Court of Appeal Test Drives New Candor Rule

 

 

The First District Court of Appeal, Div. 2, issued a Halloween-eve decision that surely qualifies as some lawyers’ horror story. The decision Davis v. TWC Dealership Group, Inc., case no. A155030, filed 10/30/19, involved arbitration clauses in employment contracts, but it was published to “also affirm—and remind the profession of—the importance of candor toward the court.”

The underlying thicket is a series of employment agreements signed by the Plaintiffs when they began their ultimately unhappy relationship with their employer.  Those agreements purported to bind Plaintiffs to arbitrate their claims in language the Court described as a “paragon of prolixity,” whose substance is “opaque,” and which has sentences that are “complex, filled with statutory references, and legal jargon.” But the Court of Appeal had some help in reaching its description because the same paragraph had been the subject of a California Supreme Court opinion OTO, L.L.C.v. Kho (2019) 8Cal.5th 111, 128) (Kho).  In fact, the same law firm had argued the Kho case before the Supreme Court. The TWC Court noted no complete version of any of the three fee agreements appeared in the record, and that extensive use of ellipsis was made in the briefing to omit large parts of the contracts.

The Kho decision was filed shortly after the close of briefing in the TWC case but it was not brought to the appellate court’s attention.  In its order, the Court asked the parties to address the impact of Kho but the associate attorney dispatched to argue the case was unprepared.  Neither of the attorneys who signed briefs appeared, having left the firm.

The Court of Appeal found the failure to inform the Court of the Kho decision was an “obvious” violation of Rule of Professional Conduct 3.3(a)(2), given that the same law firm had appeared in Kho:

A lawyer shall not …fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel. or knowingly misquote to a tribunal the language of a book, statute, decision or other authority. . . .’ ” ..”

This rule is new in California.  Prior Rule of Professional Conduct 5-200 contained a similar prohibition against “intentionally” misquoting to a tribunal the language of a book, statute, or decision but no positive duty to disclose known adverse authority. It also contained the same general prohibition against using means inconsistent with truth or seeking to mislead a judicial officer with ” by an artifice or false statement of fact or law” contained in Business & Professions Code section 6068(d).  The origin of the new rule is Model Rule 3.3.

“Known” is a defined term in the new Rules; Rule 1.0.1(f): “Knowingly,”“known,” or “knows” means actual knowledge of the fact in question. A person’s knowledge may be inferred from circumstances.”

Since the same law firm argued Kho and the Court of Appeal specifically asked counsel to address Kho (as well as counsel’s failure to bring Kho to the court’s attention) finding knowledge isn’t much of a stretch.  One feels for the firm associate who appeared at the oral argument.

The Court of Appeal finding of lack of candor wasn’t necessary to decide TWC; the law of unconscionability, exemplified by Kho, supplied the necessary rule of decision.  The Court of Appeal also did not refer the matter to the Office of Chief Trial Counsel (OCTC), despite the “obvious” rule violation.  No sanction was sought or imposed and the conduct does not otherwise meet the statutory reporting requirements of Bus. & Prof. Code section 6086.7.  OCTC will surely see this decision and has the power to open its own investigation.

Whether or not discipline results, the Court of Appeal has given us a significant test drive of one of the new rules, meant to send a message that the duty of candor has some new teeth in California.

Daughter of “Fortune”: Disbarment Recommendation Reduced to 60 Days Actual

A previous post “Reversal of Fortune” discussed the Review Department’s unpublished decision in the Bradshaw matter that reversed a Hearing Judge’s recommendation of disbarment and dismissed the matter, finding no culpability.

Now in a similar case, the Review Department has reversed another Hearing Judge’s disbarment recommendation and recommended discipline to include 60 days actual suspension, now in a published decision (In the Matter of Lingwood, filed August 27, 2019.) The decision is based on an admission and finding that the respondent violated former Rule of Professional Conduct 3-300 (now Rule 1.8.1.)

