Thursday, March 29, 2007
LACBA Ethics Panel Urges State Bar to Junk Civility Standards
By TINA BAY, Staff Writer
The State Bar’s Attorney Civility Task Force should not issue its proposed “standards of civility and professionalism” at all, a spokesperson for a Los Angeles County Bar Association committee told the task force yesterday.
Speaking on behalf of LACBA’s Professional Responsibility and Ethics Committee at a public hearing yesterday in downtown Los Angeles, local malpractice defense attorney JoAnne Earls Robbins said the standards “will be inevitably be considered standards that will lead to disciplinary sanctions.”
Robbins, a former State Bar Court hearing judge and State Bar prosecutor, explained that the “should” language used in the standards—for example, “A lawyer should not engage in offensive conduct or otherwise disparage the intelligence, integrity, ethics, morals or behavior of other counsel…”—would be confusing to the average practitioner.
Attorneys would understand the standards to be mandatory since they would carry the “imprimatur” of a mandatory integrated bar with disciplinary authority, she said. Moreover, she added, existing requirements imposed on attorneys by the Business and Professions Code and Rules of Professional Conduct are already so difficult and confusing that an additional “list of other things that an attorney is required to be” would be taken as grounds for discipline.
While the “intention” and “principle” undergirding civility standards are “excellent,” Robbins said, the State Bar cannot “regulate courtesy” in the same way that lawmakers cannot “legislate morals.” Instead of standards, she said, the State Bar should institute a “far-reaching program” involving law schools, local bar associations and bench-bar coalitions that would educate young lawyers regarding what is expected of them by their peers as well as bench officers.
This will be “difficult” but “not impossible,” she said, adding that if the State Bar nonetheless chooses to adopt civility standards, it should be “extremely clear” that they will not form the basis for any disciplinary action.
In addition to Robbins, three others addressed the task force at yesterday’s hearing, which was held to garner feedback on the task force’s draft civility standards.
Former Board of Governors member David M. Marcus, agreeing with Robbins, said the proposed standards could be construed and even imposed as ethical rules with lawyers are required to comply.
The document should be reworded so that the language is clearly “aspirational,” the veteran litigator remarked. Questioning whether standards issued by the State Bar would be the best way to remedy the problem of declining civility among lawyers, Marcus noted that the concepts addressed by the draft standards—such as the priority of discovery or granting extensions of time to other parties—are generally “taught through the culture of being a lawyer.”
By contrast, Santa Monica attorney Carole H. Aragon and local attorney and journalist Lisa Miller told the task force they supported the draft civility standards and wanted them to be even more expansive than they currently are.
Aragon, who teaches at Southwestern Law School, suggested the task force include a section governing written communications, specifically emails.
Miller said the standards should not simply tell attorneys to “play nice,” but provide “teeth” for enforcement.
In light of comments received yesterday and on March 14 at a similar hearing in San Francisco—where only two speakers showed up—the task force plans to submit a revised draft of the standards to the Board Committee on Member Oversight in May, for authorization of formal public comment.
At a meeting immediately following the public hearing, the task force began discussing possible revisions to its proposed standards, agreeing among other things to
more explicitly state in the introduction that the State Bar cannot use the standards as a basis for disciplinary charges.
Task force members also discussed whether section 2 of the standards, which provide that a lawyer “should contribute pro bono time to community activities and to individuals who cannot afford legal services” should be omitted or at least softened to read “is encouraged to” rather than “should.”
Recognizing the pro bono requirement was a “hot button” issue for many in the legal community, task force members could not reach a consensus and left the question for a later meeting.
The task force, chaired by Los Angeles Deputy Public Defender Marguerite Downing, was appointed last November by State Bar President Sheldon Sloan, who hopes its efforts will result in California’s first standardized civility program on a statewide level.
The goal of the task force, Sloan said in a previous MetNews interview, is to get attorneys and judges to sign a pledge to abide by the final version of the standards, and to see the standards become the “norm” such that judges would feel comfortable imposing sanctions for their violation.
Copyright 2007, Metropolitan News Company