By Kristin L. Yokomoto
Deeply embedded in a functioning justice system is the concept that practicing attorneys act with civility towards each other, clients, and the court. While there is no precise and universal definition of civility, a non-legal dictionary defines it as “politeness.” Boston Bar Association Task Force on Civility in the Legal Profession Report, May 23, 2002, citing the Oxford Dictionary [6th ed. 1976] 182. Unfortunately, it is not uncommon to encounter a licensee who is less than appreciative of, competitive with, or rude to opposing counsel, judges, or clients. This lack of civility can apply equally to transactional attorneys, and also can easily creep into the law firm office arena between and among partners, associates, and staff.
The growing lack of civility in the legal profession is not a new topic of conversation. For years, there has been an increase in unprofessional conduct that can have a profound negative impact on individuals and the workings of the justice system. It has been said that, without a rule whereby incivility can give rise to a violation of an ethical or other rule subjecting an attorney to regulation and discipline by the State Bar, a reduction in incivility may not happen. Without any disciplinary rules prohibiting incivility, it may be challenging to provide any incentive to act with civility.
Focus on Incivility in the Legal Profession in 2006 As early as 2006, during Sheldon (Shelly) Sloan’s term as the President of the California State Bar, he published an article in which he echoed Santa Clara County Bar’s Code of Professionalism that “Civility and courtesy . . . are expected and not to be equated with weakness” and that “as stewards of the State Bar, it is up to the lawyers to figure out how to get the lawyers of California to sign on to a pledge to our new statewide code of professionalism and institute these ideals into action.” Sheldon Sloan, Let’s Open Wide the Pipeline to Diversity of Legal Profession, Daily Journal Corp., July 28, 2006.
In 2009, as a then Past President, Shelly, on behalf of the California State Bar, issued a letter wherein he stated:
As officers of the court with responsibilities to the administration of justice, attorneys have an obligation to be professional with our 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.
Letter from Sheldon H. Sloan on behalf of the California State Bar to Bar Leaders (July 17, 2009).
Due to Shelly’s passion for civility, in 2009, a State Bar task force created an online Civility Toolbox to help guide and educate attorneys and judges on civility and professionalism. The Toolbox included a voluntary pledge of civility to be made by attorneys. Sheldon Sloan’s awareness and attention to civility over fifteen years ago was an important contribution to the state’s focus and efforts to find ways to minimize incivility. The Civility Toolbox can be found on the State Bar website. The State Bar of California, Civility Toolbox (July 17, 2009), https://www.calbar.ca.gov/Portals/0/documents/ethics/Civility/Atty-Civility-Guide-Revised_Sept-2014.pdf.
Mandatory Civility Pledge for New Licensees in 2014 By 2014, in response to a further rise in incivility, many professionalism commissions, bar associations, and other legal organizations throughout the nation enacted voluntary civility codes. Jayne Reardon, Incivility and Professional EthicsAs an officer of the court, I will strive to conduct myself at all times with dignity, courtesy and integrity.” Cal. R. Court 9.7 (emphasis added). As such, since 2014, new lawyers 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 or her knowledge and ability” pursuant to California Business & Professions Code Section 6067, followed by the civility oath in Rule 9.7 as stated above.
The hope was that the oath’s new language would encourage attorneys to become more aware of civility and their treatment of others. However, because the oath with civility language in current Rule 9.7 only applies to newly admitted attorneys, out of an estimated 237,000 licensees statewide, approximately 150,000 on active status have not taken the civility oath and only an estimated 48,000 licensees have taken it. Also, it has not been sworn by any specially admitted attorneys such as in-house counsel, registered military spouse attorneys, certified law students, registered foreign legal consultants, registered legal aid attorneys, and others. Memorandum from Randall Difuntorum, Program Director, Office of Professional Competence, to Members, Board of Trustees, at 2 (Nov. 17, 2022). As such, only a small percentage of practicing attorneys have taken the civility oath.
