PHOENIX
LAW REVIEW
VOLUME 6
SPRING 2013
Published by
Phoenix School of Law
Phoenix, Arizona 85004
PROFESSIONAL
RESPONSIBILITY
Published by Phoenix Law Review, Phoenix School of Law, One North Central
Avenue, 14th Floor, Phoenix, Arizona 85004.
Phoenix Law Review welcomes the submission of manuscripts on any legal
topic and from all members of the legal community. Submissions can be made
via ExpressO at http://law.bepress.com/expresso, via e-mail to PhoenixLaw
[email protected], or via postal service to:
Submissions Editor
Phoenix Law Review
Phoenix School of Law
1 North Central Avenue
14th Floor
Phoenix, Arizona 85004
We regret that manuscripts cannot be returned. All submissions should
conform to the rules of citation contained in the most recent edition of The
Bluebook: A Uniform System of Citations, published by the Harvard Law
Review Association.
Phoenix Law Review is published twice each year or more by the Phoenix
School of Law. Subscription rates are $50.00 per year for United States
addresses and $64.00 per year for addresses in other countries. Subscriptions to
single issues are $15.00 for United States addresses and $20.00 per year for
addresses in other countries. Subscriptions are renewed automatically unless
notice to cancel is received. Subscriptions may be discontinued only at the
expiration of the current volume. Direct all communications to the Administrative Editor at the address given above.
Copyright © 2013 by Phoenix Law Review on all articles, comments, and
notes, unless otherwise expressly indicated. Phoenix Law Review grants permission for copies of articles, comments, and notes on which it holds a copyright to be made and used by nonprofit educational institutions, provided that
the author and Phoenix Law Review are identified and proper notice is affixed
to each copy. All other rights reserved.
Copyright © 2013 by Phoenix Law Review.
6 PHOENIX
Cite as:
L. REV. — (2013).
CIVILITY
FOR ARIZONA LAWYERS: ESSENTIAL,
ENDANGERED, ENFORCEABLE
Amelia Craig Cramer,* Linda Drake,** and Mariam Diggins***
I. INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
II. THE NATIONAL CIVILITY MOVEMENT IN THE LEGAL
PROFESSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
III. WHAT IS “CIVILITY” FOR LAWYERS? . . . . . . . . . . . . . . . . . . . . . . . . .
IV. DIFFERING METHODS FOR PROMOTING CIVILITY . . . . . . . . . . . . . . .
A. The ABA Model Rules of Professional Conduct . . . . . . . . . . .
B. Variation Among the States . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
V. ARIZONA’S HISTORY REGARDING CIVILITY . . . . . . . . . . . . . . . . . . . .
A. The Oath of Admission. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
B. The Lawyer’s Creed . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
C. The Arizona Supreme Court Rules, Including the Rules of
Professional Conduct . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
VI. ENFORCEMENT BY THE STATE BAR OF ARIZONA . . . . . . . . . . . . . .
A. Informal Approach at Intake . . . . . . . . . . . . . . . . . . . . . . . . . . . .
B. Diversion to Peer Review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
C. Formal Disciplinary Cases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
1. Cases Involving Incivility Plus Other Misconduct
Before 2008 Rule Change . . . . . . . . . . . . . . . . . . . . . . . . . . .
a. Cases Imposing Discipline for Incivility Before
2008 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
b. Cases Imposing Discipline for the Incivility of
Sexual Harassment Before 2008 . . . . . . . . . . . . . . . . .
c. Bar Admission Denied for Incivility Before 2008 . .
d. Cases in Which Discipline was Not Imposed for
Incivility Before 2008 . . . . . . . . . . . . . . . . . . . . . . . . . . .
466
469
471
474
474
475
478
481
481
482
483
483
484
487
487
487
490
492
493
* Amelia Craig Cramer is the Chief Deputy Pima County Attorney and chairs the Pima
County Attorney’s Ethics Committee; in addition, she served as 2012-2013 President of the State
Bar of Arizona and has served on the State Bar’s Task Force on Professionalism, Professionalism
Committee, and Committee on the Rules of Professional Responsibility; she also served as 20122013 President of the Morris K. Udall Inn of Court.
** Linda Drake served as Special Staff Assistant to the Pima County Attorney and as staff
attorney for the Arizona Court of Appeals, Division Two.
*** Mariam Diggins received her J.D. from the University of Arizona in 2013 and currently
works as a law clerk for the Pima County Attorney’s Office.
466
PHOENIX LAW REVIEW
[Vol. 6:465
2. Cases Involving Incivility Plus Other Misconduct:
After 2008 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
a. Discipline Imposed for Incivility After 2008 . . . . . .
b. Discipline Imposed for Incivility Involving Sexual
Harassment After 2008 . . . . . . . . . . . . . . . . . . . . . . . . .
3. Cases Involving Incivility Without Other Misconduct
Before and After 2008 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
a. Discipline for Incivility Alone Before 2008 Rule
Change . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
b. Discipline for Incivility Without Other Misconduct
After 2008 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
VII. IS ARIZONA DOING TOO MUCH OR TOO LITTLE TO ACHIEVE
CIVILITY IN THE LEGAL PROFESSION? . . . . . . . . . . . . . . . . . . . . . . . .
A. Consolidate Arizona’s Civility Mandate into a Single
Ethical Rule . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
B. Encourage Greater Reporting to the State Bar of Arizona .
C. Gather Statistical Data . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
D. Each Lawyer Should Set an Example of Civility . . . . . . . . . .
VIII. CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
495
495
497
498
498
499
504
507
508
509
510
510
“It has been said that a nation and its laws are an expression
of the highest ideals of its people. Unfortunately, the conduct
of our nation’s lawyers has sometimes been an expression of
the lowest.”1
I. INTRODUCTION
Incivility in the legal profession has been a source of concern and a fertile
topic of discussion for more than twenty years.2 Legal commentators in
droves3 have documented and decried that the “civility crisis”—the widely
shared perception among bar members that rude, aggressive, disrespectful,
1
Sandra Day O’Connor, Dedication, Professionalism, 76 WASH. U.L.Q. 5, 6 (1998).
See Christopher J. Piazzola, Ethical Versus Procedural Approaches to Civility: Why Ethics
2000 Should Have Adopted A Civility Rule, 74 U. COLO. L. REV. 1197, 1199-2000 (2003).
3 According to one author, an April 2008 Lexis search “produced 258 results for United
States law reviews and journals with sentences containing both ‘decline’ and ‘civility.’” Melissa
S. Hung, A Non-Trivial Pursuit: The California Attorney Guidelines of Civility and Professionalism, 48 SANTA CLARA L. REV. 1127, 1130 n.21 (2008). The same search in Westlaw on November 18, 2012, produced 394 results.
2
2013]
CIVILITY FOR ARIZONA LAWYERS
467
sometimes insulting, and occasionally outrageous behavior by a growing number of lawyers—has reached “epidemic proportions.”4
The deterioration of decorum in the legal profession has raised widespread
concern because civility represents more than just good manners. It is “an
enduring moral value,” the embodiment of such ethical principles as “respect,
tolerance, and the public good.”5 Chief Justice Warren Burger described civility as “the very glue that keeps an organized society from flying into pieces.”6
Its particular importance for lawyers can hardly be overstated. “[C]ivility is . . .
central to what our legal system is all about”7—our ability as a society “to
resolve civil and criminal conflicts in a fair, non-violent and civilized manner.”8 Nearly thirty years ago, the Arizona Supreme Court observed:
The profession’s insistence that counsel show restraint, selfdiscipline and a sense of reality in dealing with courts, other
counsel, witnesses and adversaries is more than insistence on
good manners. It is based on the knowledge that civilized,
rational behavior is essential if the judicial system is to perform its function. Absent this, any judicial proceeding is
likely to degenerate into verbal free-for-all and some, no
doubt, into physical combat.9
Justice Sandra Day O’Connor echoed this sentiment a decade later when
she observed that the justice system “cannot function effectively when the professionals charged with administering it cannot even be polite to one
another.”10 “When the lawyers themselves generate conflict, rather than focusing on the dispute between the parties they represent, it distorts our adversarial
system”11 and harms the parties by squandering time, energy, and resources
better spent on resolving the underlying dispute.12
Over the past twenty years, courts and bar associations across the country
have tried to stanch this proliferation of incivility in the legal profession by
adopting aspirational “civility codes,” and seeking other ways to inculcate and
4 Piazzola, supra note 2, at 1199. See also Warren E. Burger, Remarks, The Decline of
Professionalism, 63 FORDHAM L. REV. 949, 949 (1995) [hereinafter The Decline of Professionalism] (“The decline of professionalism, especially in the law, has taken on epidemic proportions.”).
