By Julie Wolff
Civility is required in every aspect of the legal profession, from law school to practice. However, in the face of inequality and blatant cultural intolerance, attorneys face challenges to honor the California Guidelines of Civility and Professionalism, while still maintaining basic self-respect and pride.
The State Bar of California’s Introduction to California Attorney Guidelines of Civility and Professionalism (Abbreviated, Adopted July 20, 2007), begins:
As officers of the court with responsibilities to the administration of justice, attorneys have an obligation to be professional with clients, other parties and counsel, the courts, and the public. This obligation includes civility, professional integrity, personal dignity, candor, diligence, respect, courtesy, and cooperation, all of which are essential to the fair administration of justice and conflict resolution.
There is, however, no provision for publicly standing up for oneself when confronted with sexism, ageism, racism or any other type of discrimination. While an attorney may not be discouraged to report those who fail to comply with the Rules of Professional Conduct, there is certainly no encouragement to do so. Encouragement to report may lead to a more civil legal profession with attorneys who are encouraged to advocate for themselves when discriminated against.
It is easy to imagine challenges attorneys endure when faced by blatant confrontational discrimination based upon sex, gender, sexual orientation or country of origin. A few scenarios include a female attorney who is told by a client to “go back to Mexico” by her client; a male attorney is told by opposing counsel that opposing counsel hopes “he and his (male) partner are never able to adopt a child” because of their same-sex partnership; or the female attorney who is sexually harassed by a judge in the judge’s chambers.
In these instances, following the California Attorney Guidelines of Civility and Professionalism poses unique challenges for attorneys and may have unintended consequences to the fair administration of justice and conflict resolution.
The current guidelines give wrongdoer attorneys and clients a significant advantage because attorneys who are discriminated against have their hands tied by limited options proscribed by the California Bar. Firstly, the guidelines fail to fairly address what to do if your client is pounding his attorney with uncivil discriminatory behavior. California Rules of Professional Conduct Rule 1.116 (a) (3) (4), allows an attorney to withdraw from representation (with limitations) if “the lawyer’s mental or physical condition renders it unreasonably difficult to carry out the representation effectively; or the client discharges the lawyer.” Attorneys should be able to exit toxic situations to preserve their own mental health.
An attorney can ask the client to sign a substitution of attorney so the attorney can exit the case, but the client is under no obligation to comply or may blackmail the attorney by stating the client will only sign the Substitution of Attorney Form if the attorney does not charge the client for past services rendered. This puts the attorney in an unfair position.
Another option is for the attorney to use the ubiquitous “breakdown of communication” and expend further time and energy to request the court allow her to withdraw, without divulging the extent of the abusive and threatening discriminatory behavior of the client.1 These “remedies” certainly do not favor the mental health, emotional stability or sometimes even the physical safety of the attorney, despite California Professional Conduct Rule 6.1.
Encouraging victims to “respect” and give “courtesy” to their harassers has a consequence (intended or un-intended) for those victims to feel personally demoralized and dejected, and dispirited by the
legal profession.
The consequences of those feelings are that the most diverse and vulnerable members of our profession leave the full-time practice of law. With a lack of diversity in the practice of law, a fair administration of justice and conflict resolution is impossible.
As a profession, adherence to fairness in the administration of justice means acknowledging the challenges attorneys face when confronted by discrimination and providing attorneys a source of emotional support and economic stability to best cope in this time of inequality.
Julie Wolff is owner of the Law & Mediation Office of Julie O. Wolff.