While the overwhelming majority of practitioners have not taken the oath, it is also difficult to ascertain whether those who did take the oath recall taking it and, if they do, whether the oath has had any effect on their professional behavior. Moreover, there is currently no platform for the State Bar to regulate or address incivility. Without any manner for the State Bar to regulate and discipline incivility, it is questionable if the statutory oath with civility language has any more impact on an attorney’s conduct than other states’ voluntary civility codes and pledges.
California Civility Task Force (CCTF) Formed in 2021 In 2021, in response to a continuing rise in incivility in the midst of the world suffering a pandemic and political unrest, the California Lawyers Association and the California Judges Association, in association with the California State Bar, formed a joint task force, the California Civility Task Force (CCTF), which is comprised of more than forty lawyers and judges. The CCTF issued its initial report, which can be found on the California Judges Association website. The California Judges Association, Beyond the Oath: Recommendations for Improving Civility (September 2021), https://caljudges.org/civility.asp (CCTF Report).
The CCTF Report defines incivility as “discourteous, abusive, harassing, or other significantly unprofessional conduct” and notes that the Task Force is “open to adding further definitional language so lawyers can have clarity about what conduct is and is not prohibited.” CCTF Report at 12. The CCTF Report also warns that the impact of incivility is not only a danger to individuals but also a threat to the justice system itself. CCTF Report at 15.
Proposed Amendments to Rule 9.7 and the Civility Pledge in 2022 In hopes of reducing incivility and in response to the CCTF Report, California State Bar’s governing body, the Board of Trustees, approved a plan to advance the recommendation of the CCTF to amend Rule 9.7 to require that all active licensees who have not taken the civility pledge and all specially admitted attorneys to affirm, by a declaration, their commitment to the civility pledge no later than February 1, 2024, and annually thereafter when renewing their license. Failure to do so could result in late fees and eventual placement on inactive status or have their special administration registrations suspended or terminated.
If amended, all attorneys would be required to take the civility pledge that: “as an officer of the court, I will strive to conduct myself at all times with dignity, courtesy and integrity.” Cal. R. Court 9.7 (emphasis added). The proposed rule would also direct the State Bar to develop rules and procedures related to implementation, including how an attorney would affirm the civility pledge and when an attorney would need to demonstrate compliance. The State Bar would have the authority to set and collect appropriate fees and penalties for non-compliance.
If adopted by the Supreme Court, the proposed amendments would lead to increased work for the State Bar and costs to ensure all licensees comply with the pledge requirements and that those who do not are put on involuntary active enrollment. While an annual civility pledge cannot hurt and may be better than not having one to remind attorneys to act politely, it will likely be weighed against the time and cost of setting up and maintaining the pledge process and license updates.
Public comments to the proposed amended Rule 9.7 were due by January 30, 2023. The Board of Trustees’ proposed amendments can be found on the State Bar website. The State Bar of California, Proposed Amendment Requiring Attorneys to Complete Annual Civility Pledge (2022), https://www.calbar.ca.gov/About-Us/Our-Mission/Protecting-the-Public/Public-Comment/Public-Comment-Archives/2023-Public-Comment/Proposed-Amendment-Requiring-Attorneys-to-Complete-Annual-Civility-Pledge.
Proposed Amendments to Rules of Professional Conduct in 2022 There has long been discussion that a civility oath without any manner for the State Bar to regulate and discipline for incivility has no impact on an attorney’s behavior. However, there is also a shared concern among attorneys and certain committees such as state and county ethics and other associations that a civility rule which gives the State Bar the ability to discipline for incivility could, among other things, stifle an attorney’s activities protected under the First Amendment of the U.S. Constitution.
The CCTF proposed in its Report amending certain California Rules of Professional Conduct (CRPC) and the Comments thereto to clarify that civility is not inconsistent with zealous representation and to give the State Bar the ability to regulate and discipline for incivility by three amendments to the California Rules of Professional Conduct. The CCTF indicated its hope that “the mere existence of a disciplinary rule prohibiting incivility will spur civility,” but acknowledged that its proposed amendments could be controversial. CCTF Report at 12-13.