Both Bradshaw and Lingwood are cases where a lawyer was serving as trustee of a trust.  Both cases involved allegations that the lawyer engaged in self-dealing and misappropriated funds from the trust, acts of moral turpitude, in violation of Business and Professions Code section 6106.  Both resulted in culpability findings on this issue that were ultimately reversed, based on part of the specfic authorizations in the trust instruments that authorized the trustee to engage in “self dealing” consistent with the trustee’s fiduciary responsibility.  The clause in Bradshaw’s case provided

As long as the Trustee does not act in bad faith or in disregard of the purposes of the Trust, it is not a breach of the Trust for the Trustee to take any of the following actions: ¶ Employ the Trustee, a relative of the Trustee, or a business in which the Trustee has an interest, to perform needed services for the Trust or any business in which the Trust has an interest and pay compensation not exceeding fair market value . . . .

What can explain the blind spot that has now led to two significant reversals?   Part of the answer may lie with the Review Department’s decision in In the Matter of  Schooler (Review Dept. 2016) 5 Cal. State Bar Ct. Rptr.__, 2016 WL 7176690 (filed December 6, 2017.)  Schooler involved a lawyer acting as trustee and conservator of a family trust who committed multiple breaches of fiduciary duty and made misrepresentations to the Court.  Schooler was disbarred after Office of Chief Trial Counsel (OCTC) appealed a hearing recommendation of two years actual suspension.

Schooler was, rightly, regarded as an important opinion.  Published opinions in State Bar Court are meant to provide guidance to the litigants. Unfortunately, Schooler appears to have furnished a convenient prism distorting the view of subsequent cases involving attorney as trustee misconduct.  Precedent is a tricky thing in an environment where the correct decision involves a “on a balanced consideration of the unique factors in each case.”  In the Matter of Van Sickle (Review Dept. 2006) 4 Cal. State Bar Ct. Rptr. 980, 2006 WL 2465633 (pet. review denied.)

Van Sickle is an echo of the same phenomenon.  The opinion on remand came about because OCTC appealed the first Van Sickle decision to the California Supreme Court because it ran afoul of the bright and shiny toy that OCTC thought it had been given by the Supreme Court, In Re Silverton (2005) 36 Cal.4th 81, which was interpreted as making the discipline Standards as binding law.  The Supreme Court sent Van Sickle back for reconsideration in light of Silverton, and the Review Department met the serve with an well researched opinion demonstrating why Silverton was really just a re-cap of existing law and not the revolutionary decision as hailed. But for awhile Silverton was everywhere being cited as authority that the Standards just had to be complied with.

Guidance is especially hard to come by in the murky land of moral turpitude.  The Lingwood Review Department finds it necessary to remind us that “mere negligence in making a representation does not constitute a violation of section 6106″citing In the Matter of Respondent K (Review Dept. 1993) 2 Cal. State Bar Ct. Rptr. 335, 353), in concluding that Lingwood’s statements were made with no intent to deceive.  it is a welcome taste of common sense in the face of the elastic concept of “moral turpitude through gross negligence.” (See In Matter of Yee (Review Dept. 2014) 5 Cal. State Bar Ct. Rptr. 330, 2014 WL 3748590 (Remke, PJ, dissenting.)

You might argue that the system worked as it should.  Until you consider the costs to the Respondents for fighing it out. Ms. Lingwood, found culpable on the count she admitted to, will pay the State Bar’s costs despite having much of case thrown out.

Reversal of Fortune: Disbarment Becomes Dismissal on Appeal

A recent unpublished but public opinion from the State Bar Court Review Department tells a story unique in most observer’s experience:  a disbarment recommendation from the Hearing Department is completely overturned on appeal and the case is dismissed.

The case is In the Matter of Bradshaw, State Bar Court case no. 16-O-15588, opinion filed July 30, 2019.

