The limits of civility
By Diane Karpman
The lawyers in the Michael
Jackson wrongful death case apparently demonstrated profound animosities during
the trial. There was lots of eye-rolling, snipping, shouting, gesturing with
the middle finger and bumping each other in hallways. On one occasion, the court
clerks had to tell them to calm down in the hallway. Several media outlets,
including the Los Angeles Times, wrote about the lawyers’ contentious relationship.
Civility, or the absence
thereof, may appear to be the newest bright shiny issue, but it’s as authentically
American as George Washington, who wrote a book on the subject at the age of
Rules of Civility and Decent Behavior” is
filled with relevant issues regarding landed gentry and decorum. It even has
tips on eating and drinking. The early history of the American legal profession
was a battle between the aristocratic and the democratic for domination of the
professional culture. Professionalism as Class Ideology, Civility Codes and Bar
Hierarchy, Mashburn, 28 Val. U. L. Rev 657 (1994).
Civility has a highly
questionable background among the elite and dominant lawyers who serve the
wealthy classes, corporations and carriers, versus lawyers who represent the
poor, the underprivileged and minorities. In referring to the now-voided
offensive personality statute:
“Those at the top have no
need to be offensive. Those at the bottom – the poor, the workers, women,
prisoners, criminals, children, and sometimes their lawyers (when they have
any) sometimes speak in less reassuring tones and terms.” Ramirez v. State Bar (1980)
28 Cal. 3d 402, 426.
At the State Bar Annual
Meeting last month, the Board of Trustees voted to enhance our civility
obligations by changing our oath to include the words dignity, courtesy and
integrity. Of course the Board of Trustee’s cannot merely snap their fingers
and change a statute, but the Supreme Court can enhance them via Rules of
Court. (B&P § 6067)
Importantly, in California,
the oath supplement will be aspirational and not result in discipline. The
current civility dialogue is strongly supported by the American Board of Trial
Advocates, both locally and nationally.
Other states impose discipline
for violations of professionalism or civility codes. Often, when accused of
uncivil conduct, the accused lawyer will explain that they were zealously
representing their clients’ interests. Actually, the “zealousness” defense became
so prevalent that Arizona eliminated the obligation for attorneys to be
zealous. “Indiana, Louisiana, Montana, Nevada, New Jersey, Oregon and
Washington have likewise omitted all references to zealousness in their rules.
. . .” Webster, “Enforcing
Civility in an Uncivilized World,” page 2.
That is an interesting solution. If you don’t like a defense, just eliminate it
from the professional lexicon.
Maybe lawyers representing
the poor and minorities need to be zealous and sometimes shout. It’s important
to acknowledge that a highly sanitized discourse is problematic, especially in
a society that values free speech. Civility codes are a way to guarantee
predictability, particularly when involved with an outsider. “Have a nice day,
you $#!%@&#” may be constitutionally protected free speech.
Although the absence of
civility has been the tall-building lawyers’ favorite scapegoat for decades,
certain factors exacerbate the problem. There is far more civility in small
practice areas, like criminal law, because the lawyers will encounter each
other again and again. Whereas in the anonymous area of civil litigation, there
are more reports of negativity, ad hominem comments and fights at depositions.
California has an excellent civility
code. And importantly, if you need a continuance, this is where to get your
argument. “Consistent with existing law and court orders, an attorney should
agree to reasonable requests for extensions of time that are not adverse to a
client’s interests. (Cal. Attorney Guidelines of Civility &
Professionalism, § 5). For an amazing
case about a refusal to grant a reasonable continuance, consider Ahanchian
v. Xenon Pictures, Inc. 624 F.3d 1253 (9th Cir. 2010.)
Legal ethics expert Diane Karpman can be
contacted at 310-887-3900 or firstname.lastname@example.org.