Friday, March 2, 2007
Page 7
PERSPECTIVES (Column)
There Are More Questionable Provisions in Proposed Civility Standards
By ROGER M. GRACE
If all goes as California State Bar President Sheldon Sloan hopes, the “California Attorney Standards of Civility and Professionalism,” a draft of which was released last week, will be lauded during public hearings this month; the Board of Governors at its May meeting will order them to be put out for public comment; and they will be adopted by the board in September at the annual convention, right before he leaves office.
The standards would then be in force, according to Sloan’s view, and the State Bar would proceed, according to the current plan, to secure a written pledge of adherence to the standards from the state’s attorneys, anticipating compliance by an overwhelming number (that is, every lawyer who wants to be on the State Bar’s good side).
Well, maybe it will happen that way.
The standards are not apt to draw much attention, and it is doubtful that many will show up to utter comments at the hearings to be held at the State Bar offices (in San Francisco on March 14 at 11 a.m. and Los Angeles on March 28 at 9:30 a.m.). Certainly, there is not much effort being made to make members aware of the content of the standards. There’s a notice on the State Bar website as to their existence, but you can’t click through to view them; you have to ask for a copy to be sent to you. They do not appear in the March issue of the California Bar Journal. If they’re published in April, it will, of course, be after the public hearings.
And, there are probably few on the Board of Governors who would vote against any standards designed to promote “civility and professionalism.” Uttering “nay” could, after all, create the image of being a proponent of uncivil and unprofessional behavior.
The fact is, however, that the proposed standards contain features that would be objectionable to many, if the text of them were examined.
The standards would seemingly be binding on any member signing a pledge to adhere to them. Such an assenter (and few would want to appear to be a “bad” lawyer by not agreeing to be civil and professional) would be agreeing to the following:
•To forfeit the First Amendment right to bad-mouth the legal system if the content of the speech could be deemed unconstructive and not factually supported;
•To desist from causing embarrassment or humiliation (I’m not sure how they’re different) to anyone in the courtroom (even if faithful representation of the client so required); and
•To support the proposition that all lawyers “should” (and by necessary inference the person signing the pledge “must”) devote time (and that’s time, money being no substitute) to pro bono efforts.
I’ve already discussed those aspects of the standards. Here are some additional provisions in the draft, followed by my comments:
•“A lawyer should serve papers on the attorney who is responsible for the matter at his or her principal place of work.”
That contradicts statute. Code of Civil Procedure §1013 says that service by mail is to be effected by sending papers “addressed to the person on whom it is to be served, at the office address as last given by that person on any document filed in the cause and served on the party making service by mail; otherwise at that party’s place of residence.” If opposing counsel’s principal office is in Century City but the lawyer has filed papers in the case listing an Encino address, the proposed rule would have papers sent to Century City, while the statute requires dispatching them to Encino.
•“A lawyer should not direct a deponent to refuse to answer a question without a legal basis for doing so.”
A set of standards on civility and professionalism hardly needs to state matters that are covered by statutes, as interpreted by case law. Here, the dispositive case is Stewart v. Colonial Western Agency, Inc. (2001) 87 Cal.App.4th 1006.
If a standard is to be included, it should at least seek to deter the long-customary practice of lawyers to tell clients not to answer questions that are irrelevant or not calculated to lead to admissible matter. At a hearing on a motion to compel further answers, Los Angeles Superior Court Judge Mary Ann Murphy told an attorney that such conduct “is a huge no-no,” and the Court of Appeal, in a 2001 decision, agreed. It said that the relevant Code of Civil Procedure sections “clearly contemplate that deponents not be prevented by counsel from answering a question unless it pertains to privileged matters or deposing counsel’s conduct has reached a stage where suspension is warranted.”
The appeals court agreed with Los Angeles Superior Court Local Rules, rule 7.12(e)(9) which says: “Counsel should not direct a deponent to refuse to answer questions unless they seek privileged information or are manifestly irrelevant or calculated to harass.” The State Bar’s Attorney Civility Task Force should have copied that provision.
•“If a lawyer inadvertently receives privileged document(s), the lawyer should promptly inform the producing party that the documents were received and return or destroy them.”
Aside from the faulty phraseology—the sending of the privileged information would have been through inadvertence not the receipt of it—a standard should not have been formulated. It’s premature to proclaim what a lawyer should do upon receipt of privileged documents that were unintentionally sent, given that the issue is presently before the California Supreme Court in two cases. (Rico v. Mitsubishi Motors, S123808, has been fully briefed but oral argument has not been set; resolution of another case is awaiting the decision in Rico.)
Even if existing law is applied, there is no authority for the proposition that a lawyer, in coming into possession of privileged documents, must return or destroy them. A 1999 Court of Appeal case from this district says the lawyer receiving the materials should notify opposing counsel and “[t]he parties may then proceed to resolve the situation by agreement or may resort to the court for guidance with the benefit of protective orders and other judicial intervention as may be justified.”
A 1993 decision from the First District, says that once a lawyer receives privileged matter inadvertently put in his hands, “he cannot purge it from his mind.” The opinion adds: “Indeed, his professional obligation demands that he utilize his knowledge about the case on his client’s behalf.”
With the state of the law uncertain, there is no point in devising a standard.
•“Unless specifically permitted or invited by the court, a lawyer should not send a copy of a letter addressed to opposing counsel to the judge, nor should a lawyer send a letter to the judge with a copy to opposing counsel.”
