By Anne Kammer
Coffee talk — morning discussions at the office centered on the hasty ingestion of caffeine, catching up on office gossip, sharing thoughts about last night’s episode of [fill in the blank] and scoffing over President Trump’s latest “outrageous” tweet. The last topic often seems sufficiently noncontroversial — the President’s Twitter activity appears to be bipartisan in its bemusing effect on people. But what happens when the President tweets something that actually makes sense, reflects a specific political viewpoint and it somehow sneaks into the morning coffee talk anyway? For example, after the Supreme Court issued its ruling last summer in Janus v. American Federation of State, County, and Municipal Employees, Council 31, et al., President Trump commented positively on the ruling in a subsequent tweet:
The Janus case involved issues of sincere interest to attorneys across practice areas, including the Free Speech Clause of the First Amendment and the principle of stare decisis. The ruling had significant implications for the ability of labor unions to collect dues from nonmembers, a consequence viewed by many — including President Trump, see above tweet — as having important political ramifications. In other words, it was a big deal, something that a group of attorneys might have wanted to discuss and chat about over morning coffee, right? Not so fast.
After conducting a nonscientific survey of a number of local attorneys, the majority indicated that if someone had brought up President Trump’s tweet about the Janus ruling at the office, they would have felt most comfortable “changing the subject.” That seems like a fair reaction, but also an unsatisfying one. As citizens, we are taught to care deeply about our country. As adults, we develop political beliefs informed by our culture, morality and environment. As attorneys, we learn to identify important legal issues, opposing positions and argue about them. So why should intelligent, educated and civic-minded individuals eschew discussing an important Supreme Court ruling simply because President Trump tweeted about it? What are we afraid is going to happen if we disagree?
Reasonable minds may differ over the appropriateness and appeal of engaging in political discourse in a professional setting, but odds are it has happened and will happen again. Tip O’Neill’s sentiment that “all politics are local” may well and truly be dead — thanks in no small part to the dawn of an age in which one might utter the phrase “President Trump’s Twitter rant.” But while politics may be trending generally toward nationalization, talking about politically charged issues remains personal and therefore retains a parochial nature. Not everyone takes to Twitter when they want to comment about public affairs. Most of us still do things the old-fashioned way — we actually speak words to another human being. And because we spend countless hours of our days at work, this includes colleagues and co-workers, in addition to friends and family. People insist that our nation’s politics has become increasingly polarizing. If this is true, or even if it is just the common perception, can politicized legal discourse be civil? Is it possible to talk about legal issues with political implications without resorting to fisticuffs at the office? The answer proffered here is “yes,” and members of the legal profession already have rules in place for how to do so.
On July 20, 2007, the Board of Governors of the State Bar of California adopted the California Attorney Guidelines of Civility and Professionalism. Less than a year later, the San Diego County Bar Association introduced an updated Attorney Code of Conduct as part of its 2008 Campaign on Civility, Integrity and Professionalism. Both the Guidelines and the Attorney Code address the duties members of the legal profession owe to one another and the manner in which we should strive to communicate with one another. According to Section 4 of the State Bar Guidelines, “[a]n attorney’s communications about the legal system should at all times reflect civility, professional integrity, personal dignity and respect for the legal system.” The commentary specifically instructs that “[a]n attorney should avoid hostile, demeaning or humiliating words” while contemporaneously acknowledging that “an attorney’s good faith expression of dissent or criticism made in public or private discussions for the purpose of improving the legal system or profession” is not prohibited. Likewise, the SDCBA’s Attorney Code instructs that “[l]awyers must remember that conflicts with opposing counsel are professional and not personal; vigorous advocacy is not inconsistent with professional courtesy.”
These standards for civility bolster the profession by minimizing personal animosity, encouraging humility and cultivating diversity. If we aspire to these same standards in our day-to-day interactions with co-workers and colleagues, we can communicate about anything — including tricky legal issues with thorny political implications — with respect and without hostility to contrasting viewpoints. Members of the legal profession should want to converse with their colleagues about matters of consequence and should be able to do so while fostering an inclusive atmosphere tolerant of diverse viewpoints, amenable to deliberation and discussion. Civility and professionalism are required in the courtroom and the conference room. They should be present in equal measure at the water cooler and the lunch table. Easier said than done? Of course, but civility is by its nature aspirational, and practice makes perfect.
So, what happens the next time President Trump tweets about an important Supreme Court ruling and someone at the office brings it up over morning coffee talk? One option is to change the subject. But another option is to talk about it. After all, if lawyers can’t have an interesting conversation or an informed debate about the law, who can?
Anne Kammer (anne_kammer@casd.uscourts.gov) is a judicial law clerk in the Southern District of California.