As members of the legal profession, we all owe a duty to act in a professional, ethical, and civil manner. Sadly, not everyone meets these standards, as all of us have experienced one time or another. Many the problem areas concerning conduct of counsel have been memorialized in published opinions of both the California Supreme Court and the Courts of Appeal. The lofty goal of this article is to suggest steps to take to eliminate (or at least reduce) the need for such appellate opinions in the future.

My usual disclaimer applies. Nothing herein is to be considered a local rule of court, an unwritten rule, or a court policy. What follows are simply the views of one judge.

As I have noted in my two-part article on the English Legal System, barristers rarely, if ever, object to questions posed to a witness by an adversary. The explanation is that since barristers are well-trained not only in the law, but also in professionalism and ethics, they would never ask an improper question. The concept that the opposing attorney would never do wrong is ingrained in the English system. Indeed, discovery disputes are rare since it is expected that barristers will always produce all relevant documents to the other side. Unfortunately, the American legal system does not have similar traditions, notwithstanding that it is dependant upon the integrity of its participants, judges and lawyers. As appellate justices have observed, "'it 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.' (People v. Chong (1999) 76 Cal.App.4th 232, 243)." In Re S.C. (2006) 138 Cal.App.4th 396, 412.

That attorneys take their responsibility to act professionally and ethically at all times is extremely important since "[t]he profession of the law possesses extraordinary powers. Lawyers can make the arrogant humble and the weak strong. In control of the course of litigation and armed with the knowledge of right and wrong, they are most able to abjure illegal or tortious conduct; it is their duty to do so. As occupants of a high public trust and officers of the court, they are expected to conform their behavior in legal affairs to a higher standard of rectitude and spirit of obedience than those who are willing to endure the dust of transgression. [¶] Guided by oath, duty and obligation, the lawyer's path avoids the vices from which the virtuous abstain." Kimmel v. Goland (1990) 51 Cal.3d 202, 214.

Upon reading the last sentence of the quoted portion of the opinion of the California Supreme Court, one can only wistfully sigh and ruminate, "if only that were the case." However, to cast a positive light on the subject, happily these words represent the conduct of the majority of lawyers, especially those who are recognized as leaders in the profession. For example, members of the Sacramento County Bar Association are expected to abide by its Standards of Professional Conduct. Those standards are appended to the Local Rules of Court and set forth the standards with which attorneys are expected to comply. A copy may be accessed by using the following link: http://www.saccourt.com /geninfo/local_rules/PDFChapters/2005/Standards%20of%20Professi onal%20Conduct%20010105.pdf.

Members of the American Board of Trial Advocates, invited to join by reason of their demonstrated legal skills and professionalism, subscribe to a comprehensive code of ethics. (The link to the Principles of Civility, Integrity and Professionalism from the American Board of Trial Advocates is as follows: http://www.abotaorg/ about/default.asp?about=4&title=Principles%20of%20Civility,% 20Integrity%20and%20Professionalism.)

Members of the American Inns of Court declare that their raison d'etre is to promote ethics, civility, and professionalism. The web site of the American Inns of Court is http://www.insofcourt.org and the website of the Anthony M. Kennedy Inn of Court, which meets at McGeorge Law School eight times a year is http://www.kennedyinn.org.

The next step for all of us to take is to reach out to the under-informed and educate them on the expectations of the profession and the courts in the areas of ethics, civility and professionalism. New attorneys who join a firm should be educated in the importance of professional, ethical, and civil behavior and should be provided with copies of the County Bar Standards of conduct and the ABOTA "Principles." When an attorney's conduct is less than civil or professional, one should attempt to privately discuss the expected standards of the profession with the offending lawyer. A professional and civil reply to a vituperative letter from opposing counsel is much more effective (at least in the courts' eyes) than a response in kind.

While the vast majority of litigators are ethical and professional, the few that lack these qualities not only give the profession a bad name, but also drive up the cost of litigation, both in terms of monetary cost and the consumption of limited judicial resources. Several appellate courts have felt the need to comment on improper conduct or impose sanctions because of it. The following examples illustrate the frustration of the appellate courts with less than civil behavior from civil practitioners.

In Pierotti v. Torian (2000) 81 Cal.App.4th 17, 32, the appellate court found that the tone of the brief, with its ad hominem attacks, was "more cathartic than tactical," but observed that an appellate brief is not the proper place for a litigator to "vent his spleen" because it requires a response by the opponent and processing by the court. "Thus, an unsupported appellate tirade is more than just words on paper; it represents a real cost to the opposing party and to the state." Id. at pp. 32-33.

