The Legal Profession Is Seriously Lacking In Civility

In the future, will civility even matter or will it be just a vestige of an earlier time and place?

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Sometimes, I think that we who complain about the lack of civility within our ranks are whistling in the wind, dancing in the dark, putting a square peg in a round hole, whatever metaphor fits.

So, I was delighted to read the opinion by Acting Presiding Justice William Bedsworth of California’s Fourth District Court of Appeal, Division Three (aka the “O.C.”) in which the court opined on the lack of civility, reversing the trial court’s decision that had granted a default in a legal malpractice case. Reading a Bedsworth opinion is the classic example of Strunk and White’s maxim to omit needless words. He also writes a monthly and usually hilarious column for the Orange County Bar Association magazine (it’s almost worth joining to read his column). Full disclosure, Justice Bedsworth and I have exchanged fan emails over the past several years and I have no pending matters in his court.

In LaSalle v. Vogel, a recently issued opinion (G055381), Justice Bedsworth, writing for a unanimous panel, expounds at length on the issue that continues to trouble and frustrate both courts and lawyers in a litigation environment today that is more like mixed martial arts than the way we dinosaurs practiced. (Yes, Justice Bedsworth is of a similar vintage to me, so I feel comfortable albeit a bit disrespectful using the term for him, but I’ll use it anyway.)

It’s worth (Bedsworth, excuse the pun) culling out some of the court’s points on the civility crisis. The opinion is a primer for those who never learned civility and a refresher for those who have forgotten the message. Read it.

First, a bit of background: I don’t know what the law is in other states, but here in California, it’s common courtesy to notify the party who has not responded within the required time to contact the other side and advise that if no responsive pleading is filed within (usually 10 days), the party’s default will be taken. California law says that the parties, i.e., attorneys, shall cooperate in bringing the case to trial or other disposition.

The defendant attorney, plagued with various professional and personal issues, failed to file a responsive pleading. Plaintiff’s counsel notified the defendant by email and by a letter sent the afternoon of the day before the deadline. A million-dollar default was entered.

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So, defendant moved to set aside the default, and the trial court denied the motion. The appellate court reversed and Justice Bedsworth had more than a few choice words about civility or lack thereof and about the use of emails and even letters to comport with due process.

The opinion cites a number of previous opinions to show that the lack of civility and professionalism is not a new issue, having come to fruition as early as the 1970s. In fact, the opinion quotes one prior case in which one opposing counsel called another “a diminutive shit.” (I am not making this up.) Memo to self and everyone else: be careful what you write in correspondence that could show up as exhibits to various motions.

Another prior opinion that LaSalle cites had said, “For decades, our profession has given lip service to civility. All we have gotten from it is tired lips. We have reluctantly concluded that lips cannot do the job. Teeth are required.” Those teeth took the form of sanctions.

The LaSalle opinion thinks the problem of lack of civility is not so much a personal failure as a systemic one, that both court and counsel have become inured to this kind of behavior. “They have heard the mantra so unthinkingly repeated that ‘This is a business,’ that they have lost sight of the fact that the practice of law is not a business. It is a profession. And those who practice it carry a concomitantly greater responsibility than businesspeople.” Yay! Hooray! Is there any other business or profession with dual responsibilities, akin to attorneys who are also officers of the court? I don’t think so and I do think that we often forget that we have them.

The LaSalle opinion quotes an earlier opinion that was clear and unequivocal: “The term ‘officer of the court’ with all the assumptions of honor and integrity that append to it must not be allowed to lose its significance.” Sometimes, it’s hard to remember that we have those dual obligations; explaining why you can’t or won’t do something often does not please the client, but so be it.

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We dinosaurs remember a time when the legal profession was like tennis: it adhered to a strict etiquette and was polite and mannerly. Then came John McEnroe and Jimmy Connors and then the term “book of business” came into vogue.

Does email provide due process, i.e., notice reasonably calculated to reach the object of the notice? The court says that email is a lousy medium to notify opposing counsel without prior agreement and written confirmation. We’ve all had the experience of emails wandering out in the netherworld or collected in spam filters. The letter from plaintiff’s counsel was mailed the date before he demanded a response. (I don’t know about your mail delivery, but the less said about mine the better.) Remember, the telephone still works. I have no idea what this court might say about the use of texts to give notice (is anyone doing that?), but I believe that it would have some words about that method of notice as well. (Millennials, take heed.)

As we dinosaurs lumber off the stage, the profession needs to think about how it wants to be viewed, by our clients, the community, and the courts. With all the available technology, will we still be considered officers of the court with all that entails? Will civility even matter or will it be just a vestige of an earlier time and place? Will it even be called “civil practice”? Essential and existential questions.


old lady lawyer elderly woman grandmother grandma laptop computerJill Switzer has been an active member of the State Bar of California for over 40 years. She remembers practicing law in a kinder, gentler time. She’s had a diverse legal career, including stints as a deputy district attorney, a solo practice, and several senior in-house gigs. She now mediates full-time, which gives her the opportunity to see dinosaurs, millennials, and those in-between interact — it’s not always civil. You can reach her by email at oldladylawyer@gmail.com.