May 2016 | Earn one hour of MCLE Credit in Legal Ethics
Attorney civility: When zealous advocacy crosses the line
On March 9, an Orange County prosecutor and a defense attorney came to blows over a disagreement in a case involving jailhouse snitches. A few months before that, a court issued terminating sanctions against a party whose lawyer threatened opposing counsel at a deposition with pepper spray and a Taser. Crawford v. JPMorgan Chase Bank, N.A., 2015 WL 8355515 (Dec. 9, 2015).
These are just two in a long list of recent and not-so-recent instances of attorney incivility. Yet attorneys need not engage in fisticuffs or assault with a deadly weapon to cross the line from civil to uncivil. It takes much less, and unfortunately many of us see it every day. Sometimes it comprises name-calling, such as the attorney who tells his opposing counsel that her conduct at a deposition “is not becoming of a woman.” It also could consist of a refusal to extend a reasonable and harmless courtesy, such as a brief extension necessitated by a holiday. See Ahanchian v. Xenon Pictures, Inc., 624 F.3d 1253, 1263 (9th Cir. 2010).
A comment to the ABA Model Rules, adopted in most states, requires that lawyers zealously represent their clients. Model Rule 1.3, cmt. 1 (“A lawyer must also act with commitment and dedication to the interests of the client and with zeal in advocacy upon the client's behalf.”) Although California does not follow the ABA Model Rules and California’s Rules of Professional Conduct do not expressly include a “zealous advocacy” requirement, it is commonly understood that lawyers in this state have a similar obligation to zealously advocate on behalf of their clients. Yet, as the comment to Model Rule 1.3 also states, “The lawyer’s duty to act with reasonable diligence does not require the use of offensive tactics or preclude the treating of all persons involved in the legal process with courtesy and respect.” Id. In other words, be zealous, but be civil.
The State Bar of California took note of the frequency of uncivil conduct by its lawyers and, in an effort to stem an unwanted tide, passed Civility Guidelines in 2009. The guidelines are intended to cover a lawyer’s professional dealings with clients, other counsel, third parties, the court and the public. The goal is to “foster a level of civility and professionalism that exceed the minimum requirements of the mandated Rules of Professional Conduct as the best practices of civility in the practice of law in California.”
The guidelines are admittedly aspirational, and their “violation,” absent some other independent transgression, will not subject a lawyer to discipline. Often, however, there is an intersection between what is encouraged as civil behavior and what is required as ethical conduct. For example, Business and Professions Code section 6068(b) states, “It is the duty of an attorney ... [t]o maintain the respect due to the courts.” Although this may sound like an aspirational civility guideline, its placement in the State Bar Act makes it a mandatory requirement for all lawyers practicing in California. Section 6068(f) provides, “It is the duty of an attorney ... [t]o advance no fact prejudicial to the honor or reputation of a party or witness, unless required by the justice of the cause with which he or she is charged.” Thus, with limited exceptions, attacking an adverse party or witness not only runs afoul of the Civility Guidelines (including Section 4.c., which provides that “[a]n attorney should not disparage the intelligence, integrity, ethics, morals or behavior of the court or other counsel, parties or participants when those characteristics are not at issue”), but also of the State Bar Act.
Rules about civility also can be found in other statutes besides the State Bar Act. For example, Civil Procedure Code section 1209(a) provides several examples of “contempts of the authority of the court,” including (1) “[d]isorderly, contemptuous, or insolent behavior toward the judge while holding the court, tending to interrupt the due course of a trial or other judicial proceeding”; (2) “[a] breach of the peace, boisterous conduct, or violent disturbance, tending to interrupt the due course of a trial or other judicial proceeding”; or (9) “[a]ny other unlawful interference with the process or proceedings of a court.” Similar prohibitions are included in Penal Code section 166, which provides that “a person guilty of any of the following contempts of court is guilty of a misdemeanor: (1) Disorderly, contemptuous, or insolent behavior committed during the sitting of a court of justice, in the immediate view and presence of the court, and directly tending to interrupt its proceedings or to impair the respect due to its authority.”
State Bar ethics opinions also have tackled issues of civility, in some cases concluding that conduct some might consider merely uncivil crossed the line into unethical. One recent example relates to the redlining of agreements between opposing counsel. Civility Guideline Section 18 is entitled “Negotiation of Written Agreements.” It provides, “An attorney should negotiate and conclude written agreements in a cooperative manner and with informed authority of the client.” It then provides certain examples. Example “b” states, “If any attorney modifies a document, the attorney should clearly identify the change and bring it to the attention of other counsel.” The State Bar’s Committee on Professional Responsibility and Conduct tackles this very situation (among others) in its Formal Opinion No. 2013-189.
Opinion No. 2013-189 addressed the drafting of an agreement for the sale of a company. During the negotiation, the seller’s counsel made certain changes, but inadvertently neglected to show those changes in a circulated redline. When the seller’s attorney realized his error, he was instructed by his client not to inform the buyer’s attorney of the error. The committee concluded that, although the initial redlining error was unintentional and thus not unethical, the failure to disclose that error to the buyer’s attorney was deceitful and constituted an ethical breach. Id. at 6. In reaching this conclusion, the committee relied not on the Civility Guidelines but rather on case law and ethical rules. For instance, it cited the Supreme Court decision Kirsch v. Duryea, 21 Cal. 3d 303, 309 (1978), which found, “An attorney has an obligation not only to protect his client’s interests but also to respect the legitimate interests of fellow members of the bar, the judiciary, and the administration of justice.” Opinion No. 2013-189 at 3. It also cited Opinion 1967-11, which itself relied on ABA ethical canons: “It is true that, under [former] canon 15 of the Canons of Ethics of the American Bar Association, an attorney must zealously advance the interests of his client, but not by using ‘any manner of fraud or chicane. He must obey his own conscience and not that of his client.’ One of the obligations of conscience to which the lawyer must conform is stated in [former] canon 22: his conduct with other lawyers ‘should be characterized by candor and fairness.’” Opinion No. 2013-189 at 3.
