The District Court for the Northern District of California recently implemented new Guidelines for Professional Conduct. Regular practitioners there, or even occasional ones, will need to become familiar with the guidelines, and must recognize that their conduct in that district can be judged with the guidelines in mind. But it’s instructive for anyone to examine these guidelines, and to consider what they mean for professionalism as a whole.
If I do not put on a sober habit,
Talk with respect and swear but now and then,
Wear prayer books in my pocket, look demurely—
Nay more. While grace is saying, hood mine eyes
Thus with my hat, and sigh and say, “Amen”—
Use all the observance of civility
Like one well studied in a sad ostent
To please his grandam, never trust me more.
The Merchant of Venice (2.2.190-97)
Neither the California Guidelines nor the Northern District of Illinois’ Standards for Professional Conduct (available here) are meant to supplant the existing Rules of Professional Conduct, despite the similar-sounding names. The issuance of Standards, Guidelines, and the like are instead a project – originally arising out of a study undertaken in the Seventh Circuit in the early 1990s – to encourage civility in litigation. But are the Illinois Standards (originally promulgated in 1992) or the recent California Guidelines the “civility codes” that many in the profession dread?
Rather than being written in the sharp, clipped Frankfurter style, the Illinois Standards are expressively Cardozo-like: descriptive and high-minded. They take the particularly plaintive form of pledges by lawyers and judges to behave respectfully toward one another. The Preamble articulates the Standards’ “twin goals of civility and professionalism, both of which are hallmarks of a learned profession devoted to public service.” The scholarly argument against continuing to define law as a “learned profession” (see, e.g., the work of Russell Pearce) makes no impact here; the Standards encourage everyone toward a purely old-school lawyer-statesman ideal.
The debate about whether that should be our ideal will doubtless continue. But as it does, it seems that standards and guidelines relating to civility are becoming more specific, not less; and as such are becoming more like rules and codes than aspirational recommendations.
The new California Guidelines are an example of that phenomenon. They do feature anodyne admonitions like “A lawyer should work to achieve his or her client’s lawful and meritorious objectives expeditiously and as economically as possible in a civil and professional manner” (Standard no. 2). Well, sure. But they also quickly delve into “examples” of specific discouraged conduct with a tone that begins to sound like that of a high-school teacher targeting an obstreperous student while imposing collective punishment. (“I’m looking at you, Randy!”)
Standard 4, example (f) is a case in point: “A lawyer should not condition an agreement to an extension of time on unfair or extraneous terms, except those a lawyer is entitled to impose, such as (i) preserving rights that could be jeopardized by an extension of time or (ii) seeking reciprocal scheduling concessions.” I’m familiar with many of the tactics discouraged by the Standards, but that one sounds neither commonplace nor lacking in remedy: if I want additional time and opposing counsel says no, can I not file a motion seeking the extension? The Standards also say that lawyers should not “engage in conduct that forces opposing counsel to file a motion that he or she does not intend to oppose” (Standard 10, example (b)), and while I understand the Standards’ inclination to discourage non-substantive litigation, I have trouble concluding that we are dealing with even venial sins here.
I am not at all denying that much of the kind of game-playing described in the Standard occurs in litigation, or that it is vexing. But how are we to define terms like “unfair or extraneous”? Why is a lawyer “entitled to impose…reciprocal scheduling concessions” but not entitled to impose other kinds of conditions for fear of them being labeled impermissibly “extraneous”? What recourse does anyone have if it does happen? It can’t be that anyone wants to see sanctions-related litigation over conduct frowned upon by the Standards; the Standards themselves encourage the “timely, efficient, cost effective and just resolution of a dispute,” which would not seem to be helped along by complaints to the court about how opposing counsel serves motions, or doesn’t agree to extensions of time.
Mary Robinson, in her article in The Professional Lawyer on the similarly difficult Florida Code for Resolving Professionalism Complaints, asserted not that civility is a doomed or unworthy project, but that it needs refocusing. Rather than encouraging lawyers to “voluntarily cede tactics that their opponents may still employ,” we should “find[ ] a genuine, contemporary shared understanding of reasonable professional practices.” The California Standards – even if not mandatory, even if they lack the force of “rules” – seem to focus on the kind of tactical analysis that slows the necessary larger discussion of professional norms. Do this, don’t do that; be reasonable and never intend to harass, but also zealously represent your client and give no quarter, except when you have to, because it would be much more reasonable if you would. Does the “learned profession” really demand that?