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We Do Need No Stinkin� Civility Codes

by Dan Lawton

Are you sick and tired of hearing about civility? I sure am. Speeches, reports, letters from bar presidents, and law review articles about it have abounded for at least ten years. For years, groups have drafted codes to combat the problem. (See Comment, “A Critique of the Civility Movement: Why Rambo Will Not Go Away,” 77 Marq. L. Rev. 751, p. 752 (Summer 1994).) These now include our own State Bar, whose Litigation Section has recently published a Model Code of Civility and Professionalism. These codes resemble papal encyclicals: scarcely read, even more scarcely heeded, and widely viewed as irrelevant by the faithful. No empirical study links civility codes to better behavior. Indeed, much suggests that such codes have no impact whatsoever. Sadly, I expect the same will be true of the State Bar�s new Model Code. Indeed, because the Model Code is aspirational only, it sends a bad message: we do care enough about the values embodied in them to enforce them.

What good are civility codes? Sadly, they are no good at all. The late Sam Dash had no use for such civility codes. His reasoning was simple: “If you're a professional, you do need a Boy Scout oath. If you're not a professional, a Boy Scout oath is flim-flam.”

Civility codes wo create civility. No matter how well-meant and painstakingly drafted, the Model Code (and other codes, like ABTL�s recently-published civility guidelines) are symbolic gestures -- not real things. Such symbolic gestures drain precious credibility capital. Promulgating unenforced codes only highlights that we say one thing and do another. Thus civility codes do just illustrate attorney hypocrisy; they advertise it. We do need codes and creeds. What we need are other things.

Civility Codes Have Been Around for Twenty Years and Accomplish Nothing

Civility codes have been around long enough for us to assess whether or not they work. (See A. Mashburn, “Professionalism in the Practice of Law: A Symposium on Civility and Judicial Ethics in the 1990s,” 28 Val. U.L. Rev. 657, p. 685 (Winter 1994).) As long as twelve years ago, at least a hundred civility codes existed throughout the country. As long as ten years ago, at least 69 local bar associations and dozens of supreme courts had adopted similar codes or creeds (as well as thirteen federal district courts and one federal circuit court). (See ibid.) No evidence exists these codes have had any impact whatever. In fact, they do work, and people who�ve studied them more than I can tell you so. (See Comment, “Civility Codes: the Newest Weapons in the “Civil” War Over Proper Attorney Conduct Regulations Miss their Mark,” 24 Dayton L. Rev. 151, 184-185 (Fall 1998); J. Cary, “Rambo Depositions: Controlling an Ethical Cancer in Civil Litigation,” 25 Hofstra L. Rev. 561, p.597 & n.160 (Winter 1996).)

Consider the anecdotal evidence too. Everyone agrees our bar is less civil than ever. If civility codes worked, we�d know it by now. They do. Their efficacy is as a “sense of the Senate” resolution exhorting kids to listen up when their dads talk to them: dubious.

The impotence of civility codes is not hard to understand. First, civility codes lack any enforcement mechanism. (M. Aaronson, “Be Just to One Another: Preliminary Thoughts on Civility, Moral Character, and Professionalism,” 8 St. Thomas L. Rev. 113, p. 115 (fall 1995).) (One need look no further than a loosely officiated high school basketball game to see that unenforced rules are routinely broken.) Second, they lack clarity. Civility codes (like the Model Code) brim with words like “integrity,” “courtesy,” “abusively,” “discourteously,” “professional manner,” “offensive,” “reasonably believes,” and so forth. These terms lack any determinate meaning. Without clarity, judges understandably refuse to sanction offending attorneys. (This is despite the fact they have inherent and statutory authority to do so based on other, enforceable standards such as those provided by Business and Professions Code section 6068, the Rules of Professional Conduct, and local rules). Attorneys sense rightly that violating civility codes will mean no consequences, so they ignore them. And why should they? The codes are meaningless in real life. And our real lives are too full of meaningful things to heed meaningless things.

The Litigation Section�s Model Code Is Well-Intentioned but Unfortunately Meaningless in Real Life

Want to act uncivilly? Though not so intended, the Model Code is written for you. It has the loopholes you need.

Want to say no when your opponent asks you for more time on something? Think of a “need for a prompt resolution of the matter,” “or how an extension would “substantially prejudice the lawful objectives of” your client. (Model Code, section 3(g), (i).)

Want to serve 800 interrogatories, only a fraction of which are truly pertinent, in a small-stakes case? No problem � the Model Code does even address the propounding of excessive written discovery (only uncivil responses to discovery). (Model Code, section 5.)

Want to attack an opponent�s intelligence, integrity, motive, or conduct? Do it. It�s the “relevant to the matters a lawyer is handling on behalf of his/her clients under the controlling substantive law.” (Model Code, section 3(b).)

Want to violate the Code without even the excuse of an exception? That�s no problem either. Nothing bad will happen to you. The Code “should not be deemed to create . . . any substantive legal duty of lawyers.” It “is not a set of legal rules or regulations that can be enforced in a Court of law . . .” (Model Code, Preamble.) The Code lacks any enforcement mechanism whatsoever.

