Form Over Substance? Fostering the Evolution of a National Standard for Attorney Conduct
by David Boyd

The reality of a modern litigation practice is a long way from what I imagined as an aspiring law student 25 years ago. Like many of my generation, I held an idealized view of courtroom lawyers as the epitome of civility and integrity, humbled by the weight of great responsibility, yet fearless in their advocacy. The practice of law was not just a job. It was a noble profession shared with brothers and sisters in the law bound by a commitment to our system of justice and a mutual respect for each other.

Real life turned out to be a bit more complicated. Like a mirror, some lawyers reflect the rancor of their warring clients, at the expense of civility and decorum. Rather than allowing themselves to be perceived as weak, these attorneys disrupt legitimate discovery, resort to unnecessary law and motion and promote anger and distrust between counsel. If success in court means “hardball” litigation tactics, some lawyers overlook the ethical questions raised by such conduct. California courts have noted with dismay the ever growing number of cases in which civility between counsel is lacking. Townsend v. Superior Court (1998) 61 Cal.App.4th 1431, 1438; Tilo v. Superior Court (1997) 55 Cal.App.4th 1379, 1386, fn. 3.) In the media, we are routinely subjected to real and fictionalized examples of unprofessional behavior by attorneys, notable for its lack of civility and disrespect for opposing counsel and the court. It should come as no surprise that public confidence in lawyers and the system of justice has suffered.

A November 2002 Gallup Poll asked a cross-section of the public to rate the ethical standards of 21 different professions. Attorneys continue to be at the bottom of the list, with 35 percent of the respondents rating the honesty and ethics of lawyers to be low or very low. Only telemarketers and car salesmen fared worse.

The legal profession is by its very nature adversarial and confrontational. Attorneys are advocates primarily concerned with the protection of their client’s legal rights against opposing interests. A lawyer’s first obligation is to zealously protect and pursue the client’s legitimate interests within the bounds of the law. However, the lawyer is also charged with maintaining a professional, courteous and civil attitude toward others in the legal system. “An attorney has an obligation not only to protect his client’s interest, but also to respect the legitimate interest of fellow members of the bar, the judiciary and the administration of justice.” (Kirsch v. Duryea (1978) 21 Cal.3d 303, 309.) In this respect, civility and professionalism are not deemed to be inconsistent with zealous representation, but rather enhance the speedy resolution of dispute within our system of justice. Although a client may pressure his attorney to exacerbate combat with opposing counsel, using confrontation may better serve the client’s legitimate legal interests. In a recent opinion of the Third District Court of Appeal, this ethical principle was stated as follows:

“[I]t is vital to the integrity of our adversary legal process that attorneys strive to maintain the highest standards of ethics, civility, and professionalism in the practice of law. In order to instill public confidence in the legal profession and our judicial system, an attorney must be an example of lawfulness, not lawlessness. Accordingly, an attorney, ‘however zealous in his client’s behalf, has, as an officer of the court, a paramount obligation to the due and orderly administration of justice. . . .’” (People v. Chong (1999) 76 Cal.App.4th 232, 243, citing Chula v. Superior Court (1952) 109 Cal.App.2d 24, 39.)

The California courts have emphasized that civility and professionalism are ethical issues of paramount importance in promoting public confidence in the administration of justice. It is, therefore, disappointing that the California Rules of Professional Conduct fail to even address the subject, perhaps out of concern that such rulemaking might create a “gray letter” standard for attorney discipline. Moreover, the statutory admonition that California attorneys abstain from “offensive personality,” was amended out of subdivision (f) of Section 6068 of the Business and Professions Code because that term was held by a federal court to be unconstitutionally vague. (United States v. Wunsch (9th Cir. 1996) 84 F.3d 1110.) Unfortunately, this situation provides little guidance to the conscientious California practitioner and is no doubt taken as license by the by the less scrupulous.

In contrast to the “hands off” approach under the California Rules, the House of Delegates of the American Bar Association adopted “A Lawyer’s Creed Of Professionalism” in 1988. These voluntary standards enumerate specific ways in which the attorney is encouraged to comply with his or her responsibility for civility and professionalism. A number of local bar associations in California, including the Sacramento County Bar Association, have followed this example and adopted local voluntary standards.

In 1994, under the leadership of then-President Kenneth Malovos, the Sacramento County Bar Association adopted its Standards of Professional Conduct (“Standards”), which are structured to provide specific guidance with respect to the professional relationships between opposing counsel and with the court. These Standards have been incorporated into Local Rule 9.22 of the Sacramento County Superior Court. Although violation of these Standards is not a ground for discipline before the State Bar, the Standards may be considered, within the discretion of the court, for the purpose of evaluating the appropriateness of sanctions under Sections 128, 128.5, 128.7, 177 and 177.5 of the Code of Civil Procedure.

The Standards represent a salutary example of local bar leadership in an area that has not received adequate treatment at the State Bar level. Every lawyer practicing in the Sacramento County Superior Court should become familiar with the Standards, which may be found on the court’s web site at . (The Standards will be published in full in the next edition of Sacramento Lawyer.)