12 Steps to a Healthier Law Practice in 2020: Step 11 – Actions Speak Louder Than Words

Two years ago, in November 2018, 69 new or amended California Rules of Professional Conduct (“CRPC”) were thrust upon California’s more than 250,000 lawyers. These rules were renumbered and reorganized to align with the American Bar Association’s (“ABA”) Model Rules and replaced the 46 ethics rules that California lawyers had been following for nearly 30 years.  Despite each of us having been responsible for adhering to these rules since the end of 2018, many California lawyers and law firms still do not know, or do not fully appreciate, the significance of the modifications.  Therefore, as we enter into this new decade and the second full year of these rules being in effect, I invite you and your firm to join my 12-step program to a healthier law practice in 2020 and the years to come.

Each month I feature an article on the key ethics rule changes aimed at guiding you and your firm to a healthier law practice by better managing your risks of liability.  You can access each article directly on this blog page or you can subscribe to this blog to ensure that you don’t miss any of the 12-steps.  The steps do not have to be reviewed in order, but you are encouraged to read each step to optimize the value of this program. To date, the following steps have been published:

• Step 1 – Take Responsibility;
• Step 2 – Treat Others The Way You Want To Be Treated;
• Step 3 – Avoid Conflict;
• Step 4 – Money Does Not Buy Happiness;
• Step 5 – Sharing is Caring;
• Step 6 – Advise on the Law;
• Step 7 – The Practice of Law is Not a Dating Service;
• Step 8 – Communication is Key;
• Step 9 – Location Matters;
• Step 10 – Three’s A Crowd

Please note that the articles on this blog are not legal advice and do not take into account specific facts or circumstances for which a tailored analysis and risk management plan is recommended.

STEP 11 – ACTIONS SPEAK LOUDER THAN WORDS

“More civility and greater professionalism can only enhance the pleasure lawyers find in practice, increase the effectiveness of our system of justice, and improve the public’s perception of lawyers.”
—Justice Sandra Day O’Connor

We are all familiar with the old adage, “actions speak louder than words.”  In a time when much of the nation correlates lawyer conduct with the uncivil actions of certain infamous California lawyers, this maxim hangs over the legal profession making two things very clear: (1) the actions of these lawyers have spoken much louder than the words they’ve used to try to justify their bad behavior; and (2) incivility continues to plague the legal profession despite some efforts to curtail it.  This truism does not just apply to the actions of individual lawyers, but it also pertains to the legal profession in California.  As Judge Bedsworth declared in 2011 in the case Kim v. Westmoore Partners, Inc. (2011) 201 Cal.App.4th 267, 293, “It’s time to stop talking about the problem and act on it. For decades, our profession has given lip service to civility. All we have gotten from it is tired lips. We have reluctantly concluded lips cannot do the job; teeth are required.”

Civil action

A lawyer’s conduct is required to adhere to particular standards under the CRPC and the State Bar Act (Business & Professions (B&P) Code section 6000 et seq.).  Failure to act in compliance with an obligation or prohibition imposed by these ethical criteria is a basis for discipline. Rule 1.0, Comment [1].  The stated purpose of the CRPC is “to protect the public, the courts, and the legal profession; protect the integrity of the legal system; and promote the administration of justice and confidence in the legal profession.” Rule 1.0(a). Along those lines it is understood that “[t]he duty of a lawyer, both to his client and to the legal system, is to represent his client zealously within the bounds of the law.” CA Bar Formal Opinion No. 2015-194 at 2 (citing Hawk v. Super. Ct. (1974) 42 Cal. App. 3d 108, 126).  However, “[z]ealous advocacy does not equate with ‘attack dog’ or ‘scorched earth’; nor does it mean lack of civility. Zeal and vigor in the representation of clients are commendable. So are civility, courtesy, and cooperation. They are not mutually exclusive.”  In re Marriage of Davenport (2011) 194 Cal.App.4th 1507, 1537. Unfortunately, California’s laws do not set adequate boundaries. Without enforceable rules and laws, civility in California is merely aspirational.

