a judge’s responsibility to require lawyers under the judge’s direction and control to be patient, dignified, and courteous to litigants, jurors, witnesses, lawyers, and others.)
Much effort has been made in the Comments to avoid the void for vagueness problem of U.S. v. Wunsch, as well as acknowledge that the First Amendment may shield some speech. Have they succeeded? Section (a) prescribes what seems to be a high bar; it must be “significant” as well as “abusive or harassing.” We might not have good answers unless and until the State Bar Court (or some other court) weighs in in an appropriate case. That could take years.
Of course, it is possible that the California Supreme Court will not adopt Rule 8.4.2 or may adopt it with modifications, as they did with recently adopted Rule 8.3. The First Amendment issues are daunting. But the Office of Chief Trial Counsel will attempt to prosecute the Rule if adopted, so it should be taken to heart. In any case, the renewed emphasis on civility should cause California lawyers to keep cool, lest they swell beyond their banks.
[1] See Ariens, Lost and Found – David Hoffman and the History of American Legal Ethics, St. Mary’s
University School of Law Homecoming CLE (2014) .https://commons.stmarytx.edu/cgi/viewcontent.cgi?article=1001&context=faccle