Guidelines for lawyer civility move forward

“The justice system cannot function effectively when the professionals charged with administering it cannot even be polite to one another.” — Former Supreme Court Justice Sandra Day O’Connor

Taking O’Connor’s statement to heart, a State Bar task force has proposed guidelines to enhance civility and professionalism among California’s lawyers that touch on areas such as discovery, privacy, punctuality and service of papers. The recommendations are expected to be released for a 30-day public comment period this month and to be voted on by the board of governors in July.

“This is really an opportunity to put civility on the front burner in a lot of attorneys’ minds and to remind lawyers you can be civil and still be an effective advocate for your client,” said task force chair Marguerite Downing, a Los Angeles public defender and board vice president.

Development of a civility code is the brainchild of bar President Sheldon Sloan, who long ago noticed a paucity of common courtesy among attorneys. “The civility that used to exist has dissipated,” Sloan says. “A lot of lawyers don’t know how to behave.”

When he took office in October, he vowed to focus on developing a civility pledge with a goal of encouraging the state’s lawyers to sign on. 

Sloan said he finds particularly annoying tactics such as setting depositions on the Friday after Thanks-giving or during the Christmas holidays, needless subpoenas, re-fusals to continue a proceeding or setting two depositions at the same time.

“You don’t have to do that to be a successful lawyer,” Sloan says. “It doesn’t weaken you to be civil or accommodating. It’s just that some lawyers feel that’s what they have to do to get an edge.”

A 20-member task force, including four judges, used the Santa Clara County Bar Association’s existing civility code as a starting point, held two public hearings and received inquiries or comments from more than 200 lawyers, judges, professional groups and members of the public.

The end product is a 14-page document that addresses lawyers’ responsibilities to the public, profession, justice system and clients, communications, punctuality, privacy, conduct in court and ex parte communications with the court. Because of abuses of the discovery process, a section is devoted to recommendations about depositions, document demands and interrogatories. Additional sections focus specifically on family law, business transactions and criminal practice.

Although statutes and rules already govern most of the areas covered in the guidelines, State Bar attorney Mary Yen, who served staff to the task force, said the guidelines offer lawyers “a sense of best practices, of what better attorneys do practice efficiently, effectively and with civility under existing statutes and rules.”

The guidelines make no effort to limit the authority provided by statute, Yen said, “but the way in which attorneys conduct themselves within that authorization is the issue. Some of the ways attorneys meet the letter of the law have raised concern.”

Downing took pains to stress that the guidelines are “aspirational” and should not be interpreted as formal standards. “I think the concern is that since they’re coming from the State Bar, they’re going to be new rules we’re pushing down people’s throats, and that’s not the idea.”

At a Los Angeles hearing in March, two speakers warned that lawyers will think just that. The guidelines “will inevitably be considered standards that will lead to disciplinary sanctions,” said JoAnne Robbins, a former State Bar Court judge who now defends attorneys facing discipline. She suggested that instead of adopting standards, the bar should undertake educational efforts to let lawyers and law students know what is acceptable conduct.

The proposed guidelines were revised and now state specifically that they are “not mandatory rules of professional conduct, nor rules of practice, nor standards of care” and they are not to be used as the basis for disciplinary charges against attorneys.

If lawyers sign on to a civility code, they will agree to behave themselves in the discovery process, which Downing described as “one of the biggies. They tend to try to punish each other,” she said by asking for everything in a request for documents “when you really only want a little.” The guidelines suggest limiting demands for documents to what is “reasonably needed to prosecute or defend an action.”

In depositions, attorneys should avoid conduct “that would be inappropriate in the presence of a judicial officer.”

Service of papers also is an area that drew scrutiny because some lawyers serve papers late on a Friday, or the day before a holiday or at a time when opposing counsel is known to be out of town. “The timing and manner of service of papers,” the guidelines suggest, “should not be used to the disadvantage of the party receiving the papers.”