ETHICAL RULES & STATUTES

At the moment, there is no California statute or rule of professional conduct focused directly on civility. California’s ethical standards primarily concern a lawyer’s conduct towards a client and do not directly address civility among the members of the legal profession. See Kirsch v. Duryea (1978) 21 Cal. 3d 303, 309.  Some argue this is because the ethics rules simply provide a baseline for lawyer behavior while civility reaches beyond these minimum standards. The more plausible reason that civility merely underlies some of California’s ethics rules is because prior enforcement of requirements directly addressing incivility have been challenged for uneven application and for chilling an attorney’s free speech rights under the Constitution.  See Ramirez v. State Bar (1980) 28 Cal.3d 402.  However, some rules do serve to promote civility in certain respects.

For example, Rule 3.1 requires that only meritorious claims and contentions be made; Rule 3.2 prohibits actions to delay litigation for no substantial purpose; and Rule 3.3 requires candor toward the tribunal, including the prohibitions against offering false evidence or facts.  Rule 8.4.1 prohibits incivility so far as it concerns discrimination, harassment and retaliation on the basis of a protected characteristic in representing a client or in relation to a law firm’s operations.  Comment [2] to Rule 8.4.1 makes clear that the conduct prohibited in Rule 8.4.1 subsection (a) “includes the conduct of a lawyer in a proceeding before a judicial officer.”  See also Cal. Code Jud. Ethics, canon 3B(6).

Rule 8.4, known as the catch-all misconduct rule, provides a general basis for discipline not otherwise covered by the other rules.  This rule is based on old rule 1-120 and Model Rule 8.4.   As to civility, Rule 8.4 prohibits lawyers from engaging in conduct “involving dishonesty, fraud, deceit, or reckless or intentional misrepresentation; or engaging in “conduct that is prejudicial to the administration of justice[.]”. Rule 8.4(c)-(d).  Violation of this rule can occur when providing legal services as well as when a lawyer acts in pro per or even when a lawyer is not practicing law or acting in a professional capacity.  Rule 8.4, Comment [1].  However, Comment [4] to the rule clarifies that the rule does not apply to conduct protected by the First Amendment to the United States Constitution or by Article 1, section 2 of the California Constitution.

Comment [4] to Rule 8.4 reflects the extreme caution taken by the Bar as a result of the 1996 case United States v. Wunsch (9th Cir. 1996) 84 F.3d 1110.  In the Wunsch case, the Ninth Circuit Court of Appeals considered sanctions issued against a California lawyer for interfering with the administration of justice and displaying an “offensive personality” by sending a sexist letter to an assistant US Attorney criticizing his disqualification.  The appellate court reversed the sanction holding that, although the attorney’s letter was “deplorable,” it did not interfere with the administration of justice because it was a “single incident involving an isolated expression of a privately communicated bias” that was outside the context of the case and had no adverse effect on the ongoing matter. Importantly, the court further held that B&P Code section 6068(f) was void for being unconstitutionally vague because it did not sufficiently identify the conduct that was prohibited.  Wunsch at 1117-1118.   At the time, subsection (f) stated: “It is the duty of an attorney. . .[t]o abstain from all offensive personality, and to advance no fact prejudicial to the honor or reputation of a party or witness, unless required by the justice of the cause with which he is charged.”  The argument that the term “offensive personality” referred specifically to conduct mandated by the ethical rules was unsuccessful.  The court held that, “offensive personality could refer to any number of behaviors that many attorneys regularly engage in during the course of their zealous representation of their clients’ interests, it would be impossible to know when such behavior would be offensive enough to invoke the statute.” Id. at 1119.  The court ultimately held that the application of subsection (f) was likely to have a chilling effect on the exercise of First Amendment freedoms.  Id. at 1119-1120; U.S.C.A. Const. Amend. 1.

As a result of the Wunsch ruling, the State Bar of California’s Office of Chief Trial Counsel (OCTC) moved to dismiss disciplinary charges issued under B&P Code section 6068(f) in virtually all of its pending cases at that time. See Matter of Anderson 1997 WL 701350 at 11.  Subsection (f) was then amended to omit the prohibition of offensive personality.