In response, the Board of Trustees requested input on its proposed amendments from the California Committee on Professional Responsibility and Conduct (COPRAC). COPRAC expressed concern that the proposed amendments would, among other things, impact an attorney’s protected activities under the First Amendment and be challenging to interpret and enforce as disciplinary standards. It offered suggestions, including COPRAC’s proposed amendments to CRPC 1.2 Comment [1] and 8.4, or alternatively, a standalone new rule to further the CCTF’s recommendations.
Upon the Board of Trustee’s review of COPRAC’s suggestions with the Office of Chief Trial Counsel (OCTC), the OCTC shared in COPRAC’s concerns regarding potential interpretation issues and that the rule changes may be difficult to enforce as disciplinary standards given the ambiguity inherent in CCTF’s proposed definition of incivility as “discourteous, abusive, or harassing or other significantly unprofessional conduct.” With the OCTC’s support, the Board’s staff recommended to circulate for public comment: (1) COPRAC’s proposed amendments to CRPC 1.2 Comment [1] and 8.4 requiring, among other things, that an attorney treat all persons with dignity, courtesy, and integrity and (2) an alternate staff-drafted proposed standalone rule derived from COPRAC’s proposal, which would be CRPC 8.4.2. The Board ultimately resolved to send the proposed amendments to the comments to rules 1.2 and 8.4 and the proposed new rule 8.4.2 out for public comment. This appears to have been the Board’s attempt to meet the CCTF’s belief that there needs to be a rule, not simply a comment, addressing civility and COPRAC’s First Amendment, interpretation, and enforcement concerns. Public comments were due by January 30, 2023. The Board of Trustees’ proposals can be found on the State Bar website. The State Bar of California, Proposed Amendments to the Rules of Professional Conduct Addressing Incivility (2022), https://www.calbar.ca.gov/About-Us/Our-Mission/Protecting-the-Public/Public-Comment/Public-Comment-Archives/2023-Public-Comment/Proposed-Amendments-to-the-Rules-of-Professional-Conduct-Addressing-Incivility.
Proposal for Attorneys and Judges Training While not part of any proposed amendment at this time, the Board of Trustees approved a plan for staff to review the proposal in the CCTF Report to add a new civility training requirement for minimum continuing legal education. Requiring attorneys to take a civility training could be helpful as civility can be subjective and one may not be aware of acting otherwise. Attorneys’ reaction to such proposal may depend upon whether it would add one hour to the required minimum hours or replace a current required hour. The CCTF Report also discussed providing training to judges regarding incivility and providing tools to help them to maintain civility inside and outside of the courtroom.
Additional Resources Clearly, incivility within the legal profession is a growing concern which, in California, has given rise to proposing to make the civility pledge mandatory for all currently licensed practitioners and amending existing rules or potentially creating a new rule to provide guidance on civility and a manner for the State Bar to regulate and discipline incivility. More information on guidelines on civility and professionalism adopted by various local bar associations and courts and articles on attorney civility and professionalism can be found on the State Bar website. The State Bar of California, Attorney Civility and Professionalism (2022), https://www.calbar.ca.gov/Attorneys/Conduct-Discipline/Ethics/Attorney-Civility-and-Professionalism.
Kristin L. Yokomoto is a partner at BakerHostetler in Costa Mesa where she focuses her practice on private wealth planning. Kristin is a Certified Specialist in Estate Planning, Trust and Probate Law by the State Bar of California Board of Legal Specialization. She is a member of the OCBA’s Professionalism & Ethics Committee and a contributing author of the Guide to the California Rules of Professional Conduct for Estate Planning, Trust and Probate Counsel (4th Edition). The views expressed herein are her own. She can be reached at komoto@bakerlaw.com.