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From the President

Civility: The time has come for civility to be added to our attorney oath

By Patrick Kelly
President, State Bar of California

Patrick KellyGiven the pace of change and the demands of our practice, attorneys can sometimes forget the need to be civil to one another. Civility is not only important as a part of our reputation; it is part of our duty to our clients. Why do I say that? It's simple. Not being civil results in contentious situations that not only challenge our psyche, they burn up time and waste our clients’ assets – and our clients’ time as well. Therefore, I suggest that incivility is jeopardizing our professional responsibility to our clients.

Civility does not require that we communicate weakness or "roll over" to the whim of our opponent. You can stand your ground where necessary in a courteous and professional way. Indeed over the long haul the courts, our clients, other attorneys, other professionals and the community as a whole will respect us much more if civility is a key component of our professional activities. Moreover if we practice civility we are a much more worthy and serious opponent in any dispute. And as all of us who litigate know, civility is highly respected by judges and makes a lawyer a much more effective advocate.

Unfortunately, as a litigator, I have all too often witnessed attorneys who claim to be zealously representing their clients but who in fact cross the civility line. Such activities include needless and ineffective histrionics during depositions, refusal to grant the other side an extension of time for no good reason, confirming in writing positions that were never taken and even trying to bully the judge in his or her own courtroom. And the list goes on.

These actions do not foster a professional resolution of the issues. They only feed into clients’ fear or dislike of the other side. That adds to a descending spiral of distrust that impairs the resolution of disputes. As I noted at the outset, these time-wasting tactics increase litigation costs and prevent clients from moving on with their otherwise productive lives.

In recent years, there have been numerous efforts to encourage civility in California. To that end, various bars have proposed civility guidelines and some local courts have adopted them. In fact, under then-president Sheldon Sloan, a State Bar task force in 2007 created an online Civility Toolbox for use and adoption by local county bar associations and superior courts. The toolbox contains guidelines for civility and professionalism as well as a voluntary pledge. Still, the lack of decorum has persisted, and thus it’s critical to use more dramatic means to address this issue.

That’s why the State Bar is aggressively working to insert civility wording into the attorney oath in California and why I have such a strong personal commitment to this effort. Attorneys entering the profession should be on notice from the start that civility is a fundamental duty of all attorneys. I also applaud and endorse the national effort by the American Board of Trial Advocates (ABOTA) to modify attorney oaths across the nation to include language requiring civility. So far, about six other states have incorporated civility language into their oaths. Florida, South Carolina, Louisiana and Arkansas, for example have adopted the following: “To opposing parties and their counsel, I pledge fairness integrity, and civility, not only in court, but also in all written and oral communications.”

The oath that California attorneys currently take upon admission is set forth by statute. Business and Professions Code Section 6067 states that every person on his or her admission shall take an oath “to support the Constitution of the United States and the Constitution of the State of California, and faithfully to discharge the duties of any attorney at law to the best of his or her knowledge and ability.” This oath could be changed by statutory amendment or enhanced by court rule through the Supreme Court’s plenary authority over the practice of law.

As I noted, the State Bar, along with ABOTA, is aggressively pursuing an amendment to our oath that states a commitment to civility. I ask all members of the State Bar to support our efforts to make civility an integral part of our oath; but more importantly, to make civility an essential part of our professional activities and insist upon it with other attorneys with whom we interact.