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Lawyer Civility Includes More Than a Pro Forma Attempt to be Civil” (LaSalle v. Vogel (2019) 36 Cal.App.5th 127.)

On Behalf of | Jul 11, 2019 | Civil Procedure, Ethics |

The day after a responsive pleading was due, plaintiff’s lawyer sent defendant a letter and an email telling her that the time to respond was past due and threatening entry of default if a responsive pleading was not filed by the next business day. When a pleading was not filed by 3:00 p.m. the next business day, plaintiff’s counsel filed a request for entry of default. Defendant quickly hired a lawyer who filed a motion to set aside the default pursuant to Code of Civil Procedure § 473, subdivision (b). The trial court denied defendant’s motion to set aside the default, despite a fact-filled declaration describing how defendant had been up to her neck taking care of urgent personal circumstances.  The Court of Appeal reversed and quoted from Code of Civil Procedure § 583.130 that “. . . all parties shall cooperate in bringing the action to trial or other disposition,” and concluded: “Attorneys who do not do so are practicing in contravention of the policy of the state and menacing the future of the profession.” (LaSalle v. Vogel (Cal. App. 4th Dist., Div. 3, June 11, 2019) 36 Cal.App.5th 127.)The opening paragraph of the Court of Appeal’s Opinion is succinct, and with a reference to a famous ghost ship states:

Here is what Code of Civil Procedure section 583.130 says: “It is the policy of the state that a plaintiff shall proceed with reasonable diligence in the prosecution of an action but that all parties shall cooperate in bringing the action to trial or other disposition.” That is not complicated language. No jury instruction defining any of its terms would be necessary if we were submitting it to a panel of non-lawyers. The
policy of the state is that the parties to a lawsuit “shall cooperate.” Period. Full stop.

Yet the principle the section dictates has somehow become the Marie Celeste of California law – a ghost ship reported by a few hardy souls but doubted by most people familiar with the area in which it’s been reported. The section’s adjuration to civility and cooperation “is a custom, More honor’d in the breach than the observance.”2 In this case, we deal here with more evidence that our profession has
come unmoored from its honorable commitment to the ideal expressed in section 583.130, and – in keeping with what has become an unfortunate tradition in California appellate law – we urge a return to the professionalism it represents.

The Court provided an nice analysis of other case citations dealing with the “lack of civility in civil procedure” including:

Three decades ago, our colleagues in the First District, dealing with a case they attributed to a “fit of pique between counsel,” addressed this entreaty to California attorneys, “We conclude by reminding members of the Bar that their responsibilities as officers of the court include professional courtesy to the court and to opposing counsel.  All too often today we see signs that the practice of law is becoming more like a business and less like a profession. We decry any such change, but the profession itself must chart its own course. The legal profession has already suffered a loss of stature and of public
respect. This is more easily understood when the public perspective of the profession is shaped by cases such as this where lawyers await the slightest provocation to turn upon each other. Lawyers and judges should work to improve and enhance the rule of law, not allow a return to the law of the jungle.” (Lossing v. Superior Court (1989) 207 Cal.App.3d 635, 641.)

In 1994, the Second District lambasted attorneys who were cluttering up the courts with what were essentially personal spats. In the words of a clearly exasperated Justice Gilbert, “If this case is an example, the term ‘civil procedure’ is an oxymoron.”  (Green v. GTE California (1994) 29 Cal.App.4th 407 408.) In 1997, another appellate court urged bench and bar to practice with more civility. “The law should not create an incentive to take the scorched earth, feet-to-the fire attitude that is all too common in litigation today.” (Pham v. Nguyen (1997) 54 Cal.App.4th 11, 17.)  By 2002, we had lawyers doing and saying things that would have beggared the imagination of the people who taught us how to practice law. We had a lawyer named John Heurlin who wrote to opposing counsel, “I plan on disseminating
your little letter to as many referring counsel as possible, you diminutive shit.”  Admonishing counsel to “educate yourself about attorney liens and the work product privilege,” Mr. Heurlin closed his letter with the clichéd but always popular, “See you in Court.” That and other failures resulted in Mr. Heurlin being sanctioned $6,000 for filing a frivolous appeal and referred to the State Bar. Our court thought publishing the ugly facts of the case, which they did in DeRose v. Heurlin (2002) 100 Cal.App.4th 158, would get the bar’s attention. It didn’t.
Almost a decade later, in a case called In re Marriage of Davenport (2011) 194 Cal.App.4th 1507, 1537, the First District tried again. They said, “We close this discussion with a reminder to counsel – all counsel, regardless of practice, regardless of age – that zealous advocacy does not equate with ‘attack dog’ or ‘scorched earth,’ nor does it mean lack of civility. [Citations.] Zeal and vigor in the representation of clients
are commendable. So are civility, courtesy, and cooperation. They are not mutually exclusive.”  Six months later, our court said this, “Our profession is rife with cynicism,
awash in incivility. Lawyers and judges of our generation spend a great deal of time lamenting the loss of a golden age when lawyers treated each other with respect and courtesy. It’s time to stop talking about the problem and act on it. For decades, our profession has given lip service to civility. All we have gotten from it is tired lips. We have reluctantly concluded lips cannot do the job; teeth are required. In this case, those
teeth will take the form of sanctions.” We sanctioned counsel $10,000. (Kim v. Westmoore Partners, Inc. (2011) 201 Cal.App.4th 267, 293 (Kim).)

This is not an exhaustive catalogue. Were we writing a compendium rather than an opinion, we could include keening from every state, because, “Incivility in open court infects the process of justice in many ways. It compromises the necessary public trust that the system will produce fair and just results; it negates the perception of professionalism in the legal community, and it erodes respect for all people involved in the process.” (In re Hillis (Del. 2004) 858 A.2d 317, 324.) Courts have had to urge counsel to turn down the heat on their litigation zeitgeist far too often. And while the factual scenarios of these cases differ, they are all variations on a theme of incivility that the bench has been decrying for decades, with very little success.  It’s gotten so bad the California State Bar amended the oath new attorneys
take to add a civility requirement. Since 2014, new attorneys have been required to vow to treat opposing counsel with “dignity, courtesy, and integrity.”  That was not done here. Dignity, courtesy, and integrity were conspicuously lacking.  We are reluctant to come down too hard on respondent’s counsel or the trial court because we think the problem is not so much a personal failure as systemic one.
Court and counsel below are merely indicative of the fact practitioners have become inured to this kind of practice. They have heard the mantra so often unthinkingly repeated that, “This is a business,” that they have lost sight of the fact the practice of law is not a business. It is a profession. And those who practice it carry a concomitantly greater responsibility than business people.  So what we review in this case is not so much a failure of court and counsel as an insidious decline in the standards of the profession that must be addressed. “The term ‘officer of the court,’ with all the assumptions of honor and integrity that append to
it must not be allowed to lose its significance.” (Kim, supra, at p. 292.) We reverse the order in this case because that significance was overlooked.