Bradshaw created testimentary documents, including a revocable living trust, for his client Ora Gosney in 2006.  After she fell and became incapacitated in August 2013, he became her conservator and spent money from her trust for repairs on her house,  contracting the work to a company he had played some role in setting up.  After he was removed as conservator by the San Francisco Superior Court, the State Bar Office of Chief Trial Counsel brought discipline charges alleging misrepresentations, a scheme to defraud the trust and misappropriation of money from the trust, all acts of moral turpitude in violation of Business and Professions Code 6106 the amounts paid for the repair work done on Ms. Gosney’s home.  Mr. Bradshaw’s State Bar member page was tagged with a “Consumer Alert” badge when the discipline charges were filed.  After a three week trial, the hearing judge issued her deciscion recommending disbarment and placing Bradshaw in involuntary inactive enrollment on August 30, 2018.

The Review Department reversed, finding that the evidnce for moral turpitude was not clear and convincing, the burden of proof in a disciplinary proceeding.  It noted that Ms. Gosney wanted to keep living at home, that the work was necessary and priced at fair market value.  Moreover, there was no evidence that Bradshaw, while involved in its creation, had an ownership interest, as found by the Hearing Judge.

The dismissal means that Bradshaw will be able to recover some of his out of pocket costs for the long trial and appeal but not his attorney fees.  There will be no compensation for being branded as a consumer threat and for the year of ineligibility to practice law.

The Superior Court decision to remove Bradshaw as conservator undoubtedly loomed large in the decision to prosecute this case and the Hearing Judge’s decision as well.  But civil and criminal courts do get it wrong and cutting through the deference given those decisions in the discipline system takes hard work and the skill of an experienced discipline defense lawyer.  Bradshaw luckily had one and apparently the resources to keep fighting after a bruising trial.  Yes, the system did work as it was supposed to but you can’t help wondering if this trip was really necessary.

 

Stranger Things: Will California Legalize Nonlawyer Ownership of Law Firms?

On July 11, 2019, the State Bar Board of Trustees voted to put out for public comment the recommendations of the Task Force on Access Through Innovation of Legal Services (ATILS).  ATILS was formed in July 2018 following the Board’s consideration of a report from Prof. William Henderson of the University of Indiana Maurer School of Law.

Prof. Henderson is well known for the groundbreaking scholarly work on the dynamics of the legal marketplace and the effect those dynamics have on the legal profession.  The Board commissioned Prof. Henderson to report on those changing dynamics.  His Legal Market Landscape Report concluded that

There is widespread consensus among lawyers, judges, legal academics, regulators and sophisticated clients that the legal market is in a period of significant tumult.  Further, there is also agreement that this tumult may be the early stages of a fundamental transformation. Yet, what is new and disconcerting for many is that these changes are not being driven by licensed lawyers or the organized bar. Rather, the causes are powerful external market forces that cannot be easily categorized using our familiar and well-established frameworks. At a minimum, our frameworks need updating.

Now, after a year of study, ATILS has produced an outline of how those frameworks could be updated.  The recommendations, while still tentative, are nothing less than revolutionary.  They include creating new exceptions that authorize the practice of law by nonlawyers in specified areas, allowing certified nonlawyers to provide legal services through technology (e.g. Legal Zoom), and changing the rules that prohibit nonlawyers from having ownership interest in entities providing legal services, principally California Rule of Professional Conduct 5.4 “Financial and Similar Arrangements with Nonlawyers.”

There is a lot to unpack in the ATILS report. It deserves close attention from every lawyer who represents private clients, and especially from lawyers who represent real people as clients, what Prof. Henderson calls the PeopleLaw sector of the profession. These changes could fundamentally change your professional life.