Nevertheless, the opinion noted that attorneys do not owe a general duty to nonclients, citing Fox v. Pollack, 181 Cal. App. 3d 954, 961 (1986) (“[A]n attorney has no duty to protect the interests of an adverse party [citations] for the obvious reasons that the adverse party is not the intended beneficiary of the attorney’s services, and that the attorney’s undivided loyalty belongs to the client”). Opinion No. 2013-189 at 4. It also noted that there is no liability for conscious nondisclosure absent a duty of disclosure, citing Goodman v. Kennedy, 18 Cal. 3d 335, 342 (1976). Opinion No. 2013-189 at 4.
An attorney also has a general duty to act honestly, and that duty is not limited to dealings with the client. Business and Professions Code section 6106, for example, provides that “[t]he commission of any act involving moral turpitude, dishonesty or corruption, whether the act is committed in the course of his relations as an attorney or otherwise, and whether the act is a felony or misdemeanor or not, constitutes a cause for disbarment or suspension.” In balancing these authorities, Opinion No. 2013-189 concludes that the failure of the hypothetical seller’s attorney to advise the other side of a drafting or redlining error constituted an ethical violation: “While an attorney’s professional duty of care extends only to his own client and intended beneficiaries of his legal work, the limitations on liability for negligence do not apply to liability for fraud. [citation.] Accordingly, a lawyer communicating on behalf of a client with a nonclient may not knowingly make a false statement of material fact to the nonclient.” Opinion No. 2013-189 at 5 (citing Vega v. Jones, Day, Reavis & Pogue, 121 Cal. App. 4th 282, 291 (2004)). The opinion further states, “[W]here one does speak he must speak the whole truth to the end that he does not conceal any facts which materially qualify those stated.” Opinion No. 2013-189 at 5 (citing Cicone v. URS Corp., 183 Cal. App. 3d 194, 201 (1986)). The opinion concludes “that the failure to correct that error and advise Buyer’s Attorney of the change might be conduct that constitutes deceit, active concealment and/or fraud. ...” Opinion No. 2013-189 at 6.
Opinion No. 2013-189 provides just one example of an instance of uncivil conduct that crosses a line to become unethical conduct. Opinion No. 2015-194 provides another. That opinion discusses the concept of “puffing” in settlement negotiations and similarly concludes that there is at least some duty to the opposing side not to engage in deceitful conduct. As that opinion notes, “The duty of a lawyer, both to his client and to the legal system, is to represent his client zealously within the bounds of the law.” Id. at 2 (citing Hawk v. Super. Ct., 42 Cal. App. 3d 108, 126 (1974)). Opinion 2015-194 expressly cites the State Bar’s Civility Guidelines, but notes that they are nonbinding. Id. at 3 & n.5.
Yet another example of the intersection between civility and mandated, ethical conduct is a lawyer’s obligation when a privileged document is inadvertently produced. Civility Guidelines Section 9, subsection b.1., states: “If an attorney inadvertently receives a privileged document, the attorney should promptly notify the producing party that the document has been received.” This is more than a guideline, however; it is an obligation mandated by the California Supreme Court. In Rico v. Mitsubishi Motors Corp., 42 Cal. 4th 807, 817-818 (2007), the court disqualified counsel who used an inadvertently produced privileged document rather than notify or return it to opposing counsel. The court framed the issue as follows: “[W]hether reasonably competent counsel, knowing the circumstances of the litigation, would have concluded the materials were privileged, how much review was reasonably necessary to draw that conclusion, and when counsel’s examination should have ended.” Id. at p. 818. The conclusion that a lawyer risks disqualification for failing to return inadvertently produced material is reiterated and drawn upon in State Bar Formal Opinion 2013-188, which finds that a lawyer had an ethical obligation to return a privileged document anonymously sent by a third party, even where the lawyer suspected the document would be subject to the crime-fraud exception and, thus, not privileged. See Cal. Evid. Code §956 (no attorney-client privilege if services were sought or obtained to enable or aid anyone to commit or plan to commit a crime or fraud).
As is often the case, the lawyer in Rico could have avoided a messy disqualification had he followed his conscience and the Civility Guidelines. Even where a specific guideline is not mirrored in case law, an ethical rule, or an ethics opinion, a lawyer nonetheless would be well-served to follow the guidelines in order to avoid coming close to an ethical line, angering a judge, and generally providing a disservice to himself, his colleagues in the bar, his client, and the judicial system generally. As one court stated, “[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.” People v. Chong, 76 Cal. App. 4th 232, 243 (1999).
Scott B. Garner is a partner at Umberg Zipser LLP in Irvine. He practices in the area of complex business litigation, with an emphasis on lawyer liability and legal ethics. He just completed a term as chairman of the State Bar’s Committee on Professional Responsibility and Conduct, and currently serves as the adviser to that committee. He is the co-chairman of the Orange County Bar Association’s (OCBA) Professionalism and Ethics Committee, the co-chair of the OCBA Civility Task Force, a member of the OCBA’s Board of Directors and president of the Orange County Chapter of the Association of Business Trial Lawyers.