5 Piazzola, supra note 2, at 1204.
6 Warren E. Burger, Remarks, The Necessity for Civility, 1 LITIGATION 8, 8 (1975).
7 Andrew Jay Graham, The Significance of Civility, MD. B.J., Sept.–Oct. 2003, at 25.
8 Id.
9 In re Ronwin, 680 P.2d 107, 115 (Ariz. 1983).
10 Paramount Commc’ns Inc. v. QVC Network Inc., 637 A.2d 34, n.24 (quoting Sandra Day
O’Connor, Civil Justice System Improvements, Address to the American Bar Association (Dec.
14, 1993)).
11 O’Connor, supra note 1, at 8.
12 See id. at 9.
468
PHOENIX LAW REVIEW
[Vol. 6:465
encourage greater civility among lawyers. By most accounts, these measures
were insufficient to the task13 and have led Arizona, and a small number of
other states, to take more forceful action.
In 2008, Arizona joined this pioneering group when the state’s supreme
court amended its rules to make incivility, when “substantial or repeated,” a
ground for professional discipline.14 The authors believe taking this action—to
require that lawyers be civil and to enforce the requirement through discipline—is, unfortunately, necessary. Unchecked, lawyers’ incivility threatens
the effective functioning of our system of justice and, in turn, the very survival
of the rule of law upon which our open, democratic society depends.15
Because the culture of civility and decorum, both in the legal profession and in
society at large,16 has steadily eroded, and because civility for lawyers and
judges is so crucial to our system of justice, civility must be mandated, and this
mandate must be enforced.17
Although Arizona’s willingness to enforce civility is laudable and necessary, it alone is not sufficient to solve the incivility problem. The civility mandate must be articulated more simply and placed within the Rules of
Professional Conduct—the ethical rules—so it can be easily understood and
widely known. Moreover, the methods employed by the State Bar of Arizona
(“SBA”) to enforce the civility mandate must be evaluated to determine
whether they are, in fact, succeeding at reducing the number or severity of
incivility instances within the profession—or, at least, reducing recidivism by
13
See Hung, supra note 3.
See infra Part V.C.
15 See Clarence Thomas, Commentary, A Return to Civility, 33 TULSA L.J. 7, 8-9 (1997).
16 In response to an Interim Report released in April 1991 by the Committee on Civility of the
Seventh Circuit Court of Appeals, one judicial commentator observed:
14
Today our talk is coarse and rude, our entertainment is vulgar and violent, our music is
hard and loud, our institutions are weakened, our values are superficial, egoism has
replaced altruism and cynicism pervades. Amid these surroundings none should be
surprised that the courtroom is less tranquil. Cardozo reminds us that “judges are never
free from the feelings of the times . . . .”
COMM. ON CIVILITY OF THE SEVENTH FED. JUDICIAL CIRCUIT, FINAL REPORT, 143 F.R.D. 441, 445
(7th Cir. 1992) [hereinafter FINAL REPORT, 7TH CIRCUIT COMMITTEE ON CIVILITY] .
17 As used throughout this Article, the expression “mandating civility” is intended as a convenient shorthand for the process of expressly including civility among the stated duties and obligations of a lawyer and treating incivility as a form of professional misconduct that may subject a
lawyer to discipline. Courts have the inherent power to regulate the legal profession and can
adopt rules requiring lawyers and judges to adhere to certain standards of behavior or risk sanction
or disciplinary action. See Inherent Powers: Resource Guide, NAT’L CENTER FOR ST. CTS., http://
www.ncsc.org/topics/court-management/inherent-powers/resource-guide.aspx (last visited Mar.
28, 2013).
2013]
CIVILITY FOR ARIZONA LAWYERS
469
individual lawyers. Additionally, even more must be done to encourage a culture of greater civility within the legal profession.
Ultimately, each lawyer must assume responsibility for creating a new and
more civil legal culture. On a daily basis, each must exercise the self-discipline
to disagree without being disagreeable and to refrain from responding in kind
when confronted with nastiness. Of course, this is far easier said than done.18
II. THE NATIONAL CIVILITY MOVEMENT IN THE LEGAL PROFESSION
Historically, and until comparatively recently, no state’s rules of professional conduct for lawyers included references to civility. Rather, civility was
addressed separately, if at all, in oaths, creeds, or civility codes.
The origin of the current movement to address and enhance civility in the
legal profession frequently is traced to the 1992 Seventh Circuit Court of
Appeals’ adoption of a Civility Code.19 That Seventh Circuit Court of
Appeals’ Code grew out of an extensive study, which showed that a majority of
lawyers and judges believed civility within the circuit had declined.20 The
Civility Code then became a prototype for similar codes in other jurisdictions.21
Through the early 1990s, then-retired Justice Burger frequently promoted
civility, as did his Supreme Court colleagues.22 Justice O’Connor concurred
that civility is necessary to the proper administration of justice; she pointed out
that incivility causes inefficiency, unnecessary expense, and loss of public
respect.23
18 Amelia Craig Cramer, one of the authors of this Article, recalls with chagrin and remorse
her own indecorous response to an opposing lawyer’s uncivil outburst some years ago. Triggered
by the other lawyer’s angrily banging the table, raising his voice, and swearing at her during their
meeting to discuss a discovery dispute, she reacted by raising her own voice and using profanity in
return. When she later recounted the regrettable exchange to a colleague, he wisely advised that a
better response would have been politely to inform opposing counsel that she would conclude the
meeting if he did not speak to her with civility and then, had the incivility continued, simply to
have left the meeting. No single approach is guaranteed to work equally well in every situation, as
when one is not able simply to walk away. Yet, there ought to always be a civil solution.
19 FINAL REPORT, 7TH CIRCUIT COMMITTEE ON CIVILITY, supra note 16.
20 Id. at 443.
21 See Raymond M. Ripple, Learning Outside the Fire: The Need for Civility Instruction in
Law School, 15 NOTRE DAME J.L. ETHICS & PUB. POL’Y 359, 369-70 (2001); Piazzola, supra note
2, at 1200.
22 E.g., The Decline of Professionalism, supra note 4; Thomas, supra note 15, at 7-8 (warning
that, unless civility in the legal profession improves, “we will be contributing to the erosion of the
rules that allow our civil society to function” and the profession may slide into a “legal ‘state of
nature’.”).
23 Paramount Commc’ns Inc. v. QVC Network Inc., 637 A.2d 34, n.24 (quoting Sandra Day
O’Connor, Civil Justice System Improvements, Address to the American Bar Association (Dec.
14, 1993)).
470
PHOENIX LAW REVIEW
[Vol. 6:465
In 1993 and 1994, three major legal scholars released books on the civility
“crisis,”24 and in 1995, the House of Delegates of the American Bar Association (“ABA”) adopted a resolution encouraging courts and bar associations to
adopt civility codes setting “aspirational goals to promote professionalism
[among] lawyers and judges.”25 Within three years of the Seventh Circuit
Court of Appeals’ adoption of its Civility Code, nearly 100 other jurisdictions
followed suit.26
In 1997, the ABA established its “Ethics 2000” Commission to evaluate
and propose changes to the Model Rules of Professional Conduct.27 As a result
of the Commission’s work, references to civility were added to the Preamble to
the ABA Model Rules of Professional Conduct and to the Comments to Rule
1.3.28 The Preamble currently states that the principles underlying the Rules
“include the lawyer’s obligation zealously to protect and pursue a client’s legitimate interests, within the bounds of the law, while maintaining a professional,
courteous and civil attitude toward all persons involved in the legal system.”29
In addition, a Comment to Model Rule 1.3 admonishes that a “lawyer’s duty to
act with reasonable diligence does not require the use of offensive tactics or
preclude the treating of all persons in the legal process with courtesy and
respect.”30
In 2011, the ABA House of Delegates renewed its longstanding commitment to civility among lawyers and judges31 by formally reaffirming the importance of civility “as a foundation for democracy and the rule of law,” and
urging lawyers “to set a high standard for civil discourse as an example for
others.”32 Yet, despite these pronouncements, the ABA has stopped short of
24 MARY ANNE GLENDON, A NATION UNDER LAWYERS (1994); ANTHONY T. KRONMAN, THE
LOST LAWYER: FAILING IDEALS OF THE LEGAL PROFESSION (1993); SOL M. LINOWITZ & MARTIN
MAYER, THE BETRAYED PROFESSION: LAWYERING AT THE END OF THE TWENTIETH CENTURY
(1994).
