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Special MCLE Credit: Ethics<br> The Teeth Behind Civility
by Wendy L. Patrick
A combination of talent, respect, and deference tempers our adversarial legal system. Indeed, the hallmark of a successful lawyer is the ability to exude both credibility and authority through zealous advocacy combined with civility. These qualities do more than enhance an advocate's cause, whether in the courtroom or at the negotiating table. They also serve to improve the public perception of the legal profession.

Civility in the practice of law includes the art of gracious disagreement. Although at first blush this concept may sound lofty and vague, it invokes a number of specific ethical and legal rules that relate to an attorney's interaction with the court and opposing counsel.

The State Bar of California has actually published guidelines for attorney civility, which remind us that "[t]he dignity, decorum and courtesy that have traditionally characterized the courts and legal profession of civilized nations are not empty formalities. They are essential to an atmosphere that promotes justice and to an attorney's responsibility for the fair and impartial administration of justice." (See Cal. Attorney Guidelines of Civility & Professionalism § 1, part of the Civility Toolbox offered by the Sate Bar, online at ethics.calbar.ca.gov.)

Respectful Dealings
It bears emphasis that behaving appropriately is not merely the right thing to do: Violating the standards of decorum in or out of the courtroom can get a lawyer in trouble. And it's not just about money, for in addition to a hefty fine, stepping out of line can trigger professional discipline - and even land an advocate in jail.

The most common sanction used to punish uncivil and unethical in-court behavior is the power of contempt. The specific definitions of contempt and the use of the contempt power are rarely discussed in the literature and are often misunderstood. Although the rules vary somewhat from state to state, most judges would agree that the power of contempt is used only as a last resort, after a court has exhausted all other options. Nonetheless, the prudent lawyer should be aware of the various provisions available to the court should things get out of hand, and bear in mind the different types of actions that are sanctionable under different code sections.

In California, courtroom behavior is governed by a simple statute that gives the court power to "preserve and enforce order in its immediate presence" and to "provide for the orderly conduct of proceedings before it, or its officers." (Cal. Code Civ. Proc. § 128.)

A related statute states that contempt includes "[d]isorderly, contemptuous, or insolent behavior toward the judge." In addition, contempt covers a "breach of the peace, boisterous conduct, or violent disturbance." In both instances, the triggering conduct must "interrupt the due course of a trial or other judicial proceeding." (Cal. Code Civ. Proc. § 1209(a).)

When a contemptuous act occurs in the immediate view and presence of the court, or of the judge at chambers, "it may be punished summarily." If that is done, the sanctioning judge must issue an order "reciting the facts as occurring in such immediate view and presence, adjudging that the person proceeded against is thereby guilty of a contempt, and that he or she be punished." (Cal. Code Civ. Proc. § 1211.)

In addition, contempt of court may carry criminal liability. The Penal Code's language largely tracks that of the provisions discussed above. (Compare Cal. Penal Code § 166 with Cal. Code Civ. Proc. § 1209.)

But what exactly can a judge do? Under section 177.5 of the Code of Civil Procedure, a judge can impose monetary sanctions up to $1,500 for any violation of a lawful court order that is done "without good cause or substantial justification." However, that section applies to disorderly conduct in cases before a judge; violations of the rules of professional conduct generally are left to the State Bar Court to enforce. (Conservatorship of Becerra, 175 Cal. App. 4th 1474, 1483 (2009).)

Statutes and Rules
Lawyers are required by statute to practice with competence and show respect for the courts: The Business and Professions Code specifically proclaims that a lawyer must faithfully "discharge the duties of any attorney ... to the best of his knowledge and ability." (Cal. Bus. & Prof. Code § 6067.) The code further states that an attorney has a duty to "maintain the respect due to the courts of justice and judicial officers." (Cal. Bus. & Prof. Code § 6068(b).)

It is not at all surprising that courts have held that attorneys must respectfully follow court rulings, regardless of whether they believe the rulings are correct. (People v. Pigage, 112 Cal. App. 4th 1359 (2003).) Even if an attorney is incensed over an adverse ruling, he or she must not willfully disobey it, and must maintain an attitude of respect toward the court. (People v. Chong, 76 Cal. App. 4th 232 (1999).)

