Consequences for Incivility Coming Soon to California?

Tired of inappropriate comments, intimidation, bullying, or other appalling behavior from a fellow lawyer often disguised as zealous representation taking the place of professional discussion, negotiation, and skillful, hard-fought advocacy? Unfortunately, you are not alone. Thankfully, help may soon be on the way.

Unlike many other states that addressed this issue long ago, civility in California’s legal community presently depends on the sheer goodwill of its members to adhere to the aspirational California Attorney Guidelines of Civility and Professionalism with no prescribed consequences to deter or punish bad behavior. Fortunately, in 2019, about forty leading judges and lawyers from across the state agreed that something had to be done to combat incivility. They came together to form the California Civility Task Force chaired by Presiding Justice Brian S. Currey of the Second District Court of Appeal and sponsored by the California Lawyers Association and the California Judges Association. In 2021, the task force presented proposed key initiatives aimed at improving civility in California’s legal industry. After consideration by our State Bar, including multiple public comment periods that garnered a vast amount of support, the State Bar Board of Trustees unanimously approved three of the Civility Task Force’s proposals in July:

  1. Amend California Rule of Court 9.7 to require all California lawyers to take the current version of the oath containing the pledge to strive for civility, which was previously only required of lawyers licensed in California since June 2014, and reaffirm that commitment each year.
  2. Amend California’s Rules of Professional Conduct 1.2 and 8.4 and adopt proposed new rule 8.4.2, to make incivility (as defined) a disciplinary offense. Proposed rule 8.4.2 defines incivility as “significantly unprofessional conduct that is abusive or harassing and shall be determined on the basis of all the facts and circumstances surrounding the conduct.”
  3. Require 1 hour of a civility MCLE during each 3-year MCLE compliance period to be included within the current total of 25 credits.

Though our State Bar’s acceptance of these changes is a massive step forward, the proposals must be approved by the California Supreme Court.  If approved by our high court this year, civility will no longer be dependent on the pure good faith of our colleagues. Instead, 2024 will usher in incivility as a disciplinable offense, and every California lawyer will be required to sit through one civility MCLE each reporting period and annually swear to the current attorney oath beginning February 1, 2024. All specially admitted lawyers authorized to practice law in California, including registered in-house counsel, registered military spouse attorneys, certified law students, registered foreign legal consultants, registered legal aid attorneys, and others will be subject to these changes as well.

Of course, there is no guarantee that these changes will eradicate incivility within our legal community.  However, any positive change is a step in the right direction.