Mandating Civility: Beyond the Oath
There has been a noted decline in civility in our profession and society. Citizens struggle to have healthy discussions with those who do not agree with them. Civility is not about agreement, but how we conduct ourselves when we disagree.
To serve as an example for society, the legal profession must model that ‘best’ behavior if discourse is to improve. To that end, in 2014 the California Supreme Court at the recommendation of the State Bar of California Board of Trustees, took a step towards improving civility among California attorneys. It adopted Rule 9.7 of the California Rules of Court adding new language to the attorney oath of admission. The new rule required anyone admitted after 2014 to swear or affirm:
“As an Officer of the Court, I will strive to conduct myself at all times with dignity, courtesy and integrity.”
Did the enactment of this new rule and oath effectuate real change in how attorneys interacted with each other and the courts? In 2021, the California Lawyers Association (CLA) and the California Judges Association (CJA) believed incivility had actually increased in the ensuing years. They formed a joint taskforce to address the issue. In September 2021 they issued their initial report appropriately named “Beyond the Oath”: Recommendations for Improving Civility” and suggested the time had come for “remedial action.”
The Report outlined four key proposals:
1. MCLE Training on Civility – This proposal would require one hour of MCLE training devoted to civility focusing on the link between incivility and bias. The taskforce noted their goal was to educate attorneys about the “economic and human costs of incivility,” to provide them with “reasons and tools” to change their own behavior and to deal with the “stress and dissatisfaction” which uncivil behavior causes. The new one-hour requirement would not add to the number of MCLE hours under the current rules.
2. Judge’s Training – This proposal would require new training programs for judges designed to equip them with tools to have a greater impact on promoting civility among attorneys and to teach them to model the same behavior when interacting with attorneys and litigants. The report attached a sample training program for judges and listed the various rules at their disposal to deal with attorneys (e.g. state bar rules, local county rules and guidelines, guidelines from professional associations, federal court rules and guidelines, and referrals of attorneys to the state bar discipline system).
3. Amend the California Rules of Professional Conduct – The proposed new rule or comment to existing rules would state that repeated incivility would constitute professional misconduct and subject the attorney to state bar discipline. Rule 8.4 which deals with misconduct contains paragraph (d) which states that it is professional misconduct for a lawyer to “engage in conduct that is prejudicial to the administration of justice.” It is contemplated that the rule will be changed to reflect “repeated incivility.”
4. Require all attorneys to take a civility oath annually – Since a large number of California attorneys were admitted to practice before 2014, before the Rule 9.7 oath change, this proposal would require all attorneys who renew and pay annual bar dues to swear or affirm they will conduct themselves civilly.
Finally the Task force commented that incivility disproportionately impacts “young lawyers, women lawyers, lawyers of color and lawyers from other marginalized groups and threatens the profession as a whole and the justice system itself.”
On March 24, 2022, at the State Bar of California Board of Trustees meeting, it considered these four proposals and voted to implement an “action plan” which included 1) directing state bar staff to review the one-hour MCLE training requirement including recommending changes to state bar rules which govern MCLE compliance; 2) referring the amendment of the Rules of Professional Conduct to the Committee on Professional Responsibility and Conduct (COPRAC) to draft a new rule or comment to existing Rule 8.4; and 3) directing state bar staff to prepare a public comment solicitation on requiring all attorneys to take the oath annually.
Although these proposals, if implemented will benefit both attorneys and judges, the ultimate beneficiary of acting civil is our fellow citizens who will see that they can place their trust in the legal profession. The joint taskforce report described the severity of the civility issue noting that “bullying, intimidation and nastiness has too often replaced discussion, negotiation and skillful, hard-fought advocacy which interferes with the justice system’s ability to function fairly and reliably.” They also commented that even the perception of incivility is dangerous to democracy and the rule of law because the public will not trust the legal system if it does not believe its gatekeepers, attorneys and judges are “honest and ethical.”
As former United States Supreme Court Chief Justice Warren Burger noted, “the necessity for civility is relevant to lawyers because you are the living exemplars—and thus teachers every day, in every case, and in every court and your worst conduct will be emulated perhaps more readily than your best.”
Going beyond the oath and implementing these proposals will show the public that civility is the hallmark and foundation of our learned profession.