There Are Other, Better Ways to Fix Incivility

Bars and courts: if you're going to write civility codes, make them enforceable (as in the Northern District of Texas). The bogeyman of “satellite litigation” is not too high a price to pay to fix what everyone agrees is a chronic problem. Such litigation would wane as miscreants suffered pain and behavior improved. (J. Cary, “Rambo Depositions: Controlling an Ethical Cancer in Civil Litigation,” 25 Hofstra L. Rev. 561, p. 593 (Winter 1996).) No one doubts that, without satellite litigation, uncivil behavior has only worsened.

Attorneys: enroll in ABTL and an Inn of Court; show up; and help put on programs. Firms and agencies, require membership in such groups for your attorneys. ABTL and the Inns foster civility through regular gatherings and training. Who would think of being rude to a friend with whom you�d enjoyed lunch at a monthly Inn of Court team meeting? You would.

Law school deans: start teaching civility � both in the classroom and by example. No first year law student humiliated in a Socratic “dialogue” by a cranky law professor can forget it. Many students so treated wind up believing that such behavior is the norm for powerful attorneys. That should happen. Kingsfield is dead. An interest in civility must start at the earliest possible point in lawyers� socialization. (Aaronson, supra at p. 116.) That point is law school.

Senior lawyers and practice group leaders: teach civility to your lawyers. Imprint them. Whether you like it or not, it�s your responsibility to do it � no less than it�s your responsibility to turn in your timesheets. If you hear of bad behavior by your lieutenants, do insulate yourself from it � involve yourself in it, personally, and now. Are you too busy? We're all too busy. But the civility problem is too big and too insidious for you to say you're too busy to pay attention to it.

You and I: quit hiding behind our computers, fax machines, Blackberries, and secretaries. This is ever more the nature of our practice. (T. Gee and B. Garner, “The Uncivil Lawyer: A Scourge at the Bar,” 15 Rev. Litig. 177, p. 183 (Univ. of Texas at Austin School of Law Winter 1996).) But we need let it be so. Let�s solve our differences in person � let�s meet and confer, not swap letters. Judge Richard Haden of San Diego once ordered me and an opponent to meet for coffee in front of the courthouse. We did it. It worked. Problems that had occupied multiple faxed letters melted away in a few minutes.

All of us: out offenders. Has someone taken a default without warning by running down to court after knowing you were being hired, then refused to set it aside? Out him. Tell all your friends in the bar about him. Judges relish reminding you how they talk privately about us with their colleagues. You should do the same thing. Country clubs shame deadbeat members who do pay their tabs on time by posting their names on a bulletin board. Why do you think they do it? Because it works. You can and should do the same thing when an opponent behaves badly.

Judges: police incivility. You do want to do it. But if you do do it, who will? Obviously we have done it for ourselves. Courts can and do sanction outrageous behavior when asked. So do it when we ask you. Punish offenders sua sponte when appropriate (as the Delaware Supreme Court did to Joe Jamail). (See Paramount Communications, Inc., v. QVC Network, Inc. (1999) 637 A.2d 32, pp. 52, 53 & n.23.) U.S. Magistrate Judge McCurine (of the Southern District of California) makes himself available by telephone to deal, now, with discovery disputes (including on the spot during depositions). Perhaps you can too. If you like the Model Code, invoke it in your decisions. Other courts have. (See Starbrite Waterproofing Co., Inc. v. AIM Construction & Contracting Corp. (S.D.N.Y. 1996) 164 F.R.D. 378 [invoking New York State Bar voluntary Guidelines on Civility in Litigation in sanctioning counsel for misconduct at depositions].)

Your Honors: act civilly. We should no more tolerate rudeness from judges than rudeness from lawyers. Yet uncivil behavior from the bench exists. (See T. Gee and B. Garner, supra, 15 Rev. Litig. at p. 180 & n. 16 [half of judges surveyed complained of uncivil behavior by other judges].) It erodes respect and sets a horrible example. If judges ca have manners, how can they credibly police incivility among attorneys? If a judge has acted rudely to you or your client, do let it go. Turn him in to the Commission on Judicial Performance.

Finally, let�s all look in the mirror. It�s a bitter pill to swallow, but we have met the enemy, and he is us. (See Hon. Paul J. Kelly, Jr., Remarks: A Return of Professionalism, 66 Fordham L. Rev. 2091, p. 2093 (May 1998).) For once, stop blaming the jerk at the other end of the telephone. Instead, I must look at myself � and you at yourself. “The sad truth is that we, or at least some of us, just might be part of the problem.” (Frost, supra at p. 8.) It is we who are to blame for incivility in our bar. Let us face the ugly truth.

So: be a one-man (or one-woman) army who lives by a new, unwritten creed. Lawyers like the late Jack Crumley (and of his generation) did need a creed on a wall to tell them what to do. They were the professionals Sam Dash talked about. Let�s be like them.

In the meantime, until we drop the impotent formality of symbolic gestures like civility codes, we�ll be talking and writing about the civility crisis for many more years � and kicking it down the road for our successors to handle after we're gone. In the meantime there is plenty we can do without the Model Code. So let�s do it!

Dan Lawton is a trial and appellate lawyer who has practiced in downtown San Diego since 1987.

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