by Matt Poppe
Orrick, Herrington & Sutcliffe LLP
2016 SCCBA President
Toward the end of this month, the Santa Clara County Bar Association will roll out an update of its vaunted Code of Professionalism – version 3.0 – by posting it on the SCCBA website and mailing a hard copy to all current members and other select recipients.
The new version of the Code is the product of a sustained effort by a working group from our Professionalism Committee, chaired by Alison Buchanan of Hoge Fenton and including Judges Julie Emede, Lori Pegg, Jim Towery, and Brian Walsh of the Santa Clara County Superior Court, SCCBA Past President Clark Stone, and SCCBA CEO Chris Burdick. We are grateful to the working group, as well as to the sponsors who funded the reprinting of the Code: Fenwick & West, Greenfield Draa & Harrington, Hoge Fenton, The Mlnarik Law Group, and Pillsbury Winthrop.
SCCBA’s Code of Professionalism: A Brief History
The SCCBA Code of Professionalism was first published in 1992, and since then has been revised once before in 2007. The Code was the brainchild of then-President Brian Walsh, a current judge and recent Presiding Judge of the Santa Clara County Superior Court. (On Saturday, Judge Walsh was recognized by the State Bar of California as “a pioneer for promoting civility and professionalism” when it awarded him the 2016 Harry B. Sondheim California Professional Responsibility Award, due in large part to his role in creating the Code.)
The Code of Professionalism was a novel idea for a county bar association when it was adopted. Statewide Rules of Professional Conduct approved by the California Supreme Court have existed since 1928, and many other states have adopted the American Bar Association’s Model Rules of Professional Conduct, but Judge Walsh perceived that the existing rules did not go far enough in promoting not just ethics and professionalism but also civility.
In that vein, the Preamble explains that the Code is meant to embody “a level of professionalism that goes well beyond” the requirements of the statewide rules. Duties emphasized in the Preamble include “civility, professional integrity, personal dignity, candor, diligence, respect, courtesy, cooperation, and competence.” The SCCBA viewed the heightened expectations reflected in the Code as already being the norm within our county, but there was a belief that codifying them would help them endure and become even more widely practiced.
The SCCBA’s effort was greatly helped by the wholehearted support of the local bench. Copies of the Code can be found throughout the courthouses in Santa Clara County, and its provisions are widely applied. The Code got additional boosts in 2007, when it was used as the starting point for the State Bar’s Guidelines of Civility and Professionalism; in 2014, when the United States District Court for the Northern District of California adopted Guidelines for Professional Conduct that relied heavily on the SCCBA Code; and in 2015, when it was adopted by the Monterey County Bar Association. The SCCBA welcomes the Code’s adoption by other courts and bar associations, requesting only attribution in return.
Summary of Key Changes From Version 2.0
The new version of the Code includes edits and modifications throughout, but most revolve around three key themes:
1. Advances in technology. The new Code accounts for technological advances in several ways, including encouraging the use of electronic service and email communications, addressing the need to preserve relevant electronically-stored information and produce it in an appropriate format, and regulating the use of social media.
2. Self-represented litigants
. The new Code makes express what previously was present only in spirit by extending an attorney’s duties of courtesy and fair play to apply not only to opposing “counsel” but also to opposing self-represented litigants. These include, for example, the duty to be courteous and fair in settlement negotiations and the duty to grant reasonable requests by an opponent during litigation that do not prejudice the rights of the attorney’s own client.
3. Examples and illustrations. The new Code adds a number of examples designed to illustrate how previously-stated rules and principles should apply in particular situations. For example, the section on discovery now includes explicit provisions stating that attorneys should engage in good faith efforts to resolve discovery disputes amicably before commencing motion practice and should avoid argumentative and speaking objections during depositions.
In addition to distributing and publicizing the new version of the Code toward the end of this month, the SCCBA will further promote its use by conducting training sessions on the Code for local Superior Court judges. Preparations for the training are underway, and we are grateful to court leaders for their interest in working with us on this educational effort.
We encourage you to read your copy (or the online version) of the new Code carefully and commit to implementing it in your practice, in both letter and spirit. If you have suggestions for further improvements to the Code, or for other ways that the SCCBA can advance the cause of professionalism and civility in our county, please don’t hesitate to let us know.
If you have any comments on this President’s Message, or any suggestions for the SCCBA, I encourage you to contact me at email@example.com or (650) 614-7431.