The Erosion of Civility

A Perspective from a “Seasoned” Attorney

The State of Civility:

Civility among lawyers, or the lack thereof, has been a much-discussed topic for many years. Courts have long lamented loss of civility. Several examples are cited in LaSalle v. Vogel (2019) 36 CA 5th 127:

• “Zealous advocacy does not equate to ‘attack dog’ or ‘scorched earth,’ nor does it mean lack of civility…They are not mutually exclusive.”
• “The legal profession has already suffered a loss of stature and public respect. Lawyers and judges should work to improve and enhance the rule of law, not allow a return to the law of the jungle.”
• “Our profession is rife with cynicism and awash in incivility.”
• “The term ‘civil procedure’ is an oxymoron.”
• “Lawyers who know how to think but have not learned how to behave are a menace and liability…to the administration of justice…” -Chief Justice Warren Burger (1971).

So, how have we progressed or regressed in the last 50 years? Where do we stand today and into the near future? These are my personal observations and opinions from the trenches.

Forty or 50 years ago, practice in Contra Costa County was different. Most attorneys knew each other. Many of us gathered together for monthly bar luncheons at places like the Velvet Turtle (long gone) or Zio Fraedo’s (still there). The judges would often join us. There was an air of camaraderie and a lot more one-on-one personal communication. Things got done and cases got settled without formal rules and programs. Handshake deals usually meant something without “this shall confirm…” letters. However, let us not fondly reminisce about the “good old days” with rose-colored glasses. Uncivil litigation practices certainly took place. We usually (and unfairly) blamed out-of-county or “L.A. lawyers.”

As our county grew in size and stature in the Bay Area legal community, with cutting-edge court and bar programs and a stellar bench, a lot of the personal contact disappeared. However, we perceived our bar to be a step above many in our standards of professionalism and civility. In 1993, two youngish CCCBA board members (Linda DeBene and I) drafted “Standards of Professional Courtesy” as guidance for civility among our bar members. The current local rules recite they were formally approved by the Board of Directors of the CCCBA in June 1993. Those standards were readily embraced by our judges. They were, and still are, incorporated in our Local Rules at Rule 2.90, et seq. If you haven’t read them lately, they are highly recommended. It is guaranteed that there will be at least one suggestion that will enhance your practice and benefit a client. This may also help if your opposing counsel starts to go off the rails, as the standards can be considered by the court in sanction motions.

In 2007, the State Bar implemented similar “California Attorney Guidelines of Civility and Professionalism.” They include a voluntary “Attorney’s Pledge,” with a statement that,

“I will abstain from rude, disruptive, disrespectful, and abusive behavior, and will act with dignity, decency, courtesy, and candor with opposing counsel, the courts and the public.”

These guidelines and the state bar “Civility Toolbox” can be found at www.calbar.ca.gov/Attorneys/Conduct-Discipline/Ethics/Attorney-Civility-and-Professionalism.

What Is and What Isn’t Civility?

There isn’t space in this article for detailed definitions or examples of “civility” and “incivility.” Most of us know them when we see them. As general guidelines, the following are some descriptive qualities associated with each:

“Civility:” professional integrity, candor, diligence, courtesy, cooperation, fairness, active listening, competence, honesty, taking the high road.

“Incivility:” rudeness, disruption, disrespect, abusive behavior, bullying, game-playing, harassment, egotism, dishonesty, misrepresentation, sarcasm, condescension, playing hardball, stonewalling, repeated interruption, ad hominem attacks, sexist or racist comments, going low.

How Are We Doing Now?

With the focus and efforts of the legal community promoting civility over the last several years, I would like to say we are in a better place. Unfortunately, I can’t say that. Over the last seven or eight years, civility in our country has taken a nose dive. We are in a period of divisiveness and chaos. This is not a political article so I won’t name names (there are many), but the messages we receive every day from government, politicians, news media and social media seem to be leading us down a rabbit hole of incivility. This permeates all of society and the legal community is not immune. If we believe in civility and the rule of law, we must resist the negative messages we are hit with every day.

To advance that goal, here are some suggestions you can practice to foster civility:

Educate yourself and others about civility issues.

• Be self-aware of your behavior.
• Choose a positive over negative mind set.
• Be “responsive” rather than “reactive.”
• Listen more-you might learn something.
• Connect on a human level, but don’t take things too personally.
• Don’t tolerate the behavior. Speak up against incivility.
• Lead by example – be a role model.
• Don’t catch the rudeness disease.
• Use appropriate humor – it can be an antidote to incivility.
• Display equanimity-even if provoked.

While most in our profession would claim to aspire to civility, the adversarial nature and high stakes involved in our profession challenge that aspiration. We should consider that civility and professionalism help our clients, enhance the legal system, improve our society and make us better people. Give it a shot…