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Is Civility Dead?

Posted By Mark Shem, Thursday, June 10, 2010
Updated: Friday, April 25, 2014

by Mark Shem, SCCBA 2010 President

[reprinted from the June 8, 2010, Daily Journal, SCCBA Monthly Newsletter]

 

    A few weeks ago, I had the honor of attending the Santa Clara County Bar Association's Family Law Section's reception recognizing some of our most distinguished colleagues who have practiced here in the Valley for 40 years plus. The program included a round table discussion by some of these distinguished practitioners on how the practice of law has changed in the last forty years. Practically every one of them bemoaned the loss of civility in the practice of law.

    Later, I attended the SCCBA's Professionalism Committee's joint meeting with the Presiding Judge, Assistant Presiding Judge and supervising judges of the Santa Clara County Superior Court to discuss civility and professionalism in the courts and during the course of litigation. Every one of the participants had a horror story or two and all of them recent. For example, one judge had to issue a restraining order against each counsel during the trial! Another participant related during a deposition how opposing counsel's questions and behavior even made the court reporter cry. Others still commented on the creeping rudeness of counsel to be consistently late to appearances costing the court and clients' time and money in waiting.

    The late comedian Flip Wilson once said, "The ugly people know who they are."

    Our Bar Association has historically been in the forefront of civility and professionalism in the practice of law. In 1992, SCCBA President and now Superior Court Judge Brian Walsh spear headed an effort that led to the creation of the SCCBA's Code of Professionalism. In the years since, a variety of SCCBA Presidents have undertaken initiatives to keep the Code a meaningful and integral part of law practice in Santa Clara County along with significant cooperation from the Superior Court judges. The SCCBA encourages its members and non members alike to adopt the Code as part of their practice. As the Preamble of the Code charges us "[a]s lawyers, we owe duties of professionalism to our clients, opposing parties and their counsel, the courts and other tribunals, and the public as a whole. Those duties include among other: civility, professional integrity, personal dignity, candor, diligence, respect, courtesy, cooperation, and competence."

    Members who "pledge" to the Code are recognized in our printed and online directory. The Santa Clara County Superior Court Bench adopted the Code in 1992 as a guideline to decorum for all attorneys practicing in the Superior Court of Santa Clara County encouraging them to adhere to the precepts of the Code. In 2009, the California State Bar adopted a code of civility and professionalism that heavily borrowed from our very own Code of Professionalism.

    Yet, despite all these aspirations, rudeness and hostility still exists in and out of the courtroom. While some would argue such conduct is just advocacy, the distinction has unfortunately become blurred. I would like to think that none of our members are guilty of such conduct. But, what are we to do? It is still our profession. If we cannot, as professionals, conduct our activities in a dignified manner, how can we expect others to do the same? And, what message do we send to our neighbors, community, and children? That it is all right to treat people with disdain and contempt? Is it proper to dress down co-workers or even strangers when we do not get our own way? Perhaps we are just too stressed out. 

    This year, our Professionalism Committee, chaired by Deputy District Attorney Rolanda Pierre Dixon, will be discussing ways to encourage civility in the profession to stem any tide of increasing incivility. Encouraging civility is not only the responsibility of the Committee. You too can submit suggestions. To encourage this dialogue, I throw out a few suggestions--some mine and some from others.

    Attach a copy of the SCCBA Code of Professionalism to every filed complaint. Require the litigants and their counsel read the Code and sign a declaration promising to abide by its principles. At a minimum, this proposal will force counsel to glance at the Code. The Bar has many extra copies of the Code of Professionalism and it can be downloaded from www.sccba.com at About SCCBA>>>Association Directory>>>Governing Documents. 

    Reactivate the SCCBA Attorney to Attorney Complaint Process. Some years ago, the SCCBA instituted an informal complaint procedure so lawyers with concerns about opposing counsel could raise these issues with the SCCBA Professionalism Committee. A volunteer member of the Professionalism Committee, an ombudsman, if you will, would discuss the matter with both parties in hopes of reaching an informal resolution, or at least educating the offending attorney. The ombudsman was not a fact finder and did not render any opinions regarding the dispute. Rather, this person helped counsel work out their disagreements. 

    Institute a Civility Workshop in lieu of court sanctions. If the court deems counsel is breaching the Code of Professionalism, the court can refer counsel to an SCCBA sponsored civility MCLE program in lieu of monetary sanctions. The program can review the Code of Professionalism and ethical requirements. While some may argue the program may develop something akin to a "Scarlet Letter A", perhaps the core problem is some of us have forgotten what our mothers told us all those years ago.

    For incivility that occurs during the course of discovery, have in place an "on call" discovery referee available to handle those disputes before they erupt into larger problems.

    Civility Motions. Raise the issue with the court if the conflict arises over litigation and litigation tactics. On one hand, the court cannot act unless a motion is before it. After all, our Bench adopted the Code of Professionalism and expects all parties to adhere to it during the pendency of the case. On the other hand, judges are loath to get involved in perceived "whiney" disputes. 

    These suggestions are not exhaustive or the answer to the issue of civility. If you have any suggestions, pass them along to SCCBA Executive Director Chris Burdick at chrisb@sccba.com , and she will pass them along to the Professionalism Committee. Let us begin anew a dialogue so that at the next 40 year celebration, we are not rehashing the same complaints about lack of civility in the profession. It is our profession after all. I look forward to our dialogue.

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