The proposed changes to Rule 5.4 are perhaps the most revolutionary. The current Rule, only adopted November 1, 2018, but reflecting legal principles long held, says

(a) A lawyer or law firm shall not share legal fees directly or indirectly with a nonlawyer or with an organization that is not authorized to practice law, … [limited exceptions];

(b) A lawyer shall not form a partnership or other organization with a nonlawyer if any of the activities of the partnership or other organization consist of the practice of law.

(c) A lawyer shall not permit a person who recommends, employs, or pays the lawyer to render legal services for another to direct or regulate the lawyer’s independent professional judgment or interfere with the lawyer-client relationship in rendering legal services.

(d) A  lawyer  shall  not  practice  with  or  in  the  form  of  a  professional  corporation  or other organization authorized to practice law for a profit if: (1) a nonlawyer owns any interest in it, except that a fiduciary representative of  a  lawyer’s  estate  may  hold  the  lawyer’s  stock  or  other  interest  for  a reasonable time during administration; (2) a  nonlawyer  is  a  director  or  officer  of  the  corporation  or  occupies  a position of similar responsibility in any other form of organization; or (3) a  nonlawyer  has  the  right  or  authority  to  direct  or  control  the  lawyer’s independent professional judgment.

(e) The Board of Trustees of the State Bar shall formulate and adopt Minimum Standards for Lawyer Referral Services, which, as from time to time amended, shall be binding on lawyers.    A lawyer shall not accept a referral from, or otherwise participate in, a lawyer referral service unless it complies with such Minimum Standards for Lawyer Referral Services.

(f) A  lawyer  shall  not  practice  with  or  in  the  form  of  a  nonprofit  legal  aid,  mutual benefit or advocacy group if the nonprofit organization allows any third person to interfere with the lawyer’s independent professional judgment, or with the lawyer-client  relationship,  or  allows  or  aids  any  person  to  practice  law  in  violation  of these rules or the State Bar Act

Rule 5.4 has been described as a rule necessary to preserve lawyer control over the provision of legal services because nonlawyers, not being fiduciaries, might not provide those services consistent with the best interest of the clients but in the best interest of the entity providing those services. Put another way, in the ever-present tension between law practice as profession and law practice as business, non-attorney ownership or control will tilt things too much to the business side.

With that in mind, ATILS proposes two alternative ways to change Rule 5.4.

Alternative 1 would continue to impose a general prohibition against forming a partnership with, or sharing a legal fee with, a nonlawyer. “The Alternative 1 amendments would: (1) expand the existing exception for fee sharing with a nonlawyer that allows a lawyer to pay a court-awarded legal fee to a nonprofit organization that employed, retained, recommended, or facilitated employment of the lawyer in the matter; and (2) add a new exception that a lawyer may be a part of  a  firm in which a nonlawyer holds a financial interest, provided that the lawyer or law firm complies with certain requirements including among other requirements, that: the firm’s sole purpose is providing legal services to clients; the nonlawyers provide services that assist the lawyer or law firm in providing legal services to clients; and the nonlawyers have no power to direct or control the professional judgment of a lawyer.”

Alternative 2 reflects a more radical revision. “Alternative 2…would largely eliminate the longstanding general prohibition and substitute a permissive rule broadly permitting fee sharing with a nonlawyer provided that the lawyer or law firm complies with requirements intended to ensure that a client provides informed written consent to the lawyer’s fee sharing arrangement with a nonlawyer.”

The bedrock of these proposed changes is the idea that the current regulation scheme is preventing the efficient delivery of legal services and access to justice. “To the extent these rules promote consumer protection, they do so only for the minority of citizens who can afford legal services. Modifying the ethics rules to facilitate greater collaboration across law and other disciplines will (1) drive down costs; (2) improve access; (3) increase predictability and transparency of legal services; (4) aid the growth of new businesses; and (5) elevate the reputation of the legal profession.” Henderson Legal Market Landscape Report, at page 7.

