Ethics in Brief

Ethics in Brief is designed to present ethical issues that practitioners might well face on a daily basis. It is a service of the Legal Ethics Committee of the San Diego County Bar Association for SDCBA members.

Ethics and Civility

The junior lawyer approached the more experienced colleague.  “Excuse me, could I ask you an ethics question?”

“Of course,” replied the wiser one, “it’s my ethical duty to listen and help you if I can.”

“Okay, here’s my question:  is there an ethical duty of civility?”

“What do you mean by ethical duty?”

“I mean is there a rule that requires that I have to… you know… play nice.”

“Well let’s think about your question for a minute,” said the wiser one.  “Do you think there’s a difference between ethical and legal?”

“I suppose something is legal if the rules permit it,” responded the younger one, “whereas ethical might describe normative behavior - the way people in a certain community act, or the way they expect each other to act.”

“Okay. Can you think of examples where civility might be expressed in a code or a rule?”

“Well, the California Supreme Court amended the attorney’s oath.  When I was admitted last year, I promised to ‘strive to conduct’ myself with ‘dignity, courtesy, and integrity.’”  (Calif. Rule of Court, Rule 9.4, effective May 27, 2014.)  The younger one continued, “But it just doesn’t seem to go far enough.  As long as I strive for courtesy then I’m okay, right? I don’t actually have to achieve it; I just have to want to achieve it.  Other statements about civility are similar.  The San Diego Courts “encourage” me to abide by the Bar Association’s Code of Conduct.  And the Code of Conduct itself says I “should” conduct myself in a certain way. The California Attorney Guidelines of Civility and Professionalism are “voluntary,” and do not have the same force and effect as the California Rules of Professional Conduct or the State Bar Act.”

“I see your point,” responded the older one.  “So you don’t think there’s a legal obligation of civility.”

“Well, I think it would be difficult to enforce, outside of an extreme situation where a court might use its authority to control the proceedings.”

“Let me ask a slightly different question.  Do you think the attorneys you deal with - in general – behave civilly?”

“Yes, in my limited experience, I think attorneys are civil to each other. But I guess my question is, why? If it’s unlikely they will be disciplined for uncivil behavior, why be civil?”

“It sounds like you’ve already answered part of your question already.  If most attorneys behave in a certain way, then we might say that behavior is part of the professional ethic. It’s both descriptive and normative – it tells us what people actually do, and it tells us what people should do,” opined the wiser, turning to walk away. And then she stopped, paused, and turned back around.  “But that’s not your question,” she said. 

“What do you mean?” asked the younger.

“You may be thinking that a rule is the only way to enforce behavior.  Let’s think about what would happen if you weren’t civil.  Let’s start with who would find out about your behavior.”

“My opposing counsel, you know, my adversary.  Assuming that’s the one I was uncivil with.”

“Yes, that’s certain. Who else?”

“Well, I suppose that person would talk to his colleagues, and so the members of his firm might find out about my conduct.”

“Yes, and who else?”

“Well, I suppose it might get back to other members of the legal community.”

“Yes, that’s a safe bet.  San Diego is a small legal community.  There are not many secrets about how people behave, and word travels fast.”

“I guess you would find out.”

“Probably before you returned to the office, but yes, it’s likely I would hear about that type of behavior.”

“I guess pretty much everyone would know.”

“And who might be affected by your behavior, and in what way?”

“Maybe my client?  It could reflect poorly on my firm, and on you and other partners.”

“Yes, and on all of the other members of this firm.”

“You see it’s critical that we maintain the ability to resolve problems for our clients, not create them.  Uncivil behavior is inefficient, and frustrates both our immediate goal and our long term goal – which is to provide service to our clients.  Much of our success is based on our ability to trust our adversaries – to trust other members of our profession and to reach agreement with them on behalf of our clients.  I’m not saying you have to agree with your adversary and be some kind of pushover.  Quite the contrary!  I expect you to vigorously defend our clients and their legal positions. But you must do so in a manner that promotes the integrity, civility, and professionalism of this firm and yourself.” 

“I see. So by being rude or uncourteous, I would be harming my own reputation. And yours.”

“I think you’re on the right track now,” concluded the wise one.

-- Timothy Casey

**No portion of this summary is intended to constitute legal advice. Be sure to perform independent research and analysis. Any views expressed are those of the author only and not of the SDCBA or its Legal Ethics Committee.**