25 G. M. Filisko, Be Nice: More States Are Treating Incivility as a Possible Ethics Violation,
A.B.A. J., Apr. 2012, at 26.
26 See Rob Atkinson, A Dissenter’s Commentary on the Professionalism Crusade, 74 TEX. L.
REV. 259, 278 n.74 (1995).
27 See generally Margaret Colgate Love, The Revised ABA Model Rules of Professional Conduct: Summary of the Work of Ethics 2000, 15 GEO. J. LEGAL ETHICS 441 (2002); E. Norman
Veasey, Ethics 2000: Thoughts and Comments on Key Issues of Professional Responsibility in the
Twenty-First Century, 5 DEL. L. REV. 1 (2002); Piazzola, supra note 2, at 1201 n.29.
28 See Piazzola, supra note 2, at 1201 n.30. In the accompanying text, however, Piazzola
faults the Ethics 2000 Commission for having “missed an opportunity to express the bar’s shared
concerns by adopting a Model Rule on civility.” Id. at 1201.
29 MODEL RULES OF PROF’L CONDUCT Preamble (2012).
30 Id. R. 1.3 cmt. 1.
31 Filisko, supra note 25.
32 ABA House of Delegates, Resolution 108 (2011), available at http://www.americanbar.org/
content/dam/aba/directories/policy/2011_am_108.authcheckdam.pdf.
2013]
CIVILITY FOR ARIZONA LAWYERS
471
amending its Model Rules of Professional Conduct to mandate civility, continuing instead to treat it merely as an aspirational goal.
One wonders whether the ABA considers civility less important than other
aspects of professionalism, or for some other reason has declined to recommend that civility be mandated.33 Either way, the ABA’s conclusion that there
is an urgent need for greater civility in the profession was widely accepted, and
a majority of states have adopted aspirational civility codes. Only recently, a
few states have gone further still—beyond the limits of the ABA’s recommendations—and created civility mandates.
Looking to Arizona as an example, this Article examines the practical viability of mandating civility, and considers whether Arizona should and could do
more.
III. WHAT IS “CIVILITY” FOR LAWYERS?
Before examining the efficacy of efforts to promote civility among lawyers, it is useful to consider the scope and meaning of the term. Many legal
scholars have attempted to define the concept of civility; in doing so, all seem
to agree that the idea is complex, difficult to define, and subjective.34
One of the challenges in defining civility is the overlapping relationship
between civility and professionalism. Sometimes, civility is actually defined as
professionalism,35 or the terms are used interchangeably.36 The State Bar of
Arizona (“SBA”) is among those who have used the terms interchangeably.37
However, civility and professionalism are different concepts; it is important to
33 In the Introduction to the written report of the Ethics 2000 Commission, the Commission’s
Chair, Judge Norman Veasey, wrote that the Ethics 2000 Commission had “retained the primary
disciplinary function of the Rules, resisting the temptation to preach aspirationally about ‘best
practices’ or professionalism concepts. Valuable as the profession might find such guidance, it
would not have—and should not be misperceived as having—a regulatory dimension.” Report,
ABA Commission on Evaluation of the Rules of Prof’l Conduct (Aug. 2001), available at http://
www.americanbar.org/content/dam/aba/administrative/professional_responsibility/report_hod_08
2001.authcheckdam.pdf.
34 See, e.g., Amy R. Mashburn, Professionalism as Class Ideology: Civility Codes and Bar
Hierarchy, 28 VAL. U. L. REV. 657, 687 (1994) (“Whatever one may think about the relativist
debate in ethics generally, civility and courtesy are undeniably contingent on context.”); Piazzola,
supra note 2, at 1202-04 (“In the legal context, ‘civility’ does not have a precise meaning.”).
35 Kara Anne Nagorney, Note, A Noble Profession? A Discussion of Civility Among Lawyers,
12 GEO. J. LEGAL ETHICS 815, 816 (1999).
36 See Mashburn, supra note 34, at 683–84; Brenda Smith, Note, Civility Codes: The Newest
Weapons in the “Civil” War Over Proper Attorney Conduct Regulations Miss Their Mark, 24 U.
DAYTON L. REV. 151, 157 n.45 (1998).
37 The State Bar of Arizona lists professionalism as one of its core values. Core Values, ST.
B. ARIZONA, http://www.azbar.org/aboutus/corevalues (last visited Mar. 28, 2013). However, it is
plain from the definition that the Bar has used “professionalism” in this context as a synonym for
civility:
472
PHOENIX LAW REVIEW
[Vol. 6:465
recognize that civility is merely one element, albeit a vital one, of the broader
concept of professionalism. “Professionalism” is all conduct that falls under
the scope of professional conduct and ethics rules,38 but it is also much more
than that.39 Along with civility, professionalism includes a lawyer’s fundamental duties of competency, confidentiality, and loyalty.40 True civility is an
exercise in maturity and restraint.41 It means being respectful, having good
manners,42 demonstrating consideration, behaving courteously, and avoiding
provocative speech. It allows advocates to engage in adversarial discourse
without resorting to personal attacks. The cornerstone of civility is a basic
respect for others. As one legal commentator observed, “Respect is the foundation of civility as it is [of] good sportsmanship, good manners, and the Golden
Rule.”43
For lawyers, civility denotes dignified, courteous discourse amidst the distinctly adversarial process that is the law. It is, in an oft-used phrase, the ability
This value represents our commitment to each other and to all whom we encounter to
act with highest level of sensitivity to the feelings of others. It transcends common
courtesy and requires treating all persons within the sphere of our influence with dignity, respect, and unqualified civility.
Id.
38 For simplicity, any generic mention in this Article of ethical rules or rules of professional
conduct refers to the ABA Model Rules of Professional Conduct. Although the Model Rules
themselves are not legally binding, every state but California has rules of professional conduct that
follow the ABA Model Rules, either in whole or in part. Alphabetical List of States Adopting
Model Rules, A.B.A. CENTER FOR PROF. RESP., http://www.americanbar.org/groups/professional_
responsibility/publications/model_rules_of_professional_conduct/alpha_list_state_adopting_
model_rules.html (last visited Mar. 28, 2013).
39 Melissa L. Breger, Gina M. Calabrese & Theresa A. Hughes, Teaching Professionalism in
Context: Insights from Students, Clients, Adversaries, and Judges, 55 S.C. L. REV. 303, 306
(2003) (“[P]rofessionalism embraces the realm of ethics, but also reaches far beyond. Professionalism also encompasses principles of appropriate attorney conduct and aspirational ideals for an
effective advocate, counselor, officer of the court, and member of the bar. Although ethical rules
provide a minimum level of professionalism, there is substantial debate over standards of professionalism beyond the mandatory rules.”).
40 WORKING GRP. ON LAWYER CONDUCT & PROFESSIONALISM, A NATIONAL ACTION PLAN ON
LAWYER CONDUCT AND PROFESSIONALISM 2 (1999) [hereinafter NAT’L ACTION PLAN] (“Professionalism is a much broader concept than legal ethics. For the purposes of this report, professionalism includes not only civility among members of the bench and bar, but also competence,
integrity, respect for the rule of law, participation in pro bono and community service, and conduct by members of the legal professional that exceeds the minimum ethical requirements.”),
available at http://ccj.ncsc.dni.us/natlplan/NatlActionPlan.html.
41 See Civilized Definition, MERRIAM-WEBSTER.COM, http://www.merriam-webster.com/dictionary/civilized (last visited Mar. 31, 2013).
