Albert J. Boro, Jr., Boro Law Firm
In June 2014, the federal courts of the Northern District of California adopted “Guidelines for Professional Conduct,” also called “Civility Guidelines.”
The Guidelines describe an attorney’s “duty of professionalism” as including “civility, professional integrity, personal dignity, candor, diligence, respect, courtesy, cooperation and competence.” (Civility Guidelines Preamble.) They were drafted with input from members of the bar to address a perceived “decline in civility in federal litigation, especially on the civil side.” (Email from L. Fuller, Media Liaison for N.D. Cal., quoting Chief Judge Claudia Wilken, dated Nov. 26, 2014.) The Civility Guidelines are a reaffirmation of the importance of “professionalism” by promoting zealous representation performed with candor, respect, empathy, and courtesy to opposing counsel and the parties.
The Guidelines represent best practices for attorneys appearing in the Northern District and are not prohibitory rules. The Guidelines’ Preamble states that attorneys are expected to abide by them, but the “Court does not anticipate that these Guidelines will be relied upon as the basis for a motion.” (Civility Guidelines Preamble.) The Guidelines address conduct that “should” or “should not” be undertaken – as opposed to “shall” or “shall not” – and set forth general Guidelines followed by examples applying them to situations that commonly arise in litigation. The Preamble directs attorneys to interpret them “in the context of” the Federal Rules of Civil Procedure, the Court’s Local Rules (especially Civil Local Rule 11-4), the California Rules of Professional Conduct, and the duty to represent zealously one’s client. (Civility Guidelines Preamble.)
Professionalism and civility between opposing counsel is a major focus. Attorneys are to inform their clients on professionalism: “A lawyer should . . . advise his or her client that civility and courtesy in scheduling meetings, hearings, and discovery are expected as professional conduct.” (Civility Guideline 3.)
Under the Guidelines, attorneys “should” agree to reasonable requests for extensions, be punctual in communications and appearances, be “civil, courteous, and accurate” in communications, “conduct discovery in a manner designed to ensure the timely, efficient, cost effective and just resolution of a dispute,” and “raise and explore the issue of settlement and alternative dispute resolution in every case as soon as the case can be evaluated.” (Id. 4, 6, 8, 9 & 13.)
The Guidelines also provide that attorneys “should not” choose the timing and manner of service of papers “to disadvantage or embarrass” the opposing party, communicate ex parte with a judicial officer or staff on a pending case (unless permitted by law), or “seek an opposing party’s default to obtain a judgment or substantive order without giving that opposing party sufficient advance written warning to allow the opposing party to cure the default.” (Id. 5, 12 & 15.)
The Civility Guidelines, like the California Rules of Professional Conduct, seek “to promote high regard for the legal profession and the judicial system” by the public. (Civility Guideline 11; see Cal. R. Prof. Conduct 1-100(A).) The Guidelines direct that an attorney’s “conduct in dealings with nonparty witnesses should exhibit the highest standards of civility,” and conduct at trial and hearings and in dealings with the parties and opposing counsel should “promote a positive image” of the profession. (Civility Guidelines 11, 14 & 18.)
Under the Guidelines, the duties of zealous representation and loyalty to the client should be carried out with civility and professionalism to further confidence in the legal profession and the judicial system.
About the author:
Al Boro specializes in antitrust, business litigation, clean energy and technology, and criminal defense. He is a member of BASF’s Legal Ethics Committee.