Because an attorney is an officer of the court, when he or she violates the foregoing obligations, a judge may protect the court's integrity and reprimand the attorney. And because trials are often fast-paced, a judge may even deliver this reprimand in front of the jury. (Chong, 76 Cal. App. 4th at 243-244.)

Opposing Counsel
Interestingly, the governing code sections do not mention any explicit duty to respect opposing counsel. But this is a place where a distinction can be made between ethics, professionalism, and civility. Indeed, if a lawyer is uncivil to his or her opponent and the interchange obstructs the progress of the case, it could arguably provide a basis for sanctions under section 1209(a)(2), which covers "boisterous conduct ... tending to interrupt" the proceedings.

Lest these statutory duties as an attorney be taken lightly, the code explains that a violation may constitute cause for suspension or disbarment. The code also states that "willful disobedience or violation of an order of the court ... constitute causes for disbarment or suspension." (See Cal. Bus. & Prof. Code §§ 6068, 6103.)

Model Rules
An attorney may also be subject to State Bar discipline for violating the Rules of Professional Conduct. (See Cal. Rules Prof. Conduct 1-100(A).) When the California rules are silent on a particular issue, one can refer to the American Bar Association's Model Rules for ethical guidance, even though those rules do not constitute binding authority in California. Case law holds that although an ABA formal ethics opinion "does not establish an obligatory standard of conduct imposed on California lawyers," the ABA Model Rules may be considered as a "collateral source" where there is no direct ethical authority in California. (State Compensation Insurance Fund v. WPS Inc. (State Fund), 70 Cal. App. 4th 644, 656 (1999).)

In many respects, the ABA Model Rules track the core concepts of California law. For example, Model Rule 3.5 states that a lawyer shall not engage in conduct intended to disrupt a tribunal. The comments to the rule provide that a lawyer's function is to provide "evidence and argument" so that a case may be legally decided. The comments go on to state that refraining from abusive or obstreperous conduct is a corollary of the advocate's right to speak on behalf of litigants. A lawyer may stand firm against abuse by a judge, "but should avoid reciprocation." What that means in plain English is, a lawyer shouldn't lose it just because the judge does. "An advocate can present the cause, protect the record for subsequent review and preserve professional integrity by patient firmness no less effectively than by belligerence or theatrics." (ABA Model Rule 2.5, Comment 4.)

The Model Rules recognize the competitive nature of the adversarial system, but they also note that fair competition is limited by prohibitions against certain unethical behavior, including "obstructive tactics in discovery procedure, and the like." (ABA Model Rule 3.4.) A related provision cautions that in "representing a client, a lawyer shall not use means that have no substantial purpose other than to embarrass, delay, or burden a third person, or use methods of obtaining evidence that violate the legal rights of such a person." (ABA Model Rule 4.4.)

And be advised: California's federal courts have stepped into the breach by publishing local rules (see Northern District L. R. 11-4) as well as civility guidelines (see the Central District's Civility and Professionalism Guidelines, available online at www.cacd.uscourts.gov.)

Civility in Criminal Cases
For advocates who practice criminal law, the American Bar Association has set forth specific ethics rules on an attorney's duty of professionalism. ABA Standards for Criminal Justice Courtroom Professionalism state that as officers of the court, criminal lawyers "should support the authority of the court and the dignity of the trial courtroom by strict adherence to codes of professionalism, and by manifesting a professional attitude toward the judge, opposing counsel, witnesses, defendants, jurors, and others in the courtroom." The standards further state that criminal attorneys "should cooperate with courts and the organized bar in developing codes of professionalism for each jurisdiction." (See ABA Standard 3-5.2 for prosecutors and Standard 4-7.1 for defense attorneys.)

The comments underlying these sections explain that lawyers are permitted to argue their respective positions, but in the face of an adverse ruling by the court they may not resist the ruling or insult the court. The remedy in such an instance is to preserve the issue for appeal. (See Sacher v. United States, 343 U.S. 1, 9 (1952).)