42 See id.; Civility Definition, DICTIONARY.COM, http://dictionary.reference.com/browse/civility?s=t (last visited Mar. 31, 2013).
43 William B. Smith, Civility, Setting the Tone for Respect!, in CIVILITY MATTERS 8, 8 (Am.
Bd. of Trial Advocates, 2011).
2013]
CIVILITY FOR ARIZONA LAWYERS
473
to disagree without being disagreeable. In the context of law practice, civility
defines the appropriate behavior that an attorney should exhibit towards judges,
colleagues, clients, and all other members of the legal community. Civility
requires behaving respectfully toward others, and not hindering another’s pursuit of interests that are contrary to one’s own.44 This means recognizing that,
although the very nature of an adversarial system pits opposing sides against
one another, litigation serves as “the structured and professional mechanism
civilized society has established for peaceably resolving legitimate disputes.”45
“Peaceably” means more than avoiding physical violence; it also means avoiding gratuitous abrasiveness and animosity. This requires communicating in a
manner that articulates conflicting principles and ideas without expressing personal antipathy.
Looking to the civility codes adopted by various jurisdictions can help elucidate the meaning of civility, as each code attempts to delineate the conduct
and obligations that define “civil” for that jurisdiction. The differing codes also
highlight how blurry the line can be between the definitions of “professionalism” and “civility.”46
In 2012, Professor Donald E. Campbell, Assistant Professor of Law at Mississippi College School of Law, analyzed civility codes in thirty-two states and
distilled ten essential components of civility that were common to all of those
jurisdictions. Professor Campbell found that these jurisdictions collectively
call upon lawyers to:
(1) recognize the importance of keeping commitments and of
seeking agreement and accommodation with regard to scheduling and extensions; (2) be respectful and act in a courteous,
cordial, and civil manner; (3) be prompt, punctual, and prepared; (4) maintain honesty and personal integrity; (5) communicate with opposing counsel; (6) avoid actions taken
merely to delay or harass; (7) ensure proper conduct before
the court; (8) act with dignity and cooperation in pre-trial proceedings; (9) act as a role model to the client and public and as
a mentor to young lawyers; and (10) utilize the court system in
an efficient and fair manner.47
44
Piazzola, supra note 2, at 1203.
Saldana v. Kmart Corp., 84 F. Supp. 2d 629, 639 (D.V.I. 1999), aff’d in part, rev’d in part,
260 F.3d 228 (3d Cir. 2001).
46 See, e.g., Smith, supra note 36, at 162–65 (arguing civility code provisions discussing
appropriate conduct during discovery are unnecessary because ABA Model Rules of Professional
Conduct adequately regulate the behavior).
47 Donald E. Campbell, Raise Your Right Hand and Swear to Be Civil: Defining Civility as
an Obligation of Professional Responsibility, 47 GONZ. L. REV. 99, 108-09 (2011).
45
474
PHOENIX LAW REVIEW
[Vol. 6:465
Certainly, all of these common components are elements of professionalism. However, this Article suggests that some are less directly related to the
narrower concept of civility per se.
IV.
DIFFERING METHODS
FOR
PROMOTING CIVILITY
A. The ABA Model Rules of Professional Conduct
As noted in Part II, under its Model Rules of Professional Conduct, the
ABA has declined to mandate civility per se and has left it instead as merely an
aspirational goal.
Nevertheless, the ABA Model Rules of Professional Conduct appear to
require a number of the ten common civility components that Professor Campbell identified. Model Rule 3.5(d), which prohibits “conduct intended to disrupt a tribunal,”48 arguably covers the separate requirements that lawyers must
“ensure proper conduct before the court” and “act with dignity and cooperation
in pre-trial proceedings.”49 Additionally, lawyers who take actions “merely to
delay or harass”50 are subject to Model Rules 4.4 and 3.1.51 A lawyer who
fails to “keep[ ] commitments,”52 to be prompt, to be prepared for a case, and
to be accommodating in regard to scheduling and requests for extensions could
run afoul of Model Rule 3.2.53 Depending on the type of communication, the
promise to “communicate with opposing counsel”54 could fall under any number of the Model Rules.55 “[U]tiliz[ing] the court system in an efficient and
fair manner”56 could fall within Model Rules 3.1, 3.2, or 4.4.57 Honesty and
truthfulness are required while representing a client under Model Rules 4.1 and
8.4(c).58 Finally, in egregious circumstances, Model Rule 8.4(d), which pro48
MODEL RULES OF PROF’L CONDUCT R. 3.5(d) (2012).
Campbell, supra note 47, at 109.
50 Id.
51 MODEL RULES OF PROF’L CONDUCT R. 4.4(a) (“In representing a client, a lawyer shall not
use means that have no substantial purpose other than to embarrass, delay, or burden a third
person . . . .”); id. R. 3.1 (“A lawyer shall not bring or defend a proceeding, or assert or controvert
an issue therein, unless there is a basis in law and fact for doing so that is not frivolous . . . .”).
52 Campbell, supra note 47, at 109.
53 MODEL RULES OF PROF’L CONDUCT R. 3.2 (“A lawyer shall make reasonable efforts to
expedite litigation consistent with the interests of the client.”).
54 Campbell, supra note 47, at 109.
55 See, e.g., MODEL RULES OF PROF’L CONDUCT R. 3.4 (“A lawyer shall not: (a) unlawfully
obstruct another party’s access to evidence . . . .”).
56 Campbell, supra note 47, at 109.
57 MODEL RULES OF PROF’L CONDUCT R. 3.2, 4.4(a).
58 Id. R. 4.1, 8.4(c).
49
2013]
CIVILITY FOR ARIZONA LAWYERS
475
hibits conduct “prejudicial to the administration of justice,”59 may cover any
violation of the elements of civility codes.
Ultimately, the only tenets of “civility” that are not already encompassed in
the ABA’s Model Rules of Professional Conduct are the general obligations to
act as a role model to the client and the public, and as a mentor to young
lawyers, and the more specific obligations to behave in a courteous, cordial,
and respectful manner.60 While there is little dispute that these specific tenets
of civility are vital in the legal profession,61 they are not expressly mandated by
the ABA Model Rules.
B. Variation Among the States
Most jurisdictions have recognized the problem of incivility and have made
efforts to address it. Nearly all states have adopted a civility code or its
equivalent.62 By one commentator’s tally, between 1986 and 2007, at least 140
state and local bar associations had adopted some form of civility code or
guideline;63 however, the code and guideline contents vary considerably from
jurisdiction to jurisdiction.64 Although a few states, including Arizona, have
taken steps to require civility for lawyers by establishing enforcement mechanisms,65 most still follow the ABA Model Rules, leaving greater civility as a
mere aspirational goal.
The vast majority of states have established no means for enforcing their
civility codes; indeed, many codes expressly declare that they are only aspirational. For example, California’s Guidelines of Civility and Professionalism
state that the Guidelines are “voluntary” and not to be used as a basis for disci-
59
Id. R. 8.4(d).
Campbell, supra note 47, at 109.
61 This Article focuses only on the latter obligations of respect, courtesy, cordiality, and civility; role modeling and mentoring are beyond its scope. Nevertheless, it should be noted that
exhibiting civility is directly essential to role modeling and at least indirectly to mentoring.
62 Professionalism Codes, A.B.A., http://www.americanbar.org/groups/professional_responsi
bility/resources/professionalism/professionalism_codes.html (last updated Aug. 2012).
63 Campbell, supra note 47, at 102 n.17, 141-42. Arizona was an early leader in this respect
as well. In 1989, the State Bar of Arizona’s Board of Governors adopted The Lawyer’s Creed of
Professionalism, which was based on the Cleveland Bar Association’s similar Creed. STATE BAR
OF ARIZ., Minutes of Board of Governors meeting of May 19, 1989, at 449 (on file with author).
64 Campbell, supra note 47, at 108.
65 It is difficult to say with certainty whether other states also have attempted to make civility
mandatory. Arizona’s own rules mandating civility are not easy to find, so it is possible other
states have adopted similarly obscure rules. It is not the authors’ intent in this section to detail
every state’s mechanism for addressing this problem, but only to highlight a few specific
examples.
