by Robert M. Dato
Civility among lawyers (or a perceived lack of it) continues to generate plenty of attention these days. Like many other jurisdictions, California first attempted to address the issue by promulgating standards for civility: the State Bar’s “Attorney Guidelines of Civility and Professionalism” in 2007.1
Voluntary compliance with these guidelines proved insufficient. The State Bar has now proposed that Rule 8.4.2 be added to the California Rules of Professional Conduct. Entitled “Prohibited Incivility,” the proposed rule provides that a lawyer “shall not engage in incivility in the practice of law” and defines incivility as “significantly unprofessional conduct that is abusive or harassing and shall be determined on the basis of all the facts and circumstances surrounding the conduct.” If approved by our Supreme Court, the State Bar could impose discipline on a lawyer for violating the rule. See Kristin L. Yokomoto, Will Attorneys Soon Be Subject to Discipline for Incivility?, Orange County Lawyer, Feb. 2023, at 56; see also Scott B. Garner, Civility Among Lawyers: Nice Guys Don’t Have to Finish Last, Orange County Lawyer, Mar. 2016, at 46. And starting with the compliance period ending January 31, 2025, licensees are now required to complete at least one hour of education (Civility in the Legal Profession Credit).
But for clients and lawyers, such measures may not be effective or may take too much time. They may want to seek more immediate relief within the confines of a litigated case. Here are some examples of where parties or lawyers sought various forms of judicial relief for attorney incivility.
1. Civil Harassment Restraining Order We’ll start with a potential remedy that ultimately did not succeed. In Hansen v. Volkov, 96 Cal. App. 5th 94 (2023), Hansen and Volkov were lawyers representing opposing parties in a contentious marital dissolution proceeding.2 Hansen noticed the deposition of Volkov’s client at her office, but canceled the deposition by email a few days before the scheduled date because Volkov had failed to confirm his client’s attendance. Hansen thought subsequent emails confirmed the deposition had been canceled; Volkov thought otherwise. Volkov’s client appeared at Hansen’s office on the scheduled date, but left after being told by Hansen’s paralegal that Volkov had canceled. A few minutes later Volkov arrived at Hansen’s office, walking past Hansen’s receptionist and entering an inner office area. Unknown to Volkov, Hansen’s children were present in the office, attending school remotely. Hansen’s paralegal told Volkov that he had to return to the waiting room; once there, she told him there was no deposition and that “there are children here.” Volkov refused to leave until he received “written confirmation there was no deposition.” Id. at 98. Hansen then arrived and told Volkov to leave. Volkov started to record the incident on his phone and claimed Hansen had tried to hurt him with a self-closing door, eventually leaving. Hansen successfully obtained a civil harassment restraining order against Volkov on behalf of herself, her family, and her office staff, alleging that Volkov “routinely comes to my place of business and refuses to leave, despite my repeated requests.” Id. at 99.
The court of appeal reversed and vacated the restraining order. After holding that Volkov’s “argumentative” emails that preceded the office incident did not threaten violence and were constitutionally protected litigation activity (id.), the court found that the office incident itself did not constitute harassment:
Hansen testified only that she felt sick to her stomach and scared that Volkov would not leave when she received the text message that Volkov was at her office and felt horrible once Volkov left because she had put others (her staff and her children) in this situation. That testimony was far from establishing that Volkov’s conduct, however offensive or annoying it may have been, caused Hansen—an experienced family law attorney who presumably has litigated many cases with difficult opposing counsel—to suffer intense, enduring and nontrivial emotional distress.
Id. at 106.
Although the court of appeal found Volkov’s conduct was inappropriate, it also criticized Hansen for applying for a restraining order “against her opposing counsel based on an argument over deposition scheduling that reasonable attorneys could have resolved without court intervention or because her office staff considered Volkov ‘creepy’ or annoying.” Id. at 107. This case makes it clear that—absent threats of violence and the like—a civil harassment restraining order against opposing counsel is unlikely to succeed.
2. Sanctions Courts have complained about the overuse of sanctions motions. See, e.g., Pilot Inc. v. TYC Brother Indus. Co., 2021 U.S. Dist. Lexis 7709, *18 (C.D. Cal., Jan. 14, 2021) (finding sanctions motion frivolous). But a case with extreme facts demonstrates that sanctions may be a viable option to curb uncivil behavior. In Crawford v. JPMorgan Chase Bank, N.A., 242 Cal. App. 4th 1265 (2015), after a series of disagreements concerning the deposition of his client, attorney Crawford attended the deposition but brought more than his client: He also brought pepper spray and a stun gun. After his client was sworn, “Crawford pointed the pepper spray at the face of opposing counsel [Traver] and said, ‘I will pepper spray you if you get out of hand.’ Crawford then produced a stun gun, pointed it at Traver’s head, and said, ‘If that doesn’t quell you, this is a flashlight that turns into a stun gun.’ Crawford discharged the stun gun close to Traver’s face.” Id. at 1270.
