Beyond the Oath: Recommendations for Improving Civility - Initial Report of the California Civility Task Force
| Publication year | 2021 |
| Author | Justice Brian S. Currey, on behalf of the California Civility Task Force |
Justice Brian S. Currey, on behalf of the California Civility Task Force
A Joint Project of the California Lawyers
Association and the California Judges Association
September 2021
In 2014, the California Supreme Court—at the recommendation of the State Bar of California Board of Trustees—took a significant step aimed at improving civility among California lawyers. It adopted what is now rule 9.7 of the California Rules of Court, adding new language to the attorney oath of admission. The new rule required anyone thereafter admitted to practice law in the Golden State to swear or affirm: "As an officer of the court, I will strive to conduct myself at all times with dignity, courtesy and integrity."
The change resulted from an admirable effort by the American Board of Trial Advocates (ABOTA) and its allies to inspire greater focus on civility and professionalism by convincing states to add civility language to their oaths. Pat Kelly, then Chair of the State Bar Board of Trustees and now a member of this task force, drafted the language and shepherded the effort in California. The hope was and is that the oath's aspirational language would influence new lawyers to embrace civility.
The changed oath signaled a renewed commitment to civility by the legal profession. But while the commitment remains, incivility persists. Most lawyers entered the profession before 2014 and have never taken the oath. And many who have taken the oath seem to have forgotten their promise. In an era marked by coarseness and political division, the legal profession suffers from a scourge of incivility. Discourtesy, hostility, intemperance, and other unprofessional conduct prolong litigation, making it more expensive for the litigants and the court system. Moreover, incivility among lawyers extends beyond litigation, interfering with, if not derailing, transactions of every kind. It can create toxic workplaces. And unfortunately, young lawyers, women lawyers, lawyers of color, and lawyers from other marginalized groups are disproportionately on the receiving end.
The time has come for remedial action beyond the oath. This report sets forth four concrete, realistic, achievable, and powerful proposals to improve civility in California's legal profession. Through this initial report, the California Civility Task Force asks its sponsoring organizations, the California Lawyers Association (CLA) and the California Judges Association (CJA), to endorse these proposals and join in asking the State Bar and Supreme Court to implement them.
- Require one hour of MCLE devoted to civility training, included in the total number of MCLE hours currently required. Approved civility MCLE programs should highlight the link between bias and incivility and urge lawyers to eliminate bias-driven incivility.
- Provide training to judges on the need to both curtail incivility and model civility, both inside and outside the courtroom, explaining the tools available to them to do so.
- Enact meaningful changes to State Bar disciplinary rules, prohibiting repeated incivility and clarifying that civility is not inconsistent with zealous representation; and
- Require all lawyers, not just those who took the oath after the 2014 rule change, to affirm or reaffirm during the annual license renewal process that: "As an officer of the court, I will strive to conduct myself at all times with dignity, courtesy and integrity."
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The California Civility Task Force
The California Civility Task Force is a joint project of the CLA and CJA. It consists of approximately forty leading lawyers and judges from across the state, all committed to fairness, justice, and the improvement of the legal profession.
The task force is sui generis, having arisen from grass-roots concern about incivility and having been embraced by the State Bar of California, CLA, and CJA.
In 2019, leaders of the Association of Business Trial Lawyers (ABTL) from across the state gathered for a weekend retreat. More than 100 prominent judges and lawyers spent several hours addressing incivility and possible responses to it, in a wide-ranging discussion moderated by Court of Appeal Justice Brian Currey.
Not content merely to talk about incivility, the participants resolved to do something about it. First, the Los Angeles ABTL chapter published a summary of the discussion and a collection of articles growing out of it (attached as Appendix 2 to the report). Second, on behalf of this group, Justice Currey approached Alan Steinbrecher, then Chair of the Board of Trustees of the State Bar, to inquire about the possibility of implementing one of the group's proposed solutions: designating one hour of the existing MCLE requirement for civility training. Steinbrecher's response was to appoint Justice Currey as Chair of this task force, and request that Justice Currey assemble a talented and diverse group of judges and lawyers, examine the issues, and return with a series of proposals. He also designated Brandon Stallings, a member of the State Bar Board of Trustees, to serve as Vice Chair of the task force. At the suggestion of Steinbrecher's successor, Sean SeLegue, and with enthusiastic support from their respective leadership, responsibility for the task force later shifted from the State Bar to CLA and CJA. Both organizations added additional members to the task force, and Heather Rosing, who served as the first president of CLA, was named a Vice Chair of the task force.
The members of the task force wish to express their gratitude to the State Bar, CLA, and CJA for their support of the task force and demonstrated interest in improving civility in California.
The Need to Readdress Incivility
Thirty years ago, dealing with a case whose very existence it attributed to a "fit of pique between counsel," the First District Court of Appeal addressed this entreaty to California lawyers:
We conclude by reminding members of the Bar that their responsibilities as officers of the court include professional courtesy to the court and to opposing counsel. All too often today we see signs that the practice of law is becoming more like a business and less like a profession. We decry any such change, but the profession itself must chart its own course. The legal profession has already suffered a loss of stature and of public respect. This is more easily understood when the public perspective of the profession is shaped by cases such as this where lawyers await the slightest provocation to turn upon each other. Lawyers and judges should work to improve and enhance the rule of law, not allow a return to the law of the jungle.1
What's happened since? Despite repeated calls for course correction from every corner of the...
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