60
476
PHOENIX LAW REVIEW
[Vol. 6:465
pline.66 It is likewise unclear that there are any mechanisms in place to enforce
Utah’s Standards for Professionalism and Civility, as the Preamble uses some
permissive language and states that the standards do not “supersede[ ] or
detract[ ] from existing disciplinary codes or standards of conduct.”67
Although at least four states—South Carolina, Utah, New Mexico, and Florida—now have incorporated civility language into the oaths sworn by lawyers
upon admission to the bar68 and have adopted some rules to enforce compliance with those oaths, it appears that only Michigan currently includes a specific civility requirement in its professional responsibility code.
Michigan was a pioneer in mandating civility, and it took a bold and direct
approach. Since 1993, Michigan’s Rules of Professional Conduct have
required lawyers to “treat with courtesy and respect all persons involved in the
legal process.”69 This rule has been used to discipline attorneys for various
uncivil behaviors, e.g., using vulgar and insulting language and publicly lambasting members of the judiciary.70 Michigan’s ethical rules also specifically
prohibit “undignified or discourteous conduct toward the tribunal.”71
Other states also mandate civility, but in a less direct fashion than Michigan. For example, in 1997, South Carolina’s highest court adopted a rule making violations of an attorney’s oath of admission a ground for professional
discipline.72 The oath requires South Carolina attorneys to pledge to “maintain
the respect and courtesy due to courts of justice, judicial officers, and those
who assist them; . . . [to act with] fairness, integrity, and civility [to opposing
parties and their counsel], not only in court, but also in all written and oral
communications; . . . [and to] maintain the dignity of the legal system.”73
66
State Bar of Cal., California Attorney Guidelines of Civility and Professionalism, in SUPECOURT OF CALIFORNIA COUNTY OF SACRAMENTO, LOCAL RULES app. B, 5 (2013), http://
www.saccourt.ca.gov/local-rules/docs/local-rules.pdf.
67 Utah Standards of Professionalism and Civility, UTAH ST. CTS., http://www.utcourts.gov/
courts/sup/civility.htm (last updated Feb. 25, 2008).
68 See Professionalism Ethics and Civility, AM. BOARD TRIAL ADVOCS., https://www.abota.
org/index.cfm?pg=ProfEthicsCivility (last visited Mar. 30, 2013).
69 MICH. RULES OF PROF’L CONDUCT R. 6.5(a) (State Bar of Mich. 2012); From the Michigan
Supreme Court, 72 MICH. B.J. 852, 855 (1993) (adding Rule 6.5 to Michigan Rules of Professional Conduct).
70 See Barkovic v. Justices of Mich. Supreme Court, No. 10-14145, 2010 WL 5129017, at *1
(E.D. Mich. Dec. 10, 2010) (vulgar and insulting language); Grievance Adm’r v. Fieger, 719
N.W.2d 123, 128-29 (Mich. 2006) (publicly lambasting judiciary).
71 MICH. RULES OF PROF’L CONDUCT R. 3.5(d) (State Bar of Mich. 2012).
72 S.C. APP. CT. R. 7(a)(6), 413 (2012); David J. Parrish, The Lawyer Disciplinary Process in
South Carolina, 8 S.C. LAW. 20, 20, 22 (1997).
73 S.C. APP. CT. R. 402(k)(3) (2013). The South Carolina Supreme Court recently upheld the
civility clause in the attorney’s oath against claims that it was unconstitutionally vague and overbroad. The court also upheld a disciplinary panel’s finding that the lawyer respondent was subject
to discipline for minor misconduct based on uncivil communications with opposing counsel that
RIOR
2013]
CIVILITY FOR ARIZONA LAWYERS
477
Like South Carolina, Wisconsin has incorporated the attorney’s oath into
its Supreme Court Rules by including violations of the oath in its definition of
“professional misconduct.”74 But Wisconsin’s oath of admission merely
alludes to civility, having only a vow to “abstain from all offensive personality.”75 In practice, the “offensive personality” standard of Rule 40.15, of the
Wisconsin Supreme Court Rules has been applied to attorney discipline for
conduct such as sexually harassing a court reporter, and using rude and abusive
behavior and language.76 In addition to its ethical rules and attorney’s oath,
Wisconsin also has a separate court rule, which was adopted by the Wisconsin
Supreme Court in 1996, entitled “Standards of Courtesy and Decorum for the
Courts of Wisconsin.”77 The rule says lawyers “shall at all times”: “[m]aintain
a cordial and respectful demeanor,” “conduct all court and court-related proceedings . . . with civility and respect for [all] participants,” and “[a]bstain from
making disparaging, demeaning or sarcastic remarks” and from any “uncivil,
abrasive, abusive, hostile or obstructive” behavior.78 Although trial courts can
impose sanctions for violations of this rule,79 the Wisconsin Supreme Court
made the rule’s civility standards expressly “not enforceable by the office of
lawyer regulation.”80
A recent nationwide resurgence of interest in elevating civility in the legal
profession81 may eventually lead more states to decide to impose discipline for
incivility. For example, in late 2011, the Florida Supreme Court amended its
Oath of Admission to include a pledge of “fairness, integrity, and civility, not
only in court, but also in all written and oral communications.”82 The same
constituted a violation of the lawyer’s oath. In re Anonymous Member of S.C. Bar, 709 S.E.2d
633, 636-38 (S.C. 2011).
74 WIS. SUP. CT. R. 20:8.4(g) (2012).
75 Id. R. 40.15 (2012).
76 See In re Disciplinary Proceedings against Beatse, 2006 WI 115, ¶¶ 10, 17, 297 Wis. 2d
292, 296, 722 N.W.2d 385, 387-88; In re Disciplinary Proceedings against Eisenberg, 2004 WI
14, ¶¶ 30, 35, 269 Wis. 2d 43, 55, 57, 675 N.W.2d 747, 753-54, reinstatement granted, 2007 WI
7, 298 Wis. 2d 578, 726 N.W.2d 634.
77 WIS. SUP. CT. R. 62.02 (2002).
78 Id. R. 62.02(a)–(d).
79 Aspen Servs., Inc. v. IT Corp., 583 N.W.2d 849, 851-52 (Wis. Ct. App. 1998) (upholding
trial court’s order reducing award of plaintiff’s recoverable attorney’s fees and costs “as a sanction
for the incivility of its attorney”).
80 WIS. SUP. CT. R. 62.01 (2002).
81 E.g., Donald J. Winder & Jerald V. Hale, Enforcing Civility in an Uncivilized World, in
CIVILITY MATTERS 21, 21 (Am. Bd. of Trial Advocates 2011) (“[A] quiet revolution has been
taking place as bar associations and courts seek to put a greater emphasis on civility in the legal
profession.”).
82 Jan Pudlow, Revised Admission Oath Now Emphasizes Civility, FLA. B. NEWS (Oct. 1,
2011), http://www.floridabar.org/DIVCOM/JN/JNNews01.nsf/Articles/F0058F33EA1FFEFC852
5791700476E37.
478
PHOENIX LAW REVIEW
[Vol. 6:465
court’s Commission on Professionalism recently proposed a rule that would
define unprofessional conduct as “repeated and substantial” violations of the
previously aspirational professionalism standards addressed in the Oath of
Admission and the Florida Bar Creed of Professionalism, and Ideals and Goals
of Professionalism.83 Even before these two developments, Florida, like other
states, sometimes used its version of Model Rule 8.4 that prohibits “conduct . . .
prejudicial to the administration of justice” to discipline egregiously uncivil
attorney behavior.84
In 2008, Arizona recognized that its aspirational approach had not worked
to eliminate uncivil behavior; therefore, Arizona became one of the few states
to mandate civility for lawyers. In an approach similar to that of South Carolina, Arizona incorporated civility requirements into the Oath of Admission and
Creed of Professionalism in its Supreme Court Rules of Professional Conduct.
The result is that incivility is defined as a form of professional misconduct
prohibited under the Rules.85
Before examining how these rule changes have affected the SBA’s ability
to address uncivil attorney behavior over the past five years, it is necessary to
review Arizona’s historical approach to the problem of incivility. Important to
that review is an understanding of why amending the Arizona Supreme Court’s
Rules of Professional Conduct to mandate civility was necessary and specifically how those rules were amended.