Today, certain sections of the State Bar Act can help to regulate civility with caution, such as particular subsections of Section 6068.  Section 6068(b) requires an attorney “to maintain the respect due to the courts of justice and judicial officers.”  Lawyers, including opposing counsel, are “judicial officers.”  Section 6068(d) requires an attorney to employ “means only as are consistent with truth, and never to seek to mislead the judge or any judicial officer by an artifice or false statement of fact or law.”  Revised section 6068(f) now mandates that an attorney must “advance no fact prejudicial to the honor or reputation of a party or witness, unless required by the justice of the cause with which he or she is charged.”

Requirements for civil behavior can also be found in other California statutes.  California Code of Civil Procedure section 1209(a) provides several examples of “contempts of the authority of the court,” including, (1) “[d]isorderly, contemptuous, or insolent behavior toward the judge while holding the court, tending to interrupt the due course of a trial or other judicial proceeding”; (2) “[a] breach of the peace, boisterous conduct, or violent disturbance, tending to interrupt the due course of a trial or other judicial proceeding”; or (9) “[a]ny other unlawful interference with the process or proceedings of a court.” Chapter 7 of the California Penal Code entitled “Other Offenses Against Public Justice” includes similar prohibitions, specifically including Section 166, which states, “a person guilty of any of the following contempts of court is guilty of a misdemeanor: (1) Disorderly, contemptuous, or insolent behavior committed during the sitting of a court of justice, in the immediate view and presence of the court, and directly tending to interrupt its proceedings or to impair the respect due to its authority.”

Some states, such as Delaware, Michigan, Kansas and South Carolina, have customized language in their rules of professional conduct that more expressly address professionalism and civility. However, no civility rules or direct references were added to the CRPC when it was revised in 2018.  For instance, a separate diligence rule, Rule 1.3, was added in 2018. However, California decided not to adopt the ABA’s Model Rule 1.3 and opted out of including Comment 1 to this Model Rule, stating in relevant part: “A lawyer must also act with commitment and dedication to the interests of the client and with zeal in advocacy upon the client’s behalf. … The lawyer’s duty to act with reasonable diligence does not require the use of offensive tactics or preclude the treating of all persons involved in the legal process with courtesy and respect.”

Despite some taking the position that the State Bar should be permitted to regulate all lawyer conduct and speech because the practice of law is privilege, not a right, the collective outlook in California since Wunsch has been that statutes or rules directly addressing a lawyer’s civility are vulnerable to invalidation under the Constitution and, therefore, unenforceable in isolation for purposes of imposing discipline. Thus, in the absence of regulatory authority, California has had to look at other avenues to improve civility.

CIVILITY GUIDELINES

In 2009, the “California Attorney Guidelines of Civility and Professionalism” (“Guidelines”) were published to exceed the minimum requirements of the CRPC by not only covering a lawyer’s professional dealings with clients, but also with other counsel, third parties, the court, and the public.  The Guidelines contain twenty-one sections of recommended best practices meant to “foster a level of professionalism in client relations and responsibilities to the profession, public and administration of justice, in addition to civility issues and responsibilities in attorney-attorney relationships.” However, as the introduction to the Guidelines makes clear, in contrast to certain states, these Guidelines are not mandatory rules of professional conduct, rules of practice or standards of care, and, therefore, cannot be used as an independent basis for disciplinary charges or claims of professional negligence against attorneys.  In other words, the Guidelines are merely aspirational.

At or about the same time the Guidelines were published, a Civility Toolbox was created to facilitate the adoption and use of the Guidelines by local county bar associations and courts.  The toolbox contains the Guidelines as well as a voluntary pledge.  The Guidelines have been adopted by many local California bar associations and courts, and courts have pointed to these Guidelines when necessary.  See Ahanchian v. Xenon Pictures, Inc., 624 F.3d 1253, 1263 (9th Cir. 2010).  Citing the Guidelines, the Ninth Circuit court held that unreasonably refusing to agree to an opposing party’s request for a brief extension of a filing deadline necessitated by a holiday was uncivil, stating: “Such uncompromising behavior is not only inconsistent with general principles of professional conduct, but also undermines the truth-seeking function of our adversarial system.”  Ahanchian at 1263.  “Our adversarial system relies on attorneys to treat each other with a high degree of civility and respect.”  Id.  The Guidelines remain in place today.

