Share this on Twitter Share this on Facebook Share this on Linked In Share this by Email
Ethics Byte

The limits of civility

By Diane Karpman

Diane KarpmanThe 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 14. “Washington’s 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