These changes, along with the others recommended by ATILS, would erode the monopoly over the provision of legal services currently held by lawyers.  Of course, any change in the Rules of Professional Conduct must be approved by the California Supreme Court (Bus. & Prof. Code § 6077).  There will be winners and losers if these ideas are enacted, and some of those losers are going to be lawyers.

The independence of the legal profession has almost become a religious principle to some lawyers.  Yet, the marketplace changes described by Prof. Henderson are very real.  Rule 5.4, and its equivalent in other states, is being violated every day by hundreds, if not thousands, of legal services providers.

Avvo Legal Services prompted a backlash that resulted in a number of legal ethics opinions (including San Diego County Bar Association formal ethics opinion 2019-2).  The new owner of Avvo Legal Services pulled the plug on the business, but a similar model exists for many others.  And there are many other legal services providers where non-lawyer participation and control is hidden.

Will California allow legalize non-lawyer ownership of legal services providers?  We don’t know, but stranger things have happened.

 

Price of Domestic Violence Goes Up in State Bar Court

A large part of the work of the California discipline system is dealing with attorneys who are convicted of crimes. This part hasn’t always gotten a lot of attention, something that may have changed with the highly publicized retroactive fingerprinting of attorneys by the State Bar of California. Perhaps that is because it doesn’t deal with the application of the Rules of Professional Conduct, which are the focus of many of the people in the ethics world. Committing crimes is so self-evidently wrong that it may seem uninteresting. Of course, it is extremely interesting to those directly involved. And should be to others because the criminal conviction cases can raise issues relevant to the wider society outside the confines of law practice.

A recent unpublished decision of the Review Department of the State Bar deals with one of the issues: domestic violence.  In the Matter of Khaliq involves an attorney who was convicted of violating Penal Code section 273.5 after a plea.  That section makes wilful infliction of corporeal injury on a spouse, co-cohabitant or other defined persons that results in a traumatic condition a “wobbler” crime, one that can be charged either as a felony or misdemeanor.

One of the most interesting things about Khaliq is that the hearing judge’s  recommendation was disbarment, based on her findings that the surrounding circumstances involved moral turpitude. Discipline Standard 2.15(b) states that “[d]isbarment is the presumed sanction for final conviction of a felony in which the facts and circumstances surrounding the offense involve moral turpitude, unless the most compelling mitigating circumstance clearly predominate, in which case actual suspension of at least two years is appropriate.”  Discipline Standard  reThe Standards, despite their name, being merely guidelines, don’t control the result; the Supreme Court has said that appropriate discipline in a given case depends on “on a balanced consideration of the unique factors in each case.” In the Matter of Van Sickle (Review Dept. 2006) 4 Cal. State Bar Ct. Rptr . 980, 2006, WL 2465633.  That means that comparable discipline case law must be looked at as well.

The problem is that there is very little comparable discipline case law that comes anywhere close to imposing disbarment for an act of domestic violence.

The harshest reported discipline imposed has been In the Matter of Otto (1989) 48 Cal.3d 970 where State Bar recommendation of six months actual suspension was adopted by the Supreme Court in a one-page opinion.  Otto had been found guilty of two felonies, violations of section 273.5 and Penal Code section 245, both reduced to misdemeanors.  The State Bar found no moral turpitude, but we don’t know why, as the Otto decision contains no facts.   Neither side appealed, and the Court was reviewing the case under its plenary power to review all discipline matters.

 

Another case of the same relative vintage, In Re Hickey (1990) 50 Cal.3d 571 involved a nolo contendere plea to a concealed weapon charge and an improper withdrawal in a client matter.  Included in the surrounding facts and circumstances were, in the Supreme Court’s words, “evidence that the attorney had repeatedly engaged in acts of physical violence toward his wife and others and that his conduct arose from repeated abuse of alcohol, discipline was warranted….from which he had recovered, and was related to marital difficulties that had been resolved.”  Although Hickey was charged with misdemeanor violations of Penal Code sections 245, subdivision (a)(1) (assault with a deadly weapon) and 273.5 (spouse abuse) “the criminal proceedings against petitioner were suspended pursuant to Penal Code section 1000.6, for the purpose of granting diversion, and petitioner was referred to the Anger Awareness Program.”  Hickey, at 576. The recommended discipline, including 30 days of actual suspension, was adopted and imposed.