Los Angeles Superior Court Rule 7.12(d)(4) says: “Unless specifically permitted or invited by the Court, letters between counsel should not be sent to judges.” The proposed standard additionally cautions against sending any letter to a judge even if a copy is sent to opposing counsel. That is in conflict with Rule 5-300(B) of the Rules of Professional Conduct which provides:
“A member shall not directly or indirectly communicate with or argue to a judge or judicial officer upon the merits of a contested matter pending before such judge or judicial officer, except: ...(4) In writing with a copy thereof furnished to such other counsel....”
This implies that letters may be sent which do not relate to contested matters (such as a complaint relating to conduct of a courtroom clerk) or which relate to matters which are otherwise not appropriate to set forth on numbered-lined pages that are filed. For example, there are several letters to justices which then-California Supreme Court Justice Frank Newman annexed to a 1980 dissenting opinion. A retired Superior Court judge, William Levit (since deceased), and attorney Richard Chernick (who later became president of the Los Angeles County Bar Assn.) asked, in letter form, that the chief justice and an associate justice recuse themselves, saying, “We felt it appropriate to make this request in the form of this letter. Should it be decided that in order for this request to be considered a formal motion must be filed, please so advise us.”
The proposed standard is stated too broadly.
•“A lawyer should clearly identify all changes made in a document.”
That language appears as an “example” following this standard: “Written materials should be factual and concise, and should not make personal attacks.” The standard appears under the heading, “WRITINGS SUBMITTED TO THE COURT, COUNSEL OR OTHER PARTIES.”
What does a requirement of clearly identifying changes have to do with being factual, concise, and not making personal attacks?
What documents have changes clearly indicated? An amended pleading?
The “example” is comprised of substantially the language used in the Santa Clara County Bar rules. In that bar’s Code of Professionalism, however, the intent is clear; it’s under the section titled “Negotiation of Business Transactions.” It applies to changes in documents, such as leases, the wording of which is being negotiated. Without being put in context, the sentence is meaningless.
A question remains as to the correctness of the assumption that the proposed “Attorney Standards of Civility and Professionalism” could be put into effect by the State Bar Board of Governors without approval by the California Supreme Court.
Business & Professions Code §6076 says:
“With the approval of the Supreme Court, the Board of Governors may formulate and enforce rules of professional conduct for all members of the bar in the State.”
The prevailing assumption appears to be that if the board adopts the “standards,” they would technically be non-binding, so the Supreme Court need not be consulted.
Realistically, pronouncements of the State Bar as to how lawyers are to conduct themselves are not apt to be perceived by lawyers as mere suggestions or useful tips. And that’s clearly not what Sloan intends. MetNews reporter Tina Bay quoted him last week as saying:
“I’m hoping that once we have this in process and we have everybody signing on to it, it becomes kind of the norm that will be appropriately recognized by the judiciary, by the judicial council, and the members of the bench, and in situations where they observe breaches of civility, they will feel comfortable referring to this code and imposing appropriate sanctions for violations.”
It is intended that the standards be perceived as enjoying official status.
Sec. 6076 requires Supreme Court approval of “rules of professional conduct” (lower case). Such rules must be approved whether they are placed in the particular manual labeled “Rules of Professional Conduct” or distributed on loose leaf papers.
It might be argued that §6076 requires Supreme Court approval only where the board seeks to “formulate and enforce” rules. Here, it only wants to “formulate.” However, as the Court of Appeal said in a 2000 opinion, “It has long been recognized that the Legislature occasionally uses the word ‘and’ when it means ‘or’ and that such an error may be rectified by judicial construction.” In a 1977 decision, the Supreme Court pointed out that the word “and” “may sometimes be interpreted as ‘or’ to carry out the legislative intent.”
The U.S. Supreme Court has observed that it is a function of the State Bar governors to act “as professional advisers to those ultimately charged with the regulation of the legal profession,” that is, to the Supreme Court and the Legislature. The drafters of §6076 could hardly have envisioned the governors formulating rules other than for the purpose of the Supreme Court adopting them, thus rendering them enforceable.
The only sensible construction of the statute is that it bars the bar from enacting rules of professional conduct with do not have the Supreme Court’s imprimatur.
Were it otherwise, the State Bar would be spending moneys derived from members’ mandatory dues in order to propagate the personal views of the majority of the members of the Board of Governors, with the illusion created that these personal views, cast in the form of canons, constitute a binding code. The State Bar would further be using the dues moneys to gain vows of compliance, turning the illusion of compulsoriness into something approaching reality. The U.S. Supreme Court’s decision in Keller v. State Bar of California does not contemplate the exacting of dues from members in order to subsidize usurpation by board members of the Supreme Court’s rule-making function.
If the standards, as now phrased in the draft, were submitted to the high court, it might well be assumed that the infirmities pointed out above, and others, would be spotted.
With respect to the most objectionable features of all, discussed here earlier in the week, I would think it probable that the proposed standard entailing curtailment of attorneys’ speech in criticizing the legal system would be rejected in short order owing to its patent unconstitutionality. The call for a prohibition on causing embarrassment or humiliation in a courtroom would surely be capsized in light of the conflict with an attorney’s duty to zealously represent a client. I would hope that the plea for creation of a duty on the part of lawyers to engage in pro bono activities would be spurned either on the merits or because the duties of lawyers, enumerated in Business and Professions Code §6068, is one for the Legislature to determine.
Copyright 2007, Metropolitan News Company