Practical considerations for promoting a culture of civility

From a practical perspective, what are the implications of the proposed amendments to the California Rules of Professional Conduct regarding lawyer incivility now pending for consideration by the California Supreme Court? As part of a broader initiative, the State Bar of California Board of Trustees, in July 2023, approved changes to California’s rules proposed by the State Bar’s Civility Task Force, aimed at promoting civility and making repeated incivility a form of professional misconduct. The proposed rules are premised on the concept that advocacy for a client does not require incivility and that the First Amendment allows for regulation of civility. While California already has in place some regulation to promote civility, the Task Force addressing this issue concluded that additional regulation is needed and the Board agreed.

What is incivility? The proposal under consideration would define it as conduct that is “discourteous, abusive, harassing, or other significantly unprofessional conduct.” That would sweep in conduct that is abusive, defined as extremely offensive and insulting; discourteous, defined as showing rudeness and a lack of consideration of other people; and harassing, defined as an action subjecting someone to aggressive pressure or intimidation. In addition, other significantly unprofessional conduct would potentially constitute misconduct under the proposed provisions.

A proposed additional comment would provide that a lawyer could violate the rule “by repeated incivility while engaged in the practice of law or related professional activities.” The Task Force’s report indicates the intent of this language is not to trigger professional discipline for an isolated instance of incivility. What are “related professional activities?” This might include, for example, lawyers’ participating in bar associations, as mentioned in the Task Force’s report. The Task Force also recommended a diversion program for lawyers charged for the first time with “repeated incivility,” with lawyers directed to the diversion program paying for the costs, and judges encouraged to direct lawyers for diversion.

Management’s role

Law firm management plays an important role in promoting civility in the profession. New lawyers may find their role models on television or cinema, which do not conform to the real life practice of law. To promote civility, managers and team leaders can visibly walk the talk and set the tone for other lawyers within the firm, providing less experienced lawyers a model to follow by demonstrating through their own conduct what true civility looks like in the day-to-day practice of law. Management can establish policies and procedures that set forth a law firm’s official positions and practices, and can provide avenues for those within the firm to bring incivility to the attention of management. Management can also provide training to law firm personnel that promotes civility. Given the stress and friction that can arise in the practice of law, particularly in litigation, the importance of leadership cannot be understated.

Pursuant to Rule 5.1, managers shall make reasonable efforts to ensure that the firm has in place measures that provide reasonable assurance that all lawyers in the firm comply with the rules. Managers must intervene, take corrective steps, and undertake remedial action when they know of non-compliance, as appropriate to the seriousness of the conduct. Lawyers with supervisory authority over other lawyers have a similar obligation whether or not those other lawyers are members or employees of the same firm. Existing Rules of Professional Conduct already promote lawyer civility. Engaging in conduct that is prejudicial to the administration of justice constitutes professional misconduct under Rule 8.4(d). Whether in a law firm’s operations or in representing a client, unlawful harassment or discrimination potentially violates Rule 8.4.1. Lawyers are already obligated to “maintain the respect due to the courts of justice and judicial officers.” Cal. Bus. & Prof. Code § 6068(b). In the heat of advocacy, periodic training reminding lawyers of these obligations is imperative.

Practical risk management benefits

Promoting a culture of civility has important practical risk management benefits. What are the perhaps unintended consequences of lawyers who repeatedly practice in an aggressive, intimidating, insulting, rude manner? First, incivility can increase the risk of sanctions. Judges expect lawyers to address their disagreements in a professional manner. Incivility during litigation can support a later action for malicious prosecution by providing evidence of “malice” through a showing of a lawyer’s hostile conduct. Incivility can result in taking extreme positions which can increase the overall expense of legal representation significantly, and in turn can also lead to fee disputes in which fees expended due to a lawyer’s incivility may be characterized as unnecessary to the representation. Incivility may reflect poorly on the lawyer in downstream litigation concerning legal malpractice by making the defense of an offensive lawyer more challenging. Overall, incivility within the legal profession takes a mental health toll on the lawyers and others targeted.

You may think that regulation of civility is unnecessary. If so, a review of the Task Force report will be an eye-opening experience. California lawyers will likely soon follow the path of other states with additional regulation on lawyer civility.

By the Klinedinst PC Practical Ethics Team, with Carole J. Buckner as Lead Author

The Klinedinst PC Ethics and Risk Management Team writes a monthly Practical Ethics Column to assist California Practitioners understand cutting edge ethics issues, manage risk, and ensure compliance. More about the Team and the authors — Heather L. Rosing , Dave Majchrzak , Carole Buckner , Joanna Storey , and Ryan Little — can be found here: https://klinedinstlaw.com/practice/legal-ethics-law-firm-risk-management