Civility in our practice is a topic that is very important to me. It is one of the driving factors for me creating and continuing to contribute to this blog. So, imagine my glee and inherent curiosity when I spotted the following headline off a legal news website:

“Calif. Bar Trustees OK Civility Rules, Wider Conflict Disclosures”

Apparently, the California Bar has introduced, for possible indoctrination as a rule, additional civility requirements for its attorneys. According to an article on the California Lawyers Association’s website, the California State Bar was seeking public comment about a proposal for a new rule that would make incivility subject to disciplinary action (https://calawyers.org/litigation/state-bar-seeks-public-comment-on-proposed-civility-changes-to-rules-of-professional-conduct-and-rules-of-court/ last accessed July 25, 2023). My eyes perked up. Finally, an acknowledgment from a state bar that something has to be done about the way that practicing attorneys treat one another professionally. Here is the way they proposed defining incivility:

…significantly unprofessional conduct that is abusive or harassing and determined on the basis of the facts and circumstances surrounding the conduct.

                As I geared up to get excited about what California was doing, I came across a contrary opinion. How can anyone think that this is a bad idea? But it is really important to think of all sides. In the article published by the California Lawyers Association, legitimate concerns were raised about these new incivility rules being used as a sword against those minority attorneys by the white majority practicing attorneys. Being a black woman practicing in this State, that resonated with me all too well. I cannot count how many times white men have accused me of being “too aggressive” just for speaking. Too many times I am reminded that I really shouldn’t be at the table and that I should feel grateful for even being allowed to speak. So, the idea that some asshole who thinks I should be barefoot and pregnant would chomp at the bit to report me for “incivility” just because I objected to his stupid argument in court seemed not so out of the realm of possibility. Unfortunately, already, there is the statistic that (at least in North Carolina) that attorneys of color or more likely to be reprimanded by the Bar and when they are, they are more likely to be disbarred as opposed to being let off with a consequence that allows them to keep their license.

              But, if we risk this possible unintended consequence, would adding a civility rule to our Rules of Professional Conduct really be all that bad? I have previously written about really poor attorney behavior. But it begs the question, even if we DID have a rule of professional conduct regarding civility, would anyone utilize it? As it is, I think most of us attorneys don’t report unprofessional conduct nearly enough. And I don’t think I am alone in that opinion. Too many of us don’t report for, it seems, a vast number of reasons (or excuses). One of those is the fear of people turning around and reporting on US for some unwarranted reason. It’s also like our profession operates as the prisoner on the block that just wants to shank the snitch. There is also the dilemma that one may feel that there are just too many professional conduct infractions that one sees that if they were to report all of what they saw, they would have to practically live in the State Bar’s Grievance office.

            But we have got to do better with how we treat one another. I know ours is the profession that is adversarial, but that doesn’t also mean that we have to behave so poorly to one another in those positions. So, is making incivility actionable under the rules of professional conduct the ticket to improve civility amongst our ranks? Well, stealing from one’s clients is clearly actionable under our rules of professional conduct, but we all see those lawyers disbarred each month in our monthly trade magazine for doing that very same thing. It still happens and happens on a regular basis. Even though there is a rule against stealing from your clients, attorneys STILL do it.  But the argument is that the Bar is clearly eschewing those offenders. So, making incivility actionable will hopefully have that same effect. We may not catch all the fish in our net, but we have a better chance at doing it with one rather than without one. I don’t know, but we do need something to send a message to the “barn yard” attorneys out there that their continued behavior is NOT to be tolerated.

            Should North Carolina and other states (if they haven’t already) follow suit in order to crack down on downright crass attorney behavior? Maybe WE here in North Carolina should open up that question for comment.