Looking Hickey with contemporary eyes, the level of discipline seems astonishingly low, especially given the evidence of chronic violence toward his wife, notwithstanding that it was connected with an alcohol abuse problem that was ostensibly mitigated.  The Review Department in Khaliq noted:

We also acknowledge that prior discipline in domestic violence cases often has not reflected the changes in society and the current recognition of the seriousness of domestic violence. Many earlier cases resolved such matters with low levels of discipline, including minimal or no suspension. We agree with the hearing judge that it is important to reevaluate the appropriate discipline by considering current societal values and changing mores.

Khaliq, slip opinion at 17.

Yet, disbarment was a bridge too far for the Review Department majority.  It noted that only two California discipline cases have imposed disbarment for acts of domestic violence, both involving homicide.  It noted that Khaliq’s felony conviction was reduced to a misdemeanor at the time of sentencing;  Standard 2.16(c) says that disbarment or actual suspension is the presumed sanction for final conviction of a misdemeanor involving moral turpitude.  It agreed with the hearing judge that moral turpitude was involved in the surrounding circumstances,  including a “prank” where respondent sent text messages to his former girlfriend purportedly from a potential employer, and a lie told about a domestic violence incident that occurred 12 years earlier in undergraduate school.  As part of its balanced consideration of all relevant factors, it gave less weight to aggravating factors and more weight to mitigating factors, including character witness testimony from Khaliq’s family.  The court looked at discipline decisions from other states, filling in the gaps in California case law.  It ultimately recommended two years of actual suspension with probation and the requirement that the respondent prove his rehabilitation, fitness to practice and current learning and ability in the law in a petition under Standard 1.2.(c)(1) before resuming active status.  Judge Purcell, dissenting, would have imposed three years of actual suspension.   Not disbarment but not a cake walk, especially given the Office of Chief Trial Counsel’s zeal in opposing Standard 1.2(c)(i) petitions.

Khaliq is not citable as precedent, but in the small world of State Bar Court jurisprudence where everybody, including hearing judges, read Review Department decisions with great interest, it will have an impact.  Lawyers who commit criminal acts of domestic violence will find tougher sledding in State Bar Court.

 

 

 

A Judicial Cri De Coeur On Civility

The tone of most judicial opinions runs a little cold. Decisions crafted with logic and authority that read as if they might have been written by Mr. Spock or some futuristic AI. A recent decision of the Fourth District Court of Appeal moves against the trend, blending its logic and authority with a passionate viewpoint that laments the lost civility of the profession. At the same time, the decision cites law that hints at potential ways to enforce civility rules that heretofore have had only the force of a bully pulpit.

The setup in Lasalle v. Vogel, case no. G055381, filed June 11, 2019 (Justice Bedsworth, writing for the Court, with Justices Moore and Ikola concurring) is a legal malpractice action filed by a client ascribing the dismissal of her action for failure to provide discovery to her lawyer’s failure to communicate. The defendant lawyer was served with the summons and complaint. Thirty-six days later, after no response was filed in the court, the plaintiff’s lawyer sent the defendant lawyer a letter and an email, informing the defendant lawyer that her default would be entered if no response was filed the very next day, a Friday. No response was filed. On Monday a request for entry of default was filed at 4:05 pm and emailed to the defendant. She responded at 5:22 pm, with a request for an extension of time to respond.

By then, it was too late. The defendant lawyer filed a motion for relief from the default. It was opposed, with an opposition that took the opportunity to slime the defendant lawyer with a request for judicial notice (granted) of her discipline in two unrelated matters. Based on the default, a $1 million judgment was entered about a year later.

