Civility Guidelines in a Nutshell
LACBA Update, April 2009
By Judge Michael D. Marcus (ret.), mediator and arbitrator, ADR Services, Inc. Marcus is a member of the State Bar of California Board of Governors, and a former chair and current member of LACBA’s Professional Responsibility and Ethics Committee. The opinions expressed are his own.
Uncivil behavior, sometimes boorish, sometimes rude—but always over-the-top, unnecessary, and often prejudicial—leads to war stories, anger, and frustration among the attorneys on the receiving end. There are probably many reasons why lawyers engage in such behavior, but discovering its cause is not the issue; more important is that there are existing standards for governing attorney conduct during litigation, including trial.
Attorneys must treat each other with respect. All lawyers have an obligation to treat one another with respect: “To begin with, it is widely held that ‘An attorney has an obligation not only to protect his client's interests but also to respect the legitimate interests of fellow members of the bar, the judiciary, and the administration of justice.’ (Citations omitted; emphasis in the original.)…(E)ven if a legal step taken or legal procedure pursued has justification in law, the timing thereof may be oppressive and may constitute harassment if it unjustifiably neglects or ignores the legitimate interest of a fellow attorney.” (Tenderloin Housing Clinic, Inc. v. Sparks, 8 Cal. App. 4th 299, 306 (1992).)
Litigation should not be conducted to harass. Rule of Professional Conduct 3-200(A) states that an attorney shall not “assert a position in litigation...without probable cause and for the purpose of harassing or maliciously injuring any person.” Business and Professions Code Section 6068(c) provides that attorneys shall only “counsel or maintain those actions, proceedings, or defenses (that) appear to him or her legal or just, except the defense of a person charged with a public offense.” Section 6068(g) states that attorneys shall “[n]ot...encourage either the commencement or the continuance of an action or proceeding from any corrupt motive of passion or interest.” (See Sorenson v. State Bar, 52 Cal. 3d 1036 (1991) where suing a reporting service for fraud over a disputed $94.05 bill constituted violations of Sections 6068(c) and (g).)
Attorneys should not engage in frivolous and oppressive discovery. See Tenderloin Housing Clinic, Inc. v. Sparks, supra, at 302-06 where an attorney, while opposing counsel was on vacation, set three discovery motions for hearing, served trial subpoenas on that same attorney’s clients in an unrelated third-party action, set three depositions, and refused to continue the depositions, all of which required opposing counsel to cut short her vacation and return to protect her clients’ interests. This conduct was in bad faith and harassing, even if procedurally appropriate, because “it unjustifiably neglect(ed) or ignore(d) the legitimate interest of a fellow attorney.” (Id. at 306.)
Attorneys should honor agreements between themselves. Understandings or agreements that attorneys enter into, such as the calendaring of depositions, announced vacations, and religious observances, should be honored because, otherwise, the practice of law becomes one long unpleasant skirmish. (See Bryant v. State Bar, 21 Cal. 2d 285 (1942); Grove v. State Bar, 63 Cal. 2d 312 (1965); and Tenderloin Housing Clinic, Inc. v. Sparks, supra.) In Bryant, the attorney was disciplined for violating his agreement not to commence any action on a note and chattel mortgage until opposing counsel had returned from out-of-town. (Id. at 293-94.) Note, however, that no existing ethical rule prohibits the breach of such a promise. The attorney in Grove was disciplined for failing to advise the court that opposing counsel had asked for a continuance of a calendared motion because he could not get a plane in time for the hearing. As a result, the judge treated the cause as a default matter. (In this instance, unlike in Bryant, the conduct was disciplinable because it involved a misrepresentation to the court.)
Attorneys should not make misleading statements to opposing counsel. The failure to be truthful to opposing counsel can result in a violation of Business and Professions Code Section 6068(d), which requires attorneys to employ only such means as are consistent with the truth when representing their clients. (See In the Matter of Katz, 3 Cal. State Bar Ct. Rptr. 430, 435 (Review Dept. 1995) where attorney violated Section 6068(d) by endorsing his client’s false financial statements and representing one of the client’s businesses as successful to an eventual buyer and the buyer’s attorney.)
Attorneys should not incite or intimidate opposing counsel. Attempts to harass, intimidate, or annoy the opposition by physical conduct or the making of faces is improper. The prosecutor in People v. Hill, 17 Cal. 4th 800, 834 (1998) was criticized for staring at defense counsel and making faces at him while he was cross-examining witnesses. In People v. Kelley, 75 Cal. App. 3d 672 (1977), the same prosecutor as in People v. Hill told one of the defense attorneys that if he interrupted her again, “I'm going to kick you in the ankle.” On another occasion, after the defendants made a mistrial motion, she said, “If I had been a male lawyer, someone would have hit each one of you...right square in the face.” This prosecutor also engaged in a shoving match with a defense attorney while the latter was addressing the court. Not surprisingly, this conduct was unprofessional, especially since it had been committed by a prosecutor. (Id. at 688.)
The plaintiff’s lawyer in Love v. Wolf, 226 Cal. App. 2d 378 (1964) was just as combative. When defense counsel objected to an obviously improper reference to the defendant’s “astronomical profits,” he replied: “Can I make a statement or two without being interrupted, or do I have to floor you, Mr. Dyer?” On another occasion, opposing counsel was invited to “step outside and do something about it.” (Id. at 391-92.)
Attorneys should not denigrate one another. The disparagement or denigration of opposing counsel is improper. In Love v. Wolf, supra, which reversed a judgment for the plaintiff because of his counsel’s conduct, that attorney referred to the defendant pharmaceutical company’s lawyer as “an idiot” (several times), a “smart guy,” and a “laughing hyena.” He characterized the defendant's objections as “asinine” and “hogwash.”
“A prosecutor commits misconduct if he or she attacks the integrity of defense counsel, or casts aspersions on defense counsel. (Citations omitted.) ‘An attack on the defendant's attorney can be seriously prejudicial as an attack on the defendant himself, and, in view of the accepted doctrines of legal ethics and decorum [citation omitted], it is never excusable.’ (Citation omitted.)” (People v. Hill, supra, at 832.) Note, however, that a prosecutor may argue, when supported by the evidence and reasonable inferences, that testimony and a defense have been fabricated. Such characterizations, without more, are not an attempt to impugn the honesty and integrity of counsel. (People v. Cummings, 4 Cal. 4th 1233, 1303, n. 49 (1993).)
How attorneys should respond to misconduct. Since two wrongs do not make a right (Green v. GTE California, Inc., 29 Cal. App. 4th 407, 410 (1994); People v. Bain, 5 Cal. 3d 839, 849 (1971)), “[a] prosecutor's misconduct cannot be justified on the ground that defense counsel ‘started it’ with similar improprieties....[T]he proper way...to correct misconduct...is to object and have the trial judge reprimand the misbehavior and admonish the jury to disregard such remarks.” (Id.)