In Townsend v. Superior Court (1998) 61 Cal.App.4th 1431, 1438, the Court made the following observation: "[W]e note with dismay the ever growing number of cases in which most of the trappings of civility … are lacking."

The simple and plain fact is that judges do not appreciate being caught in the middle of a war waged by the competing attorneys. An attorney should consider the following five points before participating in an unprofessional exchange:

1. The attorney can expect that the email or letter containing what the attorney said "in the heat of the moment" will be an exhibit to whatever motion is pending before the court. If the case goes to trial, resourceful counsel on the other side will find a way to get those words before the jury. They may also provide proof of the required element of malice in a subsequent malicious prosecution case.
2. Business and Professions Code § 6068(d) makes it the duty of every attorney to "employ, for the purpose of maintaining the causes confided to him or her those means only as are consistent with truth, and never to seek to mislead the judge or any judicial officer by an artifice or false statement of fact or law." Personal attacks on an opposing lawyer may not be "consistent with truth" and may "seek to mislead the judge."
3. Such conduct is both unprofessional and inappropriate and lowers the attorney's standing in the eyes of the Court and reflects poorly on the legal profession.
4. Even if such accusations do not meet the definition of section 6068(d), they still may constitute misconduct. In Re S.C. (2006) 138 Cal.App.4th 396, 412
5. Such conduct will violate the Sacramento Local Rules of Court. Appendix A to the Local Rules consists of the Sacramento County Bar Associations Standards of Professional Conduct, which the Court expects counsel will follow in their dealings with each other and the court in the course of the litigation.

The duty of civility and professionalism also apply to the interaction between counsel and the Court. Even if in the attorney's judgment, the Court's ruling is wrong, it is still counsel's duty to "maintain the respect due to the courts of justice and judicial officers." Business and Professions Code § 6068(b). See Hawk v. Superior Court (1974) 42 Cal.App.3d 108, 126 and People v. Massey (1955) 137 Cal.App.2d 623, 625(attorneys, as officers of the court, owe a duty of respect to the court). The purpose of the rule is not to provide a shield against criticism for judges, but rather is to make sure that the public maintains confidence in the fairness and impartiality of the American system of justice. Standing Committee v. Yagman (9th Cir. 1995) 55 F. 3d 1430, 1437.

"Disparaging the trial judge is a tactic that is not taken lightly by a reviewing court. Counsel better make sure he or she has the facts right before venturing into such dangerous territory because it is contemptuous for an attorney to make the unsupported assertion that the judge was 'act[ing] out of bias toward a party.' (In re White (2004) 121 Cal.App.4th 1453, 1478 [18 Cal. Rptr. 3d 444].)" In re S.C. (2006) 138 Cal.App.4th 396, 423.

Other examples of improper conduct towards a court include accusations of illegal behavior (Ramirez v. State Bar (1980) 28 Cal. 3d 402); accusing the judge of intentionally ignoring the law (In re White (2004) 121 Cal.App.4th 1453, 1478); accusing the judge of being "intellectually dishonest" (People v. Chong (1999) 76 Cal. App. 4th 232, 236). Perhaps one of the more egregious comments was one made by a male attorney to a female judge, stating, "you're not my mother." (McCann v. Municipal Court (1990) 221 Cal.App.3d 527, 540-41.)

Civility and professionalism is a two way street and judges owe a duty to respond civilly and professionally to attorneys in their courtroom, consistent with the Court's duty to maintain order and regulate the proceedings. Judges are bound by the Canons of Judicial Conduct to be "patient, dignified, and courteous to litigants" (Canon 3 (B)(4)) and to perform the Court's duties "without bias or prejudice" (Canon 3 (B)(4)). ABOTA, as part of its Principles of Civility, Integrity and Professionalism has included Counsel's expectations concerning the conduct of judges hearing the matter. These "Principles" should be read and applied by all judicial officers, including those serving as temporary judges.

The State Bar's new president, Sheldon Sloan, has stated as a goal of his term of office to improve civility and professionalism among attorneys. He has created a task force appropriately titled Attorney Civility Task Force, the goal of which is to improve civility among attorneys. The charge of this task force is to recommend to the State Bar President appropriate procedures and programs that when implemented will improve attorney civility and professionalism. This will be an important step in the right direction.

January/February 2007