ATTORNEY OATH

Every person who is permitted to serve as a lawyer in California must take an oath before being admitted.  The statutory basis for the oath is prescribed in B&P Code section 6067, which states: “Every 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.”

On May 27, 2014, a civility component was added to the oath through the California Rules of Court, Rule 9.4 (now Rule 9.7). Rather than amending the statute itself, it was enhanced by court rule through the Supreme Court’s plenary authority over the practice of law after it was decided that no legislative action was necessary if the promise of civility was aspirational rather than mandatory.  The intent of keeping it aspirational was to avoid problems that could arise if there were disciplinary consequences to violating the supplemental oath of civility, namely constitutional challenges. See Cal-ABOTA News Release by Dennis LaRochelle entitled, “How CAL-ABOTA Changed the Attorney Oath.”

With the adoption of this addition, the entire oath taken by each California lawyer states: “I solemnly swear (or affirm) that I will support the Constitution of the United States and the Constitution of the State of California, and that I will faithfully discharge the duties of an attorney and counselor at law to the best of my knowledge and ability. As an officer of the court, I will strive to conduct myself at all times with dignity, courtesy, and integrity.”

A violation of the oath prescribed by B&P Code section 6067 can technically be an independent basis for attorney discipline. On the other hand, it is unlikely that a violation of the civility portion of the oath alone could invoke discipline since it is a merely court rule. Regardless, in an effort to avoid constitutional challenges, a violation of the statutory oath is typically linked with other infractions, such as violations of B&P Code section 6068 (Duties of Attorney). See Samuelsen v. State Bar (1979) 23 Cal.3d 558.

The only California attorneys who have pledged an oath of civility are those who have been sworn in after June 2014. Unlike South Carolina, California has not required every previously licensed California lawyer to re-take the civility oath.  Notably, South Carolina’s civility oath has withstood challenges based on the First Amendment.  See In re Anonymous Member of the S.C. Bar, 709 S.E.2d 633, 638 (S.C. 2011).

JUDICIAL SANCTIONS

The inability of the State Bar to tackle incivility through attorney discipline has left judicial sanctions as the only means to directly regulate uncivil behavior, at least when the behavior happens in an action before the court. California courts have inherent power to control proceedings before the court and to punish and redress litigation misconduct, including the power to preclude evidence and dismiss actions. Examples of court sanctions issued as a result of lawyer incivility are, unfortunately, easy to come by with the most egregious behavior being the subject of national news.

In 2015, a court issued terminating sanctions against a party whose lawyer threatened opposing counsel at a deposition with pepper spray and a Taser, and then proceeded to insult the judge at the ensuing hearing.  Crawford v. JPMorgan Chase Bank, N.A., 2015 WL 8355515 (Dec. 9, 2015).  In upholding the terminating sanctions order, the court of appeal stated: “Far from the trial court abusing its discretion, it would have been an abuse of discretion not to impose a terminating sanction.” Id. at 4.

In 2016, Santa Barbara lawyer Peter Bertling was sanctioned for telling a female attorney it wasn’t “becoming of a woman” to raise her voice at him during a deposition.  His conditional apology didn’t satisfy U.S. Magistrate Judge Paul Grewal of the Northern District of California, who ordered sanctions and required Bertling to make a $250 donation to the Women Lawyers of Los Angeles Foundation, an organization dedicated to promoting the full participation of women in the legal profession. Bertling is still an active California lawyer with no record of discipline published by the State Bar.

California lawyer Michael Avenatti was a fixture in the news throughout the Trump presidency.  He was ultimately convicted of extortion for attempting to “shake-down” Nike.  The New York jury was not persuaded by Avenatti’s argument that he was simply doing what tough, aggressive lawyers do.  According to the California State Bar’s website, Avenatti is no longer permitted to practice law in California.

