by Robert K. Sall
Lawyers sometimes confuse the duty of zealous advocacy with aggression, harassment, condescension, insults, and behaviors that are often effective at producing nothing other than animosity. Litigation is stressful enough without compounding the tense atmosphere of legalized battle with such conduct. Decades ago, there was a provision in the State Bar Act, Business & Professions Code section 6068(f) that mandated in relevant part: “It is the duty of an attorney . . . [t]o abstain from all offensive personality . . . .” However, in U.S. v. Wunsch, 84 F.3d 1110 (9th Cir. 1996), the Ninth Circuit found that provision to be unconstitutionally void for vagueness.
Many efforts have been made to encourage lawyers to refrain from rude, demeaning, or otherwise uncivil behavior in the practice of law. Through the efforts of the late Sheldon H. Sloan, then-president-elect of the State Bar Board of Trustees, the State Bar appointed the Attorney Civility Task Force in August 2006 to study and recommend aspirational civility guidelines.
In July 2007, following extensive work of the Civility Task Force and a period of public comment, the State Bar’s Board of Trustees adopted the California Attorney Guidelines of Civility and Professionalism (the “Guidelines”). These Guidelines remain available to attorneys in the Civility Toolbox on the State Bar’s website and may be accessed here: www.calbar.ca.gov/legal-professionals/legal-resource-center/ethics/attorney-civility-and-professionalism.
The stated purpose for the Guidelines was to provide a model “for members, voluntary bar associations, and courts to use and implement in a way that is effective for the legal community.” While encouraging practitioners to maintain professional conduct and cooperative, courteous communications even in the often tense world of litigation, the Guidelines are merely aspirational. They provide no basis for discipline or enforcement.
In the nearly twenty years since the Guidelines were adopted, many county bar associations, as well as state and federal courts, have adopted their own sets of civility guidelines to encourage professionals to be dignified, cooperative, and courteous, while implementing in most instances no particular means of enforcement.
The Orange County Bar Association adopted its Civility Guidelines in December 2016, making aspirational recommendations for lawyers to communicate in a professional business-like manner, extend professional courtesies, advise clients about the need for civility, show civility and cooperation during discovery (including scheduling), use professional conduct at depositions, and act with civility to the courts.
Civility allows for zealous representation, reduces clients’ costs, better advances clients’ interests, reduces stress, increases professional satisfaction, and promotes effective conflict resolution. These guidelines foster the civility and professionalism that are hallmarks of the best traditions of the legal profession.
Orange County Bar Association Civility Guidelines (Dec. 21, 2016), https://www.ocbar.org/Portals/0/pdf/docs/civility_guidelines.pdf.
The OCBA notes, however, that while its members are encouraged to adopt the guidelines as personal standards, they do not replace any rule or statute; and are not intended as an independent basis for sanctions, discipline, or more litigation.
In terms of regulating civility, the problem seems to be rooted in the difficulty of defining various types of uncivil conduct to impart sufficient notice to practitioners that their words or actions are crossing a line. May a lawyer be disciplined for conduct lacking in courtesy or good manners? As former State Bar Court Judge, Hon. Michael D. Marcus, wrote for ADR Services in his 2009 article Courtroom Conduct: “Civility has been defined as ‘well-mannered behavior toward others,’ ‘good manners,’ and ‘[a] courteous act that contributes to smoothness and ease in dealings and social relationships with others.’” Judge Marcus continued, “In the legal context, uncivil behavior (sometimes boorish, sometimes rude—but always over-the-top, unnecessary, and often prejudicial) is the cause for war stories as well as anger, frustration, and disappointment among the attorneys on the receiving end.”
Is it possible to regulate professional courtesy and good manners when we have such a hard time defining the opposite behavior? In its report Beyond the Oath: Recommendations for Improving Civility in September 2021, the Civility Task Force encouraged rule amendments, stating: “We are confident that a rule can be drafted that gives attorneys sufficient notice of what conduct violates the rule.” The report, among other things, recommended that the State Bar implement a requirement that lawyers licensed in California take one hour of Mandatory Continuing Legal Education (MCLE) devoted to training in civility, with the goal “to promote courtesy, integrity, and professionalism in the bar.” The report also recommended “meaningful changes to State Bar disciplinary rules, prohibiting repeated incivility and clarifying that civility is not inconsistent with zealous representation.” Id. In response, the State Bar acted to amend State Bar Rule 2.72 to require that at least one hour of the minimum twenty-five hours required of licensees during the applicable three-year reporting period be devoted to civility. This addition to MCLE requirements was approved in 2024 and took effect for all MCLE compliance periods ending January 31, 2025.
