May 2016 | Earn one hour of MCLE Credit in Legal Ethics
By Scott B. Garner
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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.
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.”
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.
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.
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.
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.
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.
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
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).
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.
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