Ethics

Like the weather, everyone talks about civility but no one does anything about it.  Every year since 1984, when I began following the legal press, I have read a few hand-wringing pieces about the decline of civility in the profession.  As I have researched the 19th Century origins of California's duty of confidentiality, I have noticed that the decline of civility has been a favorite topic since at least the 1850s.  Maybe that should tell us something.

Civility is a topic that needs to be handled with care.   It traces to conceptions of "gentlemanly" conduct, and thus has been made to do duty as a code phrase for ugly biases against outsider groups.  It is my impression, at least, that in the past "he's not a gentleman" often could be translated "Jew." 

Given its checkered history and subjective nature, I sometimes wonder whether it is better to continue the time-honored tradition of worrying aloud about incivility but doing nothing about it.  But however one defines the elusive term "civility," it is my subjective view that screamers and table pounders, and people who won't give you an extension for papers due on December 26 (a real story for me), are tiresome.  And it is my impression that loutish conduct is used tactically to try to intimidate young lawyers, particularly young women.  As it is my job to try to get them launched with comparatively little trauma, I offer a suggestion for actually doing something: Civility traffic school.

Here's how it would work:

1.  A jurisdiction adopts a local rule empowering judges to issue civility tickets to lawyers appearing before them.  (The notion of a ticket is designed to create a middle ground between doing nothing and a formal sanction, which many judges seem reluctant to issue).

2.  Three levels of tickets are created--a warning (equivalent to a fix-it ticket), a three-hour fine, and a nine hour fine.  The hours represent time the recipient must do in civility school. 

3.  I expect CLE providers will step in to hold such schools.  Judges should require that they be held in really boring places (El Cajon, Stockton, South San Francisco, etc.), on Saturdays from 8:00 - 11:00. 

4.  Each ticket carries with it a certain number of points--say 1, 3, and 5.  The jurisdiction adopts a maximum for lawyers, say 10-15.  A lawyer who exceeds the maximum forfeits the right to appear in court, as, in some states, drivers with too many tickets lose their licenses.  Points would last two or three years, so good behavior could produce a clean record.  Lawyers would be required by rule to list their point score on the face of their pleadings, with their other information. 

This doesn't solve the transactional problem, but that is self-regulating (through client discipline) to a greater extent than litigation.  And it requires judges to actually step in and do something, but I see no way around that. 

For what it's worth.

DM