Acting further upon these recommendations, the State Bar in July 2023 submitted to the Supreme Court proposed amendments of the Rules of Professional Conduct. These included a proposed new Rule 8.4.2 that would define “incivility” to mean: “significantly unprofessional conduct that is abusive or harassing and shall be determined on the basis of all the facts and circumstances surrounding the conduct.” The rule would also prohibit such conduct. The State Bar also sought approval for new comments to Rule 8.4 (Misconduct) providing, in relevant part, that: “A lawyer also may be disciplined regarding significantly unprofessional conduct that is abusive or harassing.” And the State Bar recommended an added comment to Rule 1.2 that would confirm that, notwithstanding contrary instructions from the client, a lawyer retains the authority to agree to reasonable requests that would not prejudice a client’s rights, avoid offensive tactics, and treat all persons with dignity, courtesy, and integrity.
The State Bar in 2023 also sought to amend Rule 9.7 of the California Rules of Court (formerly 9.4) to add a civility pledge to the oath an attorney is required to take upon admission, and to recertify the oath annually. The oath had previously been modified in a 2014 amendment to the Rules of Court requiring that new admittees swear or affirm their commitment to strive at all times to conduct themselves with dignity, courtesy and integrity. The amendment sought by the State Bar in 2023 expanded this obligation to require that all lawyers, not merely new admittees, must take the civility oath as part of their annual recertification.
In a decision posted September 25, 2025, the Supreme Court approved the proposed amendments to Rule 9.7 of the Rules of Court requiring that all lawyers take the civility oath as part of their annual license recertification. The standard oath taken upon admission to practice law is set forth in Business & Professions Code section 6067. It reads:
[e]very person on his admission shall take an oath to support the Constitution of the United States and the Constitution of the State of California, and faithfully to discharge the duties of any attorney at law to the best of his knowledge and ability. A certificate of the oath shall be indorsed upon his license.
Added to this now is the requirement under Rule of Court 9.7 for all attorneys to make and annually recertify the following civility oath:
As an officer of the court, I will strive to conduct myself at all times with dignity, courtesy and integrity.
Effective October 1, 2025, each active licensee must declare adherence to the oath with the additional language on an annual basis. A new State Bar Rule 2.3(C)(1) was added such that, beginning on April 1, 2026, the failure of a licensee to submit the annual declaration required by this rule will result in the lawyer being enrolled as an inactive licensee of the State Bar. If that occurs, the screen on the State Bar’s website identifying the licensee will prominently state something like this, in bold red print: “Not eligible to practice law in CA.” Naturally, most licensees will take the additional civility oath.
But what about the proposed changes to the Rules of Professional Conduct? In its September 2023 Order, the Supreme Court rejected them. Not surprisingly, the Court expressed concerns over the vagueness of the definition, stating: “Although the Court appreciates the effort to promote civility, professionalism, and mutual respect within the legal profession, the Court is concerned that the proposed definition of prohibited incivility may present vagueness concerns under the First Amendment. See Gentile v. State Bar of Nevada, 501 U.S. 1030, 1049 (1991) (holding that an attorney disciplinary rule was void for vagueness because it relied on words that ‘have no settled usage or tradition of interpretation in law,’ and the rule ‘has no principle for determining’ what conduct is permitted or not permitted.)”
So, we now have an expanded oath that requires all licensees to strive to act with dignity, courtesy, and integrity. But we have no disciplinary rule to define uncivil conduct. Will the new addition to the oath be enforced? Considering definitions from Oxford Languages, “dignity” is the state or quality of being worthy of honor or respect, “courtesy” is the showing of politeness in one’s attitude and behavior toward others, and “integrity” is the quality of being honest and having strong moral principles. To “strive” means to make great efforts to achieve or obtain these qualities.
Under the State Bar Act we may be disciplined for violation of our oath. Business & Professions Code section 6103 provides: “A wilful disobedience or violation of an order of the court requiring him to do or forbear an act connected with or in the course of his profession, which he ought in good faith to do or forbear, and any violation of the oath taken by him, or of his duties as such attorney, constitute causes for disbarment or suspension.” (Emphasis added). Is it going to be a violation of the oath to fail to strive to act with dignity, courtesy and integrity? Do repeated instances of rudeness, or crass or discourteous conduct combine to make a failure to strive? What about repeated instances of profanity, loud outbursts, or demeaning statements? One can see a lot of room for ambiguity. We know that an attorney may be disciplined for repeated acts of dishonesty or corruption. Cal. Bus. & Prof. Code § 6106. May a licensee be charged with multiple incidents of being discourteous because that pattern demonstrates a failure to strive?
