By Katie Parker
As noted in a recent Ethics in Brief column (here), an attorney’s persistent lack of civility can have concrete financial consequences. In the case at issue there, the California Court of Appeal affirmed the trial court’s reliance on lack of civility in reducing an attorney’s fee award. The Court observed that plaintiff’s counsel’s “beratement of opposing counsel and belittling of the trial court were unnecessary to advocate zealously” on his client’s behalf. Snoeck v. ExakTime Innovations, Inc., 96 Cal. App. 5th 908, 925 (2023).
Recognizing the pervasive effects of incivility on the legal profession and the justice system, the State Bar has proposed amending the California Rules of Professional Conduct to incorporate the requirement of civility and to make clear that lack of civility can result in professional discipline. The Bar accepted public comment last year, and the new Rule 8.4.2 will become effective upon approval by the California Supreme Court.
While we might think that attorneys don’t need (or shouldn’t need) a roadmap for how to be civil, this isn’t always the case. The attorney whose conduct was at issue in Snoeck—despite having referred to opposing counsel as “sleazy” and “cringeworthy,” and having referred to the trial judge as an “easy mark”—professed having no understanding of the concerns with his conduct. 96 Cal. App. 5th at 923.
Fortunately, the San Diego state and federal trial courts provide detailed guidance for their requirements as to civility and professionalism. Both courts, like many others, have adopted Codes of Conduct that specifically enumerate the behavior expected of counsel. The San Diego Superior Court endorsed and adopted the SDCBA’s Code of Conduct, which appears at the Preface to the Superior Court Rules. The U.S. District Court for the Southern District of California has its own civility rules, which are incorporated into the Local Rules as Civil Rule 83.4, titled “Professionalism.”
Both sets of standards emphasize the importance of courtesy and respect for counsel, the court, court staff, and witnesses. And both make clear that disputes should be handled professionally without disparaging an opponent’s personal characteristics, intelligence, or morals. Beyond that, each code of conduct lists specific examples of conduct that is considered “unprofessional.” For example, in state and federal litigation, attorneys should agree to reasonable requests for extensions, cooperation, or accommodation. In Superior Court litigation, an attorney should not propose a stipulation in the court’s presence unless the other parties have previously agreed to it. And the U.S. District Court expects counsel to, when possible, confer with opposing counsel before scheduling a deposition and to confer as early as possible whenever a deposition or hearing must be canceled or rescheduled.
These are just a few of the examples cited in the state and federal codes of conduct. Attorneys should become familiar with both sets of rules and work to ensure that zealous advocacy does not cross the line into unprofessional conduct. The District Court’s Local Rules make clear that while lawyers cannot use the rules to “incite ancillary litigation,” the court may take measures to enforce its professionalism rules. And with civility soon to become an explicit part of the California Rules of Professional Conduct, all lawyers should (re)familiarize themselves with the Courts’ professionalism expectations and ensure that they are not unwittingly demonstrating a lack of civility in their advocacy.