The Consequences of Incivility

In 2014, the California Supreme Court adopted California Rule of Court, Rule 9.7. Known as the civility pledge, Rule 9.7 requires everyone admitted to practice law to take an oath to conduct herself with dignity, courtesy, and integrity at all times. Courts have interpreted this rule as an imposition of duty on all counsel to refrain from tactics that amount to bullying, intimidation, or “…demeaning a member of the profession, especially when based on gender, race, sexual preference, gender identity, or other such characteristics…” (Briganti v. Chow (2019) 42 Cal.App.5th 504.)

In collaboration with the State Bar of California, the California Judges Association and the California Lawyers Association have recently underscored the escalating importance of civility in the profession. They stated, “[c]ivility matters not simply because lawyers are examples to others on how to engage competing ideas and interests. It matters because our system of justice simply cannot function fairly and reliably with systemic incivility.” (“Beyond the Oath: Recommendations for Improving Civility,” Initial Report of the California Civility Task Force, p.6, (September 2021).)

Recent precedent echoes these sentiments and serves as a compelling reminder that the cost of incivility can be grim. In Snoeck v. ExakTime Innovations, Inc. (2023) 96 Cal.App.5th 908, the plaintiff sued his former employer for several claims under California’s Fair Employment and Housing Act (“FEHA”). The plaintiff prevailed at trial and was awarded roughly $130,000 in damages. Plaintiff’s counsel subsequently filed a motion for attorney fees as the prevailing party, demanding a lodestar amount of over $1 million with a multiplier of 1.75. Defense counsel opposed the motion, arguing that the lodestar should be reduced based on several grounds, including excessive billing and counsel’s improper and unprofessional conduct with the court and counsel during and after the trial. This conduct consisted of the use of a derogatory and antagonistic tone with the court and counsel that “verged on the contemptuous,” along with ad hominem attacks and repeated accusations that defense counsel was telling the courts “lies,” committing “fraud,” and engaging in “sleazy” and “cringeworthy” conduct. The court agreed with defense counsel and applied a 40% negative multiplier to account for counsel’s intentional lack of civility to both opposing counsel and the court, which reduced the award of attorney fees by roughly $450,000.

The reduction was upheld on appeal, with the court reminding counsel that attorney reasonableness and skill are traditional touchstones for adjustment of a lodestar. Civility is an aspect of skill and, as a byproduct, justification for a fee reduction. Citing California Rule of Court, rule 9.7 and Karton v. Ari Design & Construction, Inc. (2021) 61 Cal.App.5th 734, the court further reasoned that civility “is an ethical component of professionalism,” that is socially advantageous because it “lowers the costs of dispute resolution.” (Karton v. Ari Design & Construction, supra, 61 Cal.App.5th at p. 747.)

Samuel Johnson wrote: “When once the forms of civility are violated, there remains little hope of return to kindness or decency.” Benjamin Franklin advised: “Be civil to all; serviceable to many; familiar with few; friend to one; enemy to none.” And John F. Kennedy remarked, “Civility is not a sign of weakness.”

So much has been written on civility and the Snoeck decision is a strong reminder that civility is a professional imperative. Attorneys must remain civil even as their clients’ zealous advocates or suffer the clear consequences.

For more information on this issue and how it can affect pending and future trials, please contact Helen Luetto.