Business & Professions Code section 6068(a) requires attorneys to uphold the laws of the state, and subdivision (b) requires each of us to maintain the respect due to the courts and judicial officers. Uncivil conduct that is disrespectful to a court is already prohibited. In terms of discipline, such acts of incivility may be addressed through sanctions or charges based upon violation of the oath. It remains to be seen whether the civility oath added by Rule of Court 9.7 will find its way into enforcement by courts or the disciplinary process.
Despite its recent rejection of the proposed rule amendments, the Supreme Court has indicated a clear intent that aspects of civility should be enforced. As part of its September 2025 Order, the Court signaled a move in that direction, stating: “The Court encourages the State Bar to explore the possibility of codifying existing case law reducing requests for attorney fees based on an attorney’s incivility.”
Recent developments in case law have shown this to be an emerging trend that has apparently not gone unnoticed by the Court. For example, in Snoeck v. ExakTime Innovations, Inc., 96 Cal. App. 5th 908 (2023), the trial court applied a 40% negative multiplier to an adjusted lodestar calculation of over $1.14 million, “to account for [p]laintiff’s counsel’s . . . lack of civility throughout the entire course of this litigation.” In affirming the order awarding attorney’s fees, the court of appeal stated: “We agree a trial court may consider an attorney’s pervasive incivility in determining the reasonableness of the requested fees. A court may apply, in its discretion, a positive or negative multiplier to adjust the lodestar calculation—a reasonable rate times a reasonable number of hours—to account for various factors, including attorney skill. The record before us amply supports the trial court’s finding that plaintiff’s counsel was repeatedly, and apparently intentionally, uncivil to defense counsel—and to the court—throughout this litigation.” Id. at 911. Citing to the recommendations of the Civility Task Force, the Snoeck court stated: “Incivility may not serve as a basis for attorney discipline by the state bar—yet—but all licensed California attorneys are expected to conduct themselves in a civil manner.” Id. at 926. During oral argument in the trial court, the court noted, quoting from Karton v. Ari Design & Construction, Inc., 61 Cal. App. 5th 734, 747 (2021), that “civility in litigation tends to be efficient by allowing disputants to focus on core disagreements and to minimize tangential distractions. It is a salutary incentive for counsel in fee-shifting cases to know their own low blows may return to hit them in the pocketbook.” Id. at 921-22.
More recently, in Holloway v. County of Orange, No. 8:19-CV-01514-DOC-DFM, 2025 WL 3403358 (C.D. Cal. Oct. 14, 2025) [appeal filed Nov. 12, 2025], in fee proceedings in a civil rights case that lasted six years, the district court found many instances of misconduct by the plaintiff’s lawyer and not only applied a 40% reduction to lodestar, but also a reduction in the reasonable hourly rate as impacted by that conduct. Examples included:
“Much of this litigation’s tortured and prolonged existence is due to the inappropriate conduct of [attorney].”
“the witness questions posed by [attorney] during the trials were frequently redundant, compound, or argumentative, and consumed an extraordinary amount of time.”
“During depositions she slammed her fists on the table and threw documents across the deposition table. [Attorney] also made multiple statements during the deposition indicating that she did not care ‘what one specific judge says or does not do.’ She also repeatedly threatened to leave and became so argumentative that the court reporter was unable to read back counsel’s questions.”
The conduct continued as this matter proceeded to trial.
She failed to timely provide trial exhibits to [the] defendants’ counsel.
[Attorney] frequently interrupted the [c]ourt and disagreed with evidentiary rulings in front of the jury.
[Attorney] spontaneously walked out of the courtroom during the middle of proceedings.
[Attorney] verbally attacked and also disobeyed the [c]ourt’s rulings.
Holloway, 2025 WL 3403358, at *6-7.
One important observation in these decisions is that uncivil conduct increases the anxiety and cost of litigation, leads to delay, and is less valuable than civil conduct in the practice of law. A careful review of recent authorities coupled with the September 2025 recommendation of the Supreme Court leads the careful observer to conclude that a coming trend will be to reduce the value of an attorney’s services by acts of incivility in litigation practice, and repeated patterns are likely to have significant impact. Whether this will eventually find its way into the Rules of Professional Conduct or impact the unconscionability or reasonableness of fees an attorney charges on an hourly fee basis remains to be seen. In all events, let’s be careful out there.
Robert K. Sall is Of Counsel to Sall Spencer Callas & Krueger in Laguna Beach. He lectures frequently on lawyer conduct and legal ethics, and can be reached at rsall@sallspencer.com.
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