While the Court expressed sympathy for court and plaintiff and bemoaned the dilatory tactics “we have all encountered [but] we cannot see this as such a situation, and cannot countenance the way this default was taken, so we reverse the judgment.” (Slip opinion at page 4.)

In the pages that follow, the Court cites a long history of judicial opinions bemoaning the decline of civility in litigation practice and states that the Court could have cited many others from other jurisdictions “were we writing a compendium rather than an opinion”. They summarize our current state of affairs from quoting it’s own opinion and call to action in Kim v. Westmoore Partners, Inc. (2011) 201 Cal.App.4th267, 293:

Our profession is rife with cynicism, awash in incivility. Lawyers and judges of our generation spend a great deal of time lamenting the loss of a golden age when lawyers treated each other with respect and courtesy.  It’s time to stop talking about the problem and act on it.  For decades, our profession has given lip service to civility. All we have gotten from it is tired lips.  We have reluctantly concluded lips cannot do the job; teeth are required.  In this case, those teeth will take the form of sanctions. We sanctioned counsel $10,000.

And, aside from the court’s power to sanction, what sort of teeth might exist?

The Court notes that “it’s gotten so bad the California State Bar amended the oath new attorneys take to add a civility requirement.  Since 2014, new attorneys have been required to vow to treat opposing counsel with dignity, courtesy, and integrity. That was not done here. Dignity, courtesy, and integrity were conspicuously lacking.” (Emphasis in the original.)

Because this is a civil action, not a discipline decision, there is no citation to Business and Professions Code section 6103:

A willful 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.

Emphasis added.

The Court also cites Code of Civil Procedure section 583.130:

So to the extent it was possible for a party seeking a default with unseemly haste to commit an ethical breach without creating a legal issue, that distinction was erased by section 583.130. The ethical obligation to warn opposing counsel of an intent to take a default is now reinforced by a statutory policy that all parties “cooperate in bringing the action to trial or other disposition.”  (§583.130.)  Quiet speed and unreasonable deadlines do not qualify as “cooperation” and cannot be accepted by the courts.

Business and Professions Code section 6068(a) provides that “it is the duty of an attorney to do all of the following: (a) To support the Constitution and laws of the United States and of this state.” The State Bar Court has found that “the Supreme Court interprets section 6068(a) as a conduit by which attorneys may be charged and disciplined for violations of other specific laws which are not otherwise made disciplinable under the State Bar Act.” In the Matter of Lilley (Review Dept. 1991) 1 Cal. State Bar Ct. Rptr. 476, 1991 WL 70703.

California law once provided that it was the duty of an attorney to avoid “offensive personality”, former Business and Professions Code section 6068(f). That section was found to be unconstitutionally vague by the Ninth Circuit (United States v. Wunsch, 84 F.3d 1110, 1120 (9th Cir. 1996).) That section had been used to discipline attorneys for extreme violations of the civility rules. Since Wunsch, the conventional wisdom has been that civility codes were well-intentioned but unenforceable through the discipline process.

Lasalle suggests that there are two possible paths to enforce some civility codes: as violations of section 6103 (as oath violations for attorneys admitted after 2014) or section 6068(a) violations based on failure to comply with section 583.130.

It is also worth noting new California Rule of Professional Conduct 8.4(d) states that professional misconduct includes engaging “in conduct that is prejudicial to the administration of justice.” We have no case law yet interpreting just how broad this rule’s reach might be.

Is discipline for lack of civility consistent with the public protection mission of the State Bar? The Lasalle Court would probably say yes: “We cannot accept [lawyer incivility] because it is contrary to legislative policy and because it is destructive of the legal system and the people who work within it. Allowing it to flourish has been counterproductive and corrosive” citing increased litigation [Slip opinion at page 10.]

Is discipline for lack of civility consistent with the public protection priorities of the State Bar? That is a question no one can yet answer.