One of the most notable matters of the past year involved California lawyer, Christopher G. Hook, whose actions made national news after he sent numerous insulting, threatening and expletive-laden emails to opposing counsel at Sheppard Mullin.  See Baker et al. v. Allstate Ins. Co. et al., No. 2:19-cv-08024 (C.D. Cal. filed Aug. 13, 2019).  Sheppard Mullin filed a motion for sanctions, which sought relief not only against plaintiffs’ counsel, but also requested a restraining order, disqualification of Hook, and dismissal of the entire action.  Although a dismissal of the action would be rare, particularly in this case where Hook’s clients were unaware of his bad behavior, it is an appropriate remedy for abusive litigation practices.  See Halsco Eng’g Co. v. Castle, 843 F.2d 376, 380 (9th Cir. 1988).  The plaintiffs ultimately avoided dismissal by retaining new counsel as soon as they learned of Hook’s misconduct.

Hook defended his actions as mere zealous representation of his clients in the home damage insurance dispute.  He further argued that his actions were protected by the First Amendment and were absolutely privileged as litigation-related communications. At the hearing, Judge Otis D. Wright II of the Central District Court of Appeals for the 9^th Circuit implored Hook to resign from the profession stating, “this profession doesn’t need you.” See December 19, 2019 Above the Law article re same.  Hook refused.  Hook was ordered to pay $17,808 in sanctions, holding that Hook “acted in bad faith by sending numerous profanity-laced emails, using discriminatory epithets, and repeatedly threatening physical violence against Allstate’s witnesses, attorneys, and their families purportedly as negotiation tactics.” Hook stated that he plans to appeal the order.

B&P Code section 6086.7 requires a lawyer to notify the State Bar of the imposition of sanctions against the lawyer (except discovery sanctions or sanctions of less than $1,000).  B&P Code § 6086.7(a)(3). It is not clear if Hook reported this sanction to the State Bar as required or if the Bar is pursuing disciplinary action against Hook.  Hook remains listed as an active California attorney on the State Bar’s website with no published record of any disciplinary action.

Sadly, uncivil behavior is not limited to litigation, and discipline and court sanctions are not the only risks. In fact, other expensive and debilitating consequences could be more of a guarantee, such as increased costs to the client; prejudice or injury to the client’s case; waste or depletion of judicial resources; reputational harm; and malpractice liability.  Further, we cannot ignore the unneeded stress that incivility creates for everyone involved.  Stress is especially high during this Covid-19 pandemic because each member of the legal profession has been forced to deal with unexpected challenges.  No one needs the added stress of incivility.  Bar associations around the state have issued statements imploring lawyers to extend civility during this time.  Los Angeles Superior Court Presiding Judge Kevin Brazile said it best: “In light of the COVID-19 public health crisis we are facing today, civility is more important now than ever before. We are living in uncertain times and making our way through uncharted waters, which causes stress, anxiety, and challenges. These emotions can easily carry over into our everyday lives and in our work as lawyers and judges, which makes it essential to observe and promote civility. There will be no handshakes and wearing masks will hide the smiles—so for the near future, only our words and behavior towards one another will communicate that while we work vigorously and argue forcefully, we do so respectfully, civilly. We must remember that we are all in this together, and together, we will get through it.”

MOVING FORWARD

In a continued effort to make civility a priority in California, a Civility Task Force (Task Force) has been created under the leadership of Justice Brian Curry and CA Bar Board of Trustees member, Brandon Stallings, in association with the California Lawyers Association.  The task force is made up of seven judges, current county bar leaders, ABOTA local and national leadership members, CLA leadership, government attorneys, ethics experts and CA Bar committee members.  The Task Force is presently analyzing ways to improve civility in California through avenues that could include, but are not limited to, a mandatory CLE requirement, commanding all California lawyers to take the civility oath, and/or proposing a civility rule of professional conduct.  The Task Force will further work to promote the methods it determines could be most useful.  I am honored to have been selected as a member of the Task Force.

Please contact author, Kendra Basner, if you have any questions about this article or if you would like guidance as to the application of or compliance with these rules.