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
The Attorney Civility Task Force will seek authorization
May 11 from the Board Committee on Member Oversight to publish
the proposed California Attorney Guidelines of Civility and
Professionalism for a 30-day period. If approved, the comment
deadline will be June 12.
The proposed
guidelines are available at the State Bar's
Web site or may be obtained from Mary Yen, 415-538-2369 or
Teri Greenman, 415-538-2454.
Written comments should be sent to mary.yen@calbar.ca.gov or teri.greenman@calbar.ca.gov or mailed to them at 180 Howard
St., San Francisco, CA 94105
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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.”
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