V. ARIZONA’S HISTORY REGARDING CIVILITY
Arizona began to focus on professionalism in general more than twenty
years ago. In 1989, its SBA Board of Governors first adopted a civility code
known as the “Lawyer’s Creed of Professionalism.”86 Approximately a decade
later, and in response to continuing concern about the “deterioration of civility
within the practice,” Arizona became one of the first states to require that all
83 Gary Blankenship, Lapses in Professionalism May Lead to Disciplinary Sanctions, FLA. B.
NEWS (July 15, 2012), http://www.floridabar.org/DIVCOM/JN/JNNews01.nsf/RSSFeed/F3B6FE
3E910088D685257A3600436181.
84 Gary Blankenship, Putting “Teeth” in Professionalism, FLA. B. NEWS (May 15, 2012),
http://www.floridabar.org/DIVCOM/JN/JNNews01.nsf/Articles/92C1E519C6934A8E852579
F4006C11CB; see also, e.g., Fla. Bar v. Ratiner, 46 So. 3d 35, 36, 30 (Fla. 2010), as revised on
reh’g (Sept. 30, 2010).
85 See discussion infra Part V.
86 State Bar of Ariz., A Lawyer’s Creed of Professionalism of the State Bar of Arizona (2005)
[hereinafter Lawyer’s Creed of Professionalism].
2013]
CIVILITY FOR ARIZONA LAWYERS
479
attorneys in the state—not just newly admitted attorneys—take a professionalism course administered by the SBA.87
In 2003, after five years and excessive reports of unacceptable behavior by
too many lawyers, the Supreme Court of Arizona amended its Rules of Professional Conduct to replace the requirement of “zealous” advocacy with the duty
to act “honorably.”88 Then-Chief Justice Charles Jones described this revision
as “a very significant foundational change in the Rules of the Court, and one
that was designed to send a distinct message to attorneys”89—some of whom
had sought to justify their “unprofessional and potentially belligerent” behavior
by citing the “zealous advocacy” requirement in the previous version of the
rules.90 The Preamble to the Rules now provides:
[1] . . . Whether or not engaging in the practice of law, lawyers should conduct themselves honorably.
....
[9] . . . These principles include the lawyer’s obligation to
protect and pursue a client’s legitimate interests, within the
bounds of the law, while acting honorably and maintaining a
professional, courteous and civil attitude toward all persons
involved in the legal system.91
Also in 2003, the SBA established its Task Force on Professionalism,
which issued its final report in 2005. In that report, the Task Force urged that
the SBA petition the Supreme Court of Arizona to adopt a mandate of professionalism that would include the following definition: “Professionalism
requires lawyers to act at all times with honesty, integrity, courtesy, and
respect, and to render excellent service to their clients and communities.”92
87 Robert Van Wyck, Professionalism Course Mandatory for All Attorneys, ARIZ. ATT’Y (July
1998), http://www.myazbar.org/AZAttorney/Archives/July98/7-98a2.htm; see also Ariz. Sup. Ct.
R. 34(n) (2013).
88 David D. Dodge, The New Ethical Rules: Don’t Skip the Preamble, ARIZ. ATT’Y, Oct.
2003, at 31; Lynda C. Shely, The New Rules of Professional Conduct: An Overview, ARIZ.
ATT’Y, Oct. 2003, at 29. Following Arizona’s lead, other states—including “Indiana, Louisiana,
Montana, Nevada, New Jersey, Oregon and Washington[—]have likewise omitted all references
to zealousness in their rules, preambles, and commentaries.” Winder & Hale, supra note 81, at
21.
89 News Release, Arizona Supreme Court, Supreme Court Approves Amendments to Governing Rules (June 6, 2003) (on file with author).
90 Id.
91 ARIZ. RULES OF PROF’L CONDUCT Preamble (State Bar of Ariz. 2013) (emphasis added).
92 TASK FORCE ON PROFESSIONALISM, STATE BAR OF ARIZ., REPORT OF THE TASK FORCE ON
PROFESSIONALISM 3 (2005) [hereinafter TASK FORCE REPORT].
480
PHOENIX LAW REVIEW
[Vol. 6:465
Observing in its report that “[j]ust what is ‘professional’ is often a subjective matter,”93 the Task Force recommended that the court adopt a definition of
professionalism with developed standards.94 The Task Force also noted the
need for a rule change because, at that time, there were no rules dictating professional behavior; in particular, there was no connection between the lawyer’s
Oath and the Creed, the court’s rules, and the Rules of Professional Conduct.95
The SBA approved the recommendations of the Task Force and proposed
changes to the rules that it believed would “give[ ] guidance to lawyers about
the expectations of professionalism” and provide a definition of the term that
would withstand constitutional scrutiny.96 The SBA believed the prohibition
against “offensive personality” was too vague and subject to misapplication.
Thus, it urged a focus upon unprofessional conduct, rather than personality.97
After extended consideration, and some modification to the language
requested by the SBA, the Supreme Court of Arizona agreed to amend its rules
to make civility—as described in the Oath of Admission and the Creed of Professionalism—both mandatory and enforceable.98
93
Id. at 4.
Id. at 12; Amended Petition to Amend Rules 53, 31(a)(2) and 41(g), Arizona Rules of the
Supreme Court, No. R-05-0021 (filed Nov. 29, 2005) [hereinafter Amended Petition to Amend
Rules 53, 31(a)(2) and 41(g)], available at http://azdnn.dnnmax.com/Portals/0/NTForums_Attach/
1128275523458.pdf (defining unprofessional conduct); Comment of State Bar to the Court’s Proposed Alternatives to Amended Petition to Amend Rules 53, 31(a)(2) and 41(g), Ariz. R. Sup. Ct.
at 2, In re Amended Petition to Amend Rules 53, 31(a)(2) and 41(g), Arizona Rules of the
Supreme Court (filed May 22, 2007) (No. R-05-0021), available at http://azdnn.dnnmax.com/
Portals/0/NTForums_Attach/1522485873954.DOC (recommending alternative text that defines
“unprofessional conduct” and provides guidance on professionalism expectations to lawyers (citing Alternative #1, STATE BAR OF ARIZ. (Apr. 19, 2006), available at http://azdnn.dnnmax.com/
AZSupremeCourtMain/AZCourtRulesMain/CourtRulesForumMain/CourtRulesForum/tabid/91/
forumid/7/postid/3/view/topic/Default.aspx)).
95 TASK FORCE REPORT, supra note 92, at 4-5.
96 See Amended Petition to Amend Rules 53, 31(a)(2) and 41(g), supra note 94, at 1-2. See
also, e.g., United States v. Wunsch, 84 F.3d 1110, 1120 (9th Cir. 1996) (“‘conduct unbecoming a
member of the bar’ has . . . definable substance’ and is not void for vagueness” (quoting United
States v. Hearst, 638 F.2d 1190, 1197 (9th Cir. 1980))); Hearst, 638 F.2d at 1197 (upholding
prohibition against “conduct unbecoming a member of the bar” because the phrase “refers to the
legal profession’s ‘code of behavior’ and ‘lore,’ of which all attorneys are charged with
knowledge”).
97 Amended Petition to Amend Rules 53, 31(a)(2) and 41(g), supra note 94. What was captioned as an amended petition was really a formal comment to the court in response to two alternative options the court had asked the SBA to review in response to the SBA’s original petition. Id.
98 Only incivilities committed during the practice of law will subject a lawyer to discipline.
Although the rule does apply to a lawyer’s “off duty” conduct, in that respect it is aspirational
only. As a 2007 Comment to Rule 41(g) explains:
94
Lawyers, whether or not engaged in the practice of law, should act honorably and treat
others with courtesy and respect. Unprofessional conduct, as defined by Rule
2013]
CIVILITY FOR ARIZONA LAWYERS
481
A. The Oath of Admission
Decades ago, the SBA adopted, and the Supreme Court of Arizona
approved,99 the Oath of Admission to the Bar (“the Oath”). The Oath requires
lawyers to promise to “maintain the respect due to courts of justice and judicial
officers,” to “abstain from all offensive conduct,” and “at all times faithfully
and diligently adhere to the rules of professional responsibility and a lawyer’s
creed of professionalism of the State Bar of Arizona.”100 Thus, the Oath incorporates by reference the Lawyer’s Creed.101
B. The Lawyer’s Creed
The Lawyer’s Creed of Professionalism, adopted by the SBA in 1989, provides examples of professionalism by listing thirty-three specific actions lawyers must take—or refrain from taking—with respect to clients, opposing
parties, opposing counsel, courts, other tribunals, the public, and the system of
justice.102 The Creed requires a lawyer to be “courteous and civil, both in oral
31(a)(2)(E), during the practice of law may result in discipline pursuant to Rules 41(g)
and 53(j). Specified conduct outside the practice of law, such as conviction of a felony,
Rule 53(h), or engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation, Rule 42, ER 8.4(c), and Rule 53(a), may also be grounds for discipline.
