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Miss Manners, Esquire

By Megan Kinneyn | Jul. 2, 2007

Law Office Management

Jul. 2, 2007

Miss Manners, Esquire

The Board of Governors weighs a new civility code intended to make counsel mind its manners. By Peter Blumberg

By Peter Blumberg
      Edited by Jeanette Borzo
      In his campaign for civility in the legal profession, State Bar President Sheldon Sloan likes to talk about the bad apples who ambush adversaries with surprise motions on the eve of a major holiday.
      Robert Sall knows what Sloan is talking about. The Laguna Beach litigator has twice been served with summary judgment motions at 5 p.m. on Thanksgiving eve. But Sall, who lectures on professional responsibility at Whittier Law School, parts ways with Sloan on how to prevent such bad manners.
      Sloan is promoting a civility code that addresses lawyers' responsibilities to the public, the profession, the justice system, and clients. The 14-page code, drafted by a task force of lawyers and judges, is scheduled for a vote by the bar's Board of Governors this month.
      Modeled partly on the Santa Clara County Bar Association guidelines, the State Bar's proposal is entirely voluntary. Lawyers would sign a pledge vowing to conduct themselves courteously and to refrain from cutthroat gamesmanship. But even with an explicit disclaimer that the civility pledge is not mandatory, Sall warns, that is exactly how it will be construed. Eventually, he predicts, lawyers will use the guidelines to seek sanctions and discipline against their adversaries.
      "To suggest that you can create a set of rules and then say they are not really a set of rules will create misunderstanding. Over time, the rules will have a greater impact than they were intended to have," he says, adding that better education is the best way to promote civility.
      At least one earlier effort to regulate rudeness in California failed to stand up to a First Amendment challenge from the ACLU. In 1993, a defense lawyer objecting to his disqualification in a Los Angeles criminal tax case wrote a note to a female federal prosecutor in large block letters: "MALE LAWYERS PLAY BY THE RULES, DISCOVER TRUTH AND RESTORE ORDER. FEMALE LAWYERS ARE OUTSIDE THE LAW, CLOUD TRUTH AND DESTROY ORDER."
      The trial judge later disciplined Frank Swan for violating a provision in the Business and Professions Code that required attorneys to "abstain from all offensive personality." But Swan fought back, and in 1996 the Ninth Circuit held that the statute was unconstitutionally vague. (United States v. Wunsch, 84 F. 3d 1110.)

Megan Kinneyn

Daily Journal Staff Writer

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