In the middle of several heavily contested political campaigns, it is easy to find barbs directed from one political candidate toward another. To some this is off-putting; others may even condemn the practice as being deplorable. Yet, it is not uncommon to see similar conduct among members of the bar generally and litigators in particular. Indeed, it might be unusual to sit through a single day's law-and-motion calendar without seeing one lawyer accuse another of some misconduct or character flaw. This could take the form of attributing unresponsiveness, unreasonableness, or some other uncouth quality to an adversary. Often that may be in response to some form of courtesy withheld, perhaps in regard to a request for a short extension of time. But regardless of the reason for resorting to such tactics, lawyers should reconsider such an approach to litigation. Ethical reasons could require some restraint.
Originally, the State Bar Act required attorneys to act civilly. When adopted in 1939, Business and Professions Code Section 6068(f) required California lawyers to "abstain from all offensive personality." And that statute was derived from the old 1872 field code as Code of Civil Procedure Section 282. This civility requirement remained a standard until 1996 when, in United States v. Wunsch, the 9th U.S. Circuit Court of Appeals determined that the phrase was unconstitutionally vague. As a result, in 2001, when the Legislature amended Section 6068, it deleted the requirement for attorneys to "abstain from all offensive personality."
Despite this statutory change, lawyers have plenty of guidance to assist them - and in much less vague terms than the former language of Section 6068(f) - in determining how to act professionally. In 2007, the Board of Governors for the State Bar of California appointed a task force to create the California Attorney Guidelines of Civility and Professionalism. These guidelines are divided into 21 sections with over 100 specific examples of what our profession expects of its members. Many local bar associations have adopted additional civility guidelines. Unlike the State Bar Act or the Rules of Professional Conduct, these do not provide a mandatory standard for lawyers to follow. So, in theory, they are aspirational. In reality, they are much more.
Clients primarily come to lawyers for one reason: They have problems they cannot solve themselves. Attorneys, in turn, are tasked with resolving those problems. Generally, it is in the clients' best interest that those problems are resolved as efficiently and expediently as possible. And that is where civility plays a part.
German playwright and novelist Gustav Freytag opined that most dramas could be broken down into five parts. These included the exposition, a rising action, the climax, the falling action, and the denouement. He opined that this dramatic arc took the story from an introduction of background information, to a series of events building toward the point of greatest interest which would determine the protagonist's fate, followed by an unraveling of the conflict toward eventual resolution, whether favorable or tragic.
Litigation matters typically follow a similar path. The parties have some type of relationship or interaction with one another. Based on that, a dispute arises. In many cases, the parties try to, but are unable to find an adequate solution to the problem. So, they retain counsel and file suit. Assuming that the lawyers address the situation with professionalism and competence, the unraveling process begins as discovery and legal analysis occurs until the matter is resolved either through negotiations or a courthouse determination.
The inherent problem with incivility is that it runs a risk of delaying the falling action. That is because boorish and uncooperative tactics are much more likely to escalate an already sensitive situation than they are to move it toward resolution. In such cases, the dramatic arc may reach a much higher climax or have a series of rises as tempers and sharp tactics surface. In such cases, clients may suffer because both the length and cost of the litigation are unnecessarily increased.
Sometimes, lawyers may attempt to justify such conduct in the name of zealous advocacy. But such an argument is usually unavailing. Whereas lawyers are advocates, they cannot be true "zealots." Keep in mind that a zealot is a person who is fanatical and uncompromising in pursuit of that goal. Whereas the duty of loyalty requires attorneys to place their clients' interests and goals above their own, there are limits as to what lawyers may due in pursuit of those goals. For example, lawyers' ethical duties require that they exercise candor to the courts and that they pursue only those actions or defenses that have probable cause.
Indeed, lawyers are not required to be "zealots." The Rules of Professional Conduct do not contain any express duty to zealously advocate. Even the former Model Rule addressing zealous advocacy was replaced with Rule 1.3, which instead requires representation of a client with "reasonable diligence."
The duty of loyalty requires that attorneys be strong advocates for their clients. But distinguishing that from being a zealous advocate - one who acts fanatically and without compromise - is not merely an exercise in semantics. Clients have an interest in their lawyers recognizing this so that they can conclude, rather than continue disputes. As an acknowledgement of this, in 2014, the California Rules of Court, Rule 9.4 was adopted to revise the oath for new attorneys. It added, "As an officer of the court, I will strive to conduct myself at all times with dignity, courtesy, and integrity." Regardless of their vintage, all California attorneys serve the clients well by keeping this in mind.