Bus. & Prof. Code section 6067 requires that every new attorney “take an oath to support the Constitution of the United States and the Constitution of the State of California, and faithfully to discharge the duties of any attorney at law to the best of his knowledge and ability.” (sic) Beginning May 23, new California lawyers will be sworn in with an additional section added to their oath: ‘As an officer of the court, I will strive to conduct myself at all times with dignity, courtesy, and integrity.’ No one could argue with this as a statement of aspiration. But could it be the basis of something more…binding? Bus. & Prof. Code section 6103 provides that
A wilful disobedience or violation of an order of the court requiring him to do or forbear an act connected with or in the course of his profession, which he ought in good faith to do or forbear, and any violation of the oath taken by him, or of his duties as such attorney, constitute causes for disbarment or suspension.
The State Bar routinely charged violations of the “oath” part of section 6103 until Baker v. State Bar (1989) 49 Cal.3d 804 where the Court observed that “this section does not define a duty or obligation of an attorney, but provides only that violation of his oath or duties defined elsewhere is a ground for discipline…” Now the oath has been amended to add substantive duties. It is not inconceivable that the State Bar might seek to discipline an attorney for failing to conduct themselves with “dignity, courtesy and integrity.” The State Bar has long sought a replacement for former Bus. & Prof. Code section 6068(f). Prior to the Ninth Circuit’s decision in United States v. Wunsch (9th Cir. 1996) 84 F.3d 1110, that section provided that it was the duty of an attorney “to abstain from all offensive personality.” Wunsch held that “offensive personality” was unconstitutionally vague; the statute was amended to eliminate the term. Attorneys were prosecuted for offensive personality; I prosecuted a lawyer under section 6068(f) for behavior including throwing chairs across a deposition room. The aspirational “strive” language of the new civility oath might seem too subjective, too precatory for prosecution. But similar language describing other attorney duties has not presented an obstacle; section 6068(c) states that it is the duty of an attorney “[t]o counsel or maintain those actions, proceedings, or defenses only as appear to him or her legal or just” but in practice culpablilty has hinged on an objective “reasonable attorney” standard (see Sorensen v. State Bar (1991) 52 Cal.3d 1036, 1043.) “Dignity, courtesy and integrity”might also seem as vague on the positive side as “offensive personality” on the negative. But we have help. The California State Bar has adopted comprehensive Guidelines for Civility and Professionalism. These guidelines have been adopted by several local bar associations and at least one Superior Court. Their prescriptions are detailed:
“Dignity… c. An attorney should not disparage the intelligence, integrity, ethics, morals or behavior of the court or other counsel, parties or participants when those characteristics are not at issue. d. Respecting cultural diversity, an attorney should not disparage another’s personal characteristics. e. An attorney should not make exaggerated, false, or misleading statements to the media while representing a party in a pending matter. f. An attorney should avoid hostile, demeaning or humiliating words. g. An attorney should not create a false or misleading record of events or attribute to an opposing counsel a position not taken. h. An attorney should agree to reasonable requests in the interests of efficiency and economy, including agreeing to a waiver of procedural formalities where appropriate…
There is a haze of nostalgia surrounding the civility movement. It looks to a mythic Golden Age of law practice, a time when we were apparently a happy society of friends united in our passion for justice. This time might have existed but it doesn’t exist anymore. Civility is a fine aspiration but is the codes and oaths and statutes and rules all seem to point in the direction of enforced civility, which smacks of guild rules. It’s been said that dying empires build monuments to themselves. The new civility oath may be our monument.