By Stacy Plotkin-Wolff
“Lawyers who know how to think but have not learned how to behave are a menace and a liability to the administration of justice.” Excerpts From the Chief Justice’s Speech on the Need for Civility, New York Times, May 19, 1971, Page 28. More than fifty years later, the California State Bar proposed amendments to the California Rules of Professional Conduct, including Rules 1.2 and 8.4, and the introduction of new Rule 8.4.2 to specifically address civility. The California Supreme Court is poised to adopt these long-debated civility rules, which would make California the fifth state to adopt such rules. What are the proposed rules, how will they be enforced, and who will enforce them?
The amendments to Rule 1.2 highlight that attorneys have the authority to act with civility, including agreeing to reasonable requests from opposing counsel or self-represented parties, even if their client directs otherwise, provided the client’s rights are not prejudiced. The Amendments to Rule 8.4 clarify that lawyers may be disciplined for engaging in uncivil conduct. The new proposed Rule 8.4.2 is a standalone rule addressing civility. Subpart a mandates that “in representing a client, a lawyer shall not engage in incivility in the practice of law or related professional activities.” Subpart b defines “incivility” as “significantly unprofessional conduct that is abusive or harassing and shall be determined on the basis of all the facts and circumstances surrounding the conduct.”
A key question surrounding the civility rule is enforcement. Unlike traditional ethical violations, such as dishonesty or conflicts of interest, incivility can be subjective and context dependent. Arizona, Florida, Michigan, and South Carolina incorporated civility in their mandatory rules in 2003, 2013, 1993, and 2004, respectively. Arizona, Michigan, and South Carolina handle mandatory civility complaints through the disciplinary counsel of their respective state bars thereby avoiding the concern of attorneys bringing the situation to their judge’s attention. Judges may also refer civility to the state bar. Each of Florida’s twenty circuit courts maintains a Circuit Committee on Professionalism that handles complaints informally. That committee passes more serious cases to the Attorney Consumer Assistance and Intake Program (ACAP) or the Florida State Bar. ACAP attempts to mediate and resolve complaints before a formal grievance proceeding occurs.
California’s process for handling civility complaints will most likely be similar to the process used in Arizona, Michigan, and South Carolina. Judges already have the inherent authority to sanction attorneys for inappropriate behavior in court. The new rule could provide additional justification for sanctions, including monetary penalties or reporting the attorney to the State Bar for further disciplinary proceedings-or both.
For those of you concerned that the new rules would increase unnecessary complaints, rest assured, the history in the four states with mandatory civility rules demonstrates that one act of incivility is unlikely to lead to sanctions or a tarnished career. In the four states that require civility from their lawyers, incivility is usually not found as the sole issue in the published opinions. Furthermore, civility rules do not inhibit zealous advocacy: instead, the focus is on behavior – whether the conduct is discourteous or disruptive. In other words, fighting hard and fairly is acceptable. Fighting dirty is not.