The tone of most judicial opinions runs a little cold. Decisions crafted with logic and authority that read as if they might have been written by Mr. Spock or some futuristic AI. A recent decision of the Fourth District Court of Appeal moves against the trend, blending its logic and authority with a passionate viewpoint that laments the lost civility of the profession. At the same time, the decision cites law that hints at potential ways to enforce civility rules that heretofore have had only the force of a bully pulpit.
The setup in Lasalle v. Vogel, case no. G055381, filed June 11, 2019 (Justice Bedsworth, writing for the Court, with Justices Moore and Ikola concurring) is a legal malpractice action filed by a client ascribing the dismissal of her action for failure to provide discovery to her lawyer's failure to communicate. The defendant lawyer was served with the summons and complaint. Thirty-six days later, after no response was filed in the court, the plaintiff's lawyer sent the defendant lawyer a letter and an email, informing the defendant lawyer that her default would be entered if no response was filed the very next day, a Friday. No response was filed. On Monday a request for entry of default was filed at 4:05 pm and emailed to the defendant. She responded at 5:22 pm, with a request for an extension of time to respond.
By then, it was too late. The defendant lawyer filed a motion for relief from the default. It was opposed, with an opposition that took the opportunity to slime the defendant lawyer with a request for judicial notice (granted) of her discipline in two unrelated matters. Based on the default, a $1 million judgment was entered about a year later.
While the Court expressed sympathy for court and plaintiff and bemoaned the dilatory tactics “we have all encountered [but] we cannot see this as such a situation, and cannot countenance the way this default was taken, so we reverse the judgment.” (Slip opinion at page 4.)
In the pages that follow, the Court cites a long history of judicial opinions bemoaning the decline of civility in litigation practice and states that the Court could have cited many others from other jurisdictions “were we writing a compendium rather than an opinion”. They summarize our current state of affairs from quoting it's own opinion and call to action in Kim v. Westmoore Partners, Inc. (2011) 201 Cal.App.4th267, 293:
Our profession is rife with cynicism, awash in incivility. Lawyers and judges of our generation spend a great deal of time lamenting the loss of a golden age when lawyers treated each other with respect and courtesy. It's time to stop talking about the problem and act on it. For decades, our profession has given lip service to civility. All we have gotten from it is tired lips. We have reluctantly concluded lips cannot do the job; teeth are required. In this case, those teeth will take the form of sanctions. We sanctioned counsel $10,000.
And, aside from the court's power to sanction, what sort of teeth might exist?
The Court notes that “it's gotten so bad the California State Bar amended the oath new attorneys take to add a civility requirement. Since 2014, new attorneys have been required to vow to treat opposing counsel with dignity, courtesy, and integrity. That was not done here. Dignity, courtesy, and integrity were conspicuously lacking.” (Emphasis in the original.)
Because this is a civil action, not a discipline decision, there is no citation to Business and Professions Code section 6103:
A willful disobedience or violation of an order of the court requiring him to do or forbear an act connected with or in the course of his profession, which he ought in good faith to do or forbear, and any violation of the oath taken by him, or of his duties as such attorney, constitute causes for disbarment or suspension.
The Court also cites Code of Civil Procedure section 583.130:
So to the extent it was possible for a party seeking a default with unseemly haste to commit an ethical breach without creating a legal issue, that distinction was erased by section 583.130. The ethical obligation to warn opposing counsel of an intent to take a default is now reinforced by a statutory policy that all parties “cooperate in bringing the action to trial or other disposition.” (§583.130.) Quiet speed and unreasonable deadlines do not qualify as “cooperation” and cannot be accepted by the courts.
Business and Professions Code section 6068(a) provides that “it is the duty of an attorney to do all of the following: (a) To support the Constitution and laws of the United States and of this state.” The State Bar Court has found that “the Supreme Court interprets section 6068(a) as a conduit by which attorneys may be charged and disciplined for violations of other specific laws which are not otherwise made disciplinable under the State Bar Act.” In the Matter of Lilley (Review Dept. 1991) 1 Cal. State Bar Ct. Rptr. 476, 1991 WL 70703.
California law once provided that it was the duty of an attorney to avoid “offensive personality”, former Business and Professions Code section 6068(f). That section was found to be unconstitutionally vague by the Ninth Circuit (United States v. Wunsch, 84 F.3d 1110, 1120 (9th Cir. 1996).) That section had been used to discipline attorneys for extreme violations of the civility rules. Since Wunsch, the conventional wisdom has been that civility codes were well-intentioned but unenforceable through the discipline process.
Lasalle suggests that there are two possible paths to enforce some civility codes: as violations of section 6103 (as oath violations for attorneys admitted after 2014) or section 6068(a) violations based on failure to comply with section 583.130.
It is also worth noting new California Rule of Professional Conduct 8.4(d) states that professional misconduct includes engaging “in conduct that is prejudicial to the administration of justice.” We have no case law yet interpreting just how broad this rule's reach might be.
Is discipline for lack of civility consistent with the public protection mission of the State Bar? The Lasalle Court would probably say yes: “We cannot accept [lawyer incivility] because it is contrary to legislative policy and because it is destructive of the legal system and the people who work within it. Allowing it to flourish has been counterproductive and corrosive” citing increased litigation [Slip opinion at page 10.]
Is discipline for lack of civility consistent with the public protection priorities of the State Bar? That is a question no one can yet answer.