The trial court granted a motion for terminating sanctions for this and related conduct, and the court of appeal affirmed: “If ever a case required a terminating sanction, this is it. Crawford . . . made it impossible to continue with the litigation. Far from the trial court abusing its discretion, it would have been an abuse of discretion not to impose a terminating sanction.” Id. at 1271. Although lesser sanctions were apparently not sought in Crawford, it is possible that less egregious conduct could have justified lesser sanctions, such as issue preclusion or monetary sanctions.
3. Disqualification Uncivil conduct directed at an opposing party is grounds for another potential judicial remedy. In Martin v. Valtier, 2024 Cal. App. Unpub. Lexis 4409 (July 16, 2024, Case No. A167676), attorney Woodruff represented Martin in a dissolution matter. Woodruff attended a court hearing at which Martin’s former spouse (Valtier) and her counsel were present. After the hearing (which resulted in a ruling adverse to Martin), Woodruff approached Valtier and called her “a lying bitch.” Others in the courtroom, including Valtier’s lawyer, heard the outburst. Id. at *2-3. Asking for Woodruff to be disqualified for speaking with her directly rather than through counsel (Cal. Rules Prof. Conduct, Rule 4.2(a)), Valtier stated she “did not believe she would be able to participate effectively in court proceedings if Woodruff remained as Martin’s counsel.” Id. The trial court granted the motion, and the court of appeal affirmed, rejecting Woodruff’s argument that the presence of Valtier’s lawyer excused any violation: “Rule 4.2(a) is not limited to communications made in the absence of the party’s counsel; rather, it applies by its terms to all communications made without counsel’s consent. And there is nothing in this record to show counsel consented to Woodruff approaching Valtier and speaking to her in vulgar and insulting terms and an angry manner.” Id. at *6-7 (italics in original). Thus, attorney disqualification is another potential tool to curb abusive attorneys.
4. Reduction in Attorney Fees This may be less satisfying than the other remedies discussed above because it is available only at the end of a case that ends unfavorably for the client, but it’s better than nothing. In Snoeck v. ExakTime Innovations, Inc., 96 Cal. App. 5th 908 (2023), Snoeck prevailed on a claim under the Fair Employment and Housing Act (FEHA), thus entitling him to attorney fees. His attorney (Smith) requested a lodestar amount of nearly $1.2 million. ExakTime opposed the motion, arguing that the trial court should apply a “negative multiplier” to account for Smith’s lack of civility. Earlier in the case, Smith “accused ExakTime’s counsel of knowingly misrepresenting the law and facts to the trial and appellate courts, misconduct, and lying; . . . stated [defense counsel] was ‘cringeworthy’ and sold the court ‘the big lie’; referred to defense counsel as having viewed the trial court ‘as an easy mark,’ having ‘made a total fool of’ . . . and ‘exploited’ the trust of the trial judge . . . .” Id. at 913. The trial court applied a .4 negative multiplier to the lodestar, which reduced the attorney fee award about $500,000, finding that “[p]laintiff’s counsel’s ad hominem attacks were unnecessary for the zealous representation of his client . . . . Attorney skill is a traditional touchstone for deciding whether to adjust a lodestar . . . . Civility is an aspect of skill.” Id. at 915.
The court of appeal affirmed:
[A] downward departure from the lodestar figure is justified where the attorney demonstrates he is less skilled than would be expected of an attorney with comparable expertise or experience, billing at the same rate. . . . [P]laintiff’s counsel presented the issues with less skill—through his incivility—than would be expected of comparably experienced attorneys charging $750 per hour who conducted themselves with civility. . . . [A]n attorney of similar experience would not have believed making personal attacks on opposing counsel, and repeating those accusations to the court, would be an effective strategy to persuade opposing counsel its position was wrong or to persuade the court his client’s position was right.
Id. at 928.
The Snoeck opinion demonstrates that it’s never too late to attempt to fashion a remedy for uncivil conduct in litigation.
Conclusion Recently retired (and much admired) Justice William Bedsworth once wrote: “The timbre of our time has become unfortunately aggressive and disrespectful. Language addressed to opposing counsel and courts has lurched off the path of discourse and into the ditch of abuse. This isn’t who we are.” In re Mahoney, 65 Cal. App. 5th 376, 381 (2021). Sadly, it continues to be at least a portion of who we are. Until that changes, judicial remedies may be an effective tool to curb incivility.
ENDNOTES
Robert M. Dato is of counsel to Buchalter, A Professional Corporation, in Irvine. Bob’s primary practice is appellate law, and he is co-chair of Buchalter’s appellate department. Bob is a member of the OCBA Professionalism and Ethics Committee and is former chair of the State Bar’s Committee on Administration of Justice. He can be reached at rdato@buchalter.com.