The State Bar seeks public comment on revised proposed amendments to California Rules of Professional Conduct 1.2 and 8.4, and new proposed Rule of Professional Conduct 8.4.2 to address incivility in the practice of law. These changes would clarify that a lawyer may be disciplined for incivility under current rules, as well as provide a new basis in the rules for discipline for incivility in the practice of law.
Deadline: June 23, 2023, 11:59 p.m.
Comments should be submitted using the online Public Comment Form. The online form allows you to input your comments directly and can also be used to upload your comment letter and/or other attachments.
To increase civility in the legal profession, the State Bar is proposing amendments to rules 1.2 and 8.4 of the Rules of Professional Conduct and a new rule 8.4.2 based on recommendations provided by the California Civility Task Force and the State Bar Committee on Professional Responsibility and Conduct. These changes would clarify that a lawyer may be disciplined for incivility and provide a new basis in the rules for discipline for uncivil conduct.
The State Bar is issuing revised proposed amendments to each of the rules that were issued for an initial public comment period: rules 1.2 and 8.4, and new rule 8.4.2.
Amendments to rule 1.2 Comment [1], as modified, would clarify that a lawyer has the authority to conduct themselves with civility, including agreeing to reasonable requests of opposing counsel or self-represented parties, even if their client directs otherwise, so long as the lawyer does not prejudice the rights of their client.
Amendments to rule 8.4, Comment [4], as modified, would clarify the cross-reference to the proposed new standalone rule, rule 8.4.2. Amendments to rule 8.4, Comment [6], as modified, would clarify that incivility violates rule 8.4(d) and rule 8.4.2, reference the definition of incivility in proposed rule 8.4.2(b), and clarify the examples of conduct that would not, on their own, violate rule 8.4(d). Comment [6] was also revised to direct lawyers to consult the current California Attorney Guidelines of Civility and Professionalism and other applicable legal authorities, such as the local rules of court and bar associations’ codes of civility.
Proposed new rule 8.4.2, as modified following initial public comment, would prohibit a lawyer from engaging in incivility in the practice of law. The rule would no longer apply to incivility in “related professional activities.” There are proposed revisions to the comments following initial public comment, including changes to Comment [1] to direct lawyers to consult the current California Attorney Guidelines of Civility and Professionalism as well as other applicable legal authorities; changes to Comment [2] to clarify examples of conduct that, on its own, would not violate the rule; and changes to Comment [3] to clarify that the rule applies to speech and conduct.
Potential costs associated with the proposed amendments to the Rules of Professional Conduct include the investigation and prosecution of alleged incivility.
Board of Trustees sitting as the Regulation and Discipline Committee
June 23, 2023, 11:59 p.m.