Helpful Cases
Several appellate rulings cover procedural issues that are not directly addressed in the California Rules of Professional Conduct. A recently published case suggests that in the absence of bad faith, undue delay, or prejudice, attorneys should not oppose continuance requests that are reasonable. (Ahanchian v. Xenon Pictures, Inc., 624 F.3d 1253 (9th Cir. 2010).) As another federal court noted: "We do not approve of the 'hardball' tactics unfortunately used by some law firms today. The extension of normal courtesies and exercise of civility expedite litigation and are of substantial benefit to the administration of justice." (Marcangelo v. Boardwalk Regency, 47 F.3d 88, 90 (3d Cir. 1995).)

As another court so aptly observed, "There is no better guide to professional courtesy than the [G]olden [R]ule: [Y]ou should treat opposing counsel the way you yourself would like to be treated." (Peterson v. BMI Refractories, 124 F.3d, 1386, 1396 (11th Cir. 1997).)

Despite these pronouncements, many lawyers continue to test the boundaries of civility. And their conduct, while unfortunate, does provide appellate guidance. Take the case of Debra Koven, a Manhattan Beach lawyer who, despite 15 years in the profession, crossed over the line in several allegation-filled documents she filed with the court. Koven filed petitions for rehearing regarding the trial court's decision in a legal and medical malpractice action in which she represented the plaintiff. (In re Koven, 134 Cal. App. 4th 262, 264 (2005).) In those petitions, she repeatedly impugned the integrity of division 6 of the Second District Court of Appeal and accused its members of "deliberate judicial dishonesty." Although Koven subsequently apologized, the court did not excuse the conduct because "her unsupported accusations of judicial misconduct are patently outrageous." In addition, Koven displayed a "pattern of abuse" by making similar accusations against her opposing counsel, their expert witnesses, and the trial judge. In light of her apology, the court imposed a fine instead of jail time; the matter was referred to the State Bar for investigation. (134 Cal. App. 4th at 264-265.)

The court relied on the definition of contempt as set forth in section 1211(a) of the Code of Civil Procedure. "[I]t is the settled law of this state that an attorney commits a direct contempt when he impugns the integrity of the court by statements made in open court either orally or in writing. ... Insolence to the judge in the form of insulting words or conduct in court has traditionally been recognized in the common law as constituting grounds for contempt." (134 Cal. App. 4th at 270-271.) (Koven was suspended for one year, stayed, placed on probation, and ordered to take the professional responsibility exam.) (In re Koven, No. 05-0-05175 (Cal. St. Bar Ct.) (2008).)

But what about the lawyer who holds it together in court, only to unload later in moving papers, or to colleagues out in the hallway? The Koven court explained that a "direct contempt" occurs when a lawyer attacks the court's integrity through statements made in a document that is filed with the court. Regarding the court's obligations to recognize contempt, the court quoted from venerable precedent when it noted that a judge "is well within his rights in protecting his own reputation from groundless attacks upon his judicial integrity, and it is his bounden duty to protect the integrity of his court. ... However willing he may be to forego the private injury, the obligation is upon him by his oath to maintain the respect due to the court over which he presides." (Koven, 134 Cal. App. 4th at 271.) Contempt arising from attacks on a court's integrity is punishable by five days in jail, a fine of up to $1,000, or both. (See Cal. Code of Civ. Proc. § 1218(a).)

Body Language
Another case that demonstrates the boundaries of a lawyer's courtroom conduct is the case of Adam Reposa, a Texas criminal defense attorney who was held in contempt by a female judge for making a gesture simulating masturbation toward a prosecutor. Reposa's 90-day jail sentence was upheld, because his obscene gesture was deemed to be "a purposeful act of disrespect and an affront to the dignity of the court. As such, it rises to the level of criminal contempt." (Ex Parte Reposa, 2009 WL 3478455 at *7 (Tex. Crim. App.).)

Though lawyers should vigorously represent their clients, they are not permitted to do so at the expense of disrespecting the court, and certainly they are behaving unprofessionally when they intentionally disrespect opposing counsel. Knowledge of the applicable ethical and legal rules governing the proper relationships between lawyers, judges, and legal adversaries will permit an intelligent lawyer to protect not only clients, but his or her own professional standing as well.

Wendy L. Patrick, a deputy district attorney in San Diego County, chairs the State Bar's Committee on Professional Responsibility and Conduct.

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