ARIZ. R. SUP. CT. 41(g) cmt. (2007 Amendment) (emphasis added). This Comment clarifies that
Arizona lawyers are not subject to discipline for incivility or dubious behavior when they are “off
duty” and not engaging in activities with some nexus to their practice of law. Only for more
serious conduct involving dishonesty or “conviction of a felony” will a lawyer potentially be
disciplined by the Bar for conduct unrelated to the practice of law. The Comment was adopted
effective January 1, 2008, along with amendments to Rules 41(g), 53, and 31(a)(2). See Order
Amending Rules 31(a)(2), 41(g), and 53, Rules of the Supreme Court, No. R-05-0021 (Ariz. Sept.
5, 2007), available at http://www.azcourts.gov/portals/20/ramd_pdf/r-05-0021.pdf.
99 The Oath’s origin and date of first adoption in Arizona are difficult to ascertain. However,
minutes of the SBA Board of Governors meetings reflect that the Oath was last amended in 1989.
At its meeting on May 19, 1989, after the Board of Governors approved the adoption of “A
Lawyer’s Creed of Professionalism,” it simultaneously approved amendments to the Oath to
require adherence to the Creed as well as to the Ethical Rules. STATE BAR OF ARIZ., Minutes of
Board of Governors meeting of May 19, 1989, at 449. ARIZ. R. SUP. CT. 32(c)(3) says: “Upon
admission to the state bar, an applicant shall also, in open court, take and subscribe an oath to
support the constitution of the United States and the constitution and laws of the State of Arizona
in the form provided by the supreme court.” The Arizona Supreme Court has generally deferred
to the SBA in terms of the contents of the Oath, administering the Oath in whatever form the SBA
has adopted.
100 Oath of Admission, ST. B. ARIZONA, http://www.azbar.org/membership/admissions/oathof
admission (last visited Apr. 1, 2013).
101 Id.
102 Lawyer’s Creed of Professionalism, supra note 86. Since its original adoption in 1989, the
Creed of Professionalism has undergone two revisions, in September 2003 and May 2005. Id.
Since 2008, the Oath and the Creed have also appeared following the text of Arizona Supreme
Court Rule 31 in the online versions of the Rules.
482
PHOENIX LAW REVIEW
[Vol. 6:465
and in written communication” with respect to opposing parties and their counsel, and to “advise [her] client that civility and courtesy are not to be equated
with weakness.”103
C. The Arizona Supreme Court Rules, Including the Rules of
Professional Conduct
Ethical Rule 8.4 under Rule 42 of the Arizona Supreme Court Rules, is
fashioned after ABA Model Rule 8.4, which makes it “professional misconduct
for a lawyer to: . . . (d) engage in conduct that is prejudicial to the administration of justice.”104 The SBA has long interpreted this to encompass conduct
that is egregiously uncivil and unprofessional.105
After the rule changes that took effect on January 1, 2008, the SBA continued to apply Ethical Rule 8.4. However, it also began to enforce the professionalism requirement, including its elements of civility, more explicitly and
for less extreme conduct through the injunction against “unprofessional conduct” in amended Rule 41(g).106 The injunction of Rule 41(g) was made
enforceable through Rule 54(i), which the Court amended to include
“[u]nprofessional conduct as defined in Rule 31(a)(2)(E)” among the grounds
for discipline.107
Rule 31(a)(2)(E) now defines “[u]nprofessional conduct” as “substantial or
repeated violations of the Oath of Admission to the Bar or the Lawyer’s Creed
of Professionalism of the State Bar of Arizona.”108 Because courtesy, civility,
and abstaining from “all offensive conduct” are explicit components of the
Oath and the Creed, the rule amendments make these behaviors requirements of
professional conduct for Arizona lawyers. Failing in a significant or recurrent
way to behave with civility or otherwise adhere to the Oath of Admission and
the Creed of Professionalism subjects an Arizona lawyer to discipline for
unprofessional conduct.
These rule amendments were in keeping with the changes the SBA’s 2005
Task Force recommended. With the adoption of these changes in 2008, the
103
Id.
ARIZ. RULES OF PROF’L CONDUCT R 8.4(d) (State Bar of Ariz. 2003).
105 Interview with Maret Vessella, Chief Bar Counsel, State Bar of Ariz., in Phx., Ariz. (Oct.
26, 2012).
106 Before the amendments took effect, Rule 41(g) required lawyers to “abstain from all offensive personality . . . .” Order Amending Rules 31(a)(2), 41(g), and 53, Rules of the Supreme
Court, No. R-05-0021 (Ariz. Sept. 5, 2007), available at http://www.azcourts.gov/portals/20/
ramd_pdf/r-05-0021.pdf. The rule now proscribes “engaging in unprofessional conduct.” Id.
107 ARIZ. R. SUP. CT. R. 54(i) (2013).
108 ARIZ. R. SUP. CT. R. 31(a)(2)(E) (2013).
104
2013]
CIVILITY FOR ARIZONA LAWYERS
483
Supreme Court of Arizona made civility for lawyers mandatory, and made incivility subject to discipline by the SBA.
VI. ENFORCEMENT BY THE STATE BAR OF ARIZONA
During the proceedings for rule amendment, the SBA envisioned enforcing
the new civility mandate by diverting most incivility complaints away from
prosecution to the SBA’s Peer Review Program—as a generally preferred initial step for complaints involving unprofessional conduct.109 From the limited
data generated thus far, it appears that this vision has become the practical
reality.
There have been instances in which lawyers were disciplined for incivility
in Arizona, but they have been relatively rare. Only a small percentage of
discipline cases formally prosecuted by the SBA appear to involve claims of
incivility or unprofessional conduct under Rule 41(g). The percentage of all
SBA discipline cases, closed in 2009 and involving claims under Rule 41(g),
was only 2.12%; in 2010, the percentage was just 2.58%; and in 2011, the
percentage was a mere 1.73%.110
The SBA addresses incivility complaints against attorneys in three ways.
First, when a complaint is received, the SBA may communicate informally—
but immediately, directly, and confidentially—with the attorney who is the subject of the complaint to discuss and resolve the issue. Second, the complaint
may be diverted by referral from the SBA Lawyer Regulation Office to the
Peer Review Program for a confidential and informal intervention. Finally, the
complaint may be prosecuted, which could result in informal or formal discipline. Such discipline is not confidential; it is made public. The alternative
chosen generally depends upon the severity of the complaint and the response
of the lawyer when confronted with that complaint.
A. Informal Approach at Intake
The SBA in recent years has dedicated significant resources to establishing
a robust intake system at the Lawyer Regulation Office. Experienced SBA
discipline attorneys take phone calls and review letters and e-mails from individuals complaining about unethical or unprofessional conduct by a lawyer.111
The intake attorneys in the Lawyer Regulation Office evaluate whether each
109 Comment on Petition, In re Amended Petition to Amend Rules 53, 31(a)(2) and 41(g),
Arizona Rules of the Supreme Court (filed Nov. 29, 2005) (R-05-0021), available at http://
azdnn.dnnmax.com/AZSupremeCourtMain/AZCourtRulesMain/CourtRulesForumMain/Court
RulesForum/tabid/91/forumid/7/postid/3/view/topic/Default.aspx.
110 OFFICE OF LAWYER REGULATION, STATE BAR OF ARIZ., ANNUAL REPORT (2009-2011) (as
interpreted by Maret Vessella, Chief Bar Counsel, State Bar of Arizona).
111 Interview with Maret Vessella, supra note 105.
484
PHOENIX LAW REVIEW
[Vol. 6:465
complaint alleges conduct constituting a violation of the Supreme Court of Arizona’s Rules.112 If not, no further action is taken.113 If so, the intake attorneys
determine whether to refer the allegations for formal investigation and prosecution by Lawyer Regulation attorneys or whether to attempt to handle the complaint informally and immediately. Many matters involving all sorts of rule
violations, including incivility, have been successfully handled informally.114
For example, if a client calls to complain that her lawyer is not returning
her calls, the intake attorney in the SBA’s Lawyer Regulation Office may call
the lawyer and explain the complaint. If the lawyer admits to the omission, the
SBA lawyer may urge the reported lawyer to call the client immediately and
remedy the situation. If the lawyer agrees and follows through, the intake attorney makes note of the complaint and declines to refer the matter for discipline
prosecution because the goal of lawyer discipline is to obtain compliance with
the Rules; in cases such as this, that compliance has been achieved.115 Only if
such conduct were repeated would the intake attorney refer the lawyer for a full
investigation and possible imposition of discipline.116
Likewise, if a judge or opposing counsel contacts the SBA to complain
about a lawyer’s incivility involving, for example, swearing and yelling, the
SBA intake attorney may contact the reported lawyer. If the lawyer admits to
the conduct and is willing to apologize and refrain from such incivility in the
future, the intake attorney may decline to take further action upon confirmation
that the lawyer has remedied the issue. Again, only if there were repeated
complaints of such conduct against the same lawyer would the intake attorney
at the SBA refer the lawyer for possible prosecution by the Lawyer Regulation
Office.117 If the lawyer is a first-time offender and the instance of incivility
isolated or relatively mild, but the lawyer resisted accepting responsibility at
intake, the matter might be diverted either at intake, or later from the Lawyer
Regulation Office to Peer Review, for resolution.
B. Diversion to Peer Review
Most reported complaints of lawyer incivility in Arizona are diverted away
from discipline because they do not meet the minimum threshold for commencing a disciplinary investigation. Some that cannot be resolved simply and
informally at intake are, nevertheless, diverted away from formal prosecution;
they are referred to the SBA’s Peer Review Program, which was established to
112
113
114
115
116
117
Id.
Id.
Id.
Id.
Id.
Id.
2013]
CIVILITY FOR ARIZONA LAWYERS
485
promote compliance with civility requirements and to encourage courtesy in
professional dealings.118
The Peer Review Program is intended to act as an early warning system for
behavior that suggests professional problems; it provides the lawyer with an
opportunity to ameliorate the behavior. A referral may be made at intake or at
any time during investigation or prosecution. In such a case, the referral to
Peer Review is public for a period of time; however, the details of participation
are confidential pursuant to the Peer Review Guidelines.119 Participation in
Peer Review may also be deemed a term of formal diversion after prosecution.120 If it is part of a diversion agreement or order, the referral is confidential. Such a referral does not have to be reported, on any application or form, as
being an SBA discipline complaint or charge; however, whether it must be
reported may depend upon the framing of the question on the application or
form.121
Written guidelines from a volunteer Peer Review Committee (with staff
support) control the Peer Review Program’s operation.122 An SBA intake
attorney receives a complaint and then assigns a Peer Review Committee member to contact the respondent lawyer by telephone to discuss the nature of the
complaint and to provide the lawyer with the opportunity to participate voluntarily in the Peer Review Program.123 If the lawyer agrees, and subsequently
complies with the requirements of the Peer Review Program, he or she can
avoid any further action based on the complaint.124 If the lawyer does not
agree to participate in the Peer Review Program, the matter may be sent back to
the SBA’s Lawyer Regulation Office for prosecution.125
The Peer Review Program works in a relatively straightforward fashion.
When the complaint is received, the Peer Review Committee member contacts
the complaining party to obtain further information.126 The Peer Review Committee member contacts and counsels the respondent lawyer regarding the
reported behavior; obtains an acknowledgment of the unprofessional, uncivil
behavior from the respondent lawyer; and helps the respondent lawyer to communicate an apology to the complainant (or otherwise to make amends under
118 Information provided by Peggy Alford, Fee Arbitration and Peer Review Programs Coordinator, State Bar of Ariz. (Oct. 15, 2012).
119 Id.
120 Id.
121 Id.
122 Id.
123 Id.
124 Id.
125 Id.
126 Id.
486
PHOENIX LAW REVIEW
[Vol. 6:465
guidance).127 When the Peer Review Committee member believes it appropriate, he or she may refer the respondent lawyer to an educational program, to
counseling offered through the SBA’s Continuing Legal Education program, to
a repeat attendance at the SBA’s Professionalism Course, or to the SBA’s
Member Assistance Program (for substance abuse or mental health
counseling).128
From January 1, 2007, through October 15, 2012, both before and after the
adoption of the new rules mandating civility, the SBA’s Lawyer Regulation
Office referred a total of seventy-one complaints of unprofessional conduct to
the Peer Review Program.129 Of these seventy-one, fifty-two cases (or
73.24%) involved abusive language.130 Of those fifty-two, twenty-nine cases
were resolved successfully by peer-to-peer counseling; each resulted in
acknowledgment of improper behavior and an apology under the guidance of a
Peer Review Committee member.131 Ten cases were referred to other SBA
programs—to help the attorney avoid future misbehavior—as above, e.g., continuing education, Member Assistance, or repeat attendance at the Professionalism Course.132 Eight complaints were determined, after investigation, to be
invalid.133 One case was referred to the Peer Review Program, but the peer-topeer counseling was unsuccessful; the matter was referred back to Lawyer Regulation, and the attorney subsequently was disciplined for abusive language and
other ethical violations.134 One complaint remained unresolved because the
attorney died before a Peer Review Committee member could call. In three
cases, the attorneys refused to cooperate and were referred back to the Lawyer
Regulation Office for possible prosecution and discipline.135
The Peer Review Program is similar to a “three strikes rule.” If the Peer
Review Committee detects a pattern of unprofessional behavior, the matter is
reviewed by the Committee Chair to determine if the matter should be referred
back to the Lawyer Regulation Office for prosecution and discipline.136 Since
the adoption of the new rules mandating civility, only one attorney has been
referred thrice to Peer Review and had his matter referred back for discipline.137 Two other attorneys have been referred to Peer Review twice within a
127
128
129
130
131
132
133
134
135
136
137
Id.
Id.
Id.
Id.
Id.
Id.
Id.
Id.
Id.
Id.
Id.
2013]
CIVILITY FOR ARIZONA LAWYERS
487
twelve-month period for abusive language.138 A third offense within a twelvemonth period will result in the lawyer being referred back to the Lawyer Regulation Office for formal prosecution and possible discipline.139
C. Formal Disciplinary Cases
Of the very small percentage of incivility cases that have gone beyond Peer
Review and resulted in formal prosecution by the SBA’s Lawyer Regulation
Office (and the eventual imposition of discipline), most have involved allegations of other serious misconduct in addition to incivility. Interestingly, some
of these involved conduct that occurred prior to the 2008 amendments to the
rules that expressly mandate civility. Ethical Rule 8.4, prohibiting conduct
contrary to the administration of justice, and the older version of Rule 41(g),
which prohibited “offensive personality,” were the bases for imposing discipline in some of these earlier cases, which typically involved extreme instances
of incivility. In others of these older cases, however, there were findings that
no discipline could be imposed for the incivility because it was not expressly
prohibited by the rules.
This Article attempts to examine the available SBA records for all bar discipline cases involving allegations of incivility. They fall into two primary
categories: (1) those alleging incivility in addition to other, more serious misconduct; and (2) those alleging incivility alone. Within each category, the
cases were grouped according to whether the conduct occurred before or after
the 2008 rule changes, and then each was examined as to whether discipline
was imposed specifically for the incivility alleged. The goal was to compare
pre- and post-2008 discipline cases to see if any trends or differences have
emerged since the rules were amended to add incivility to the types of unprofessional conduct that are now expressly subject to discipline.
1.
Cases Involving Incivility Plus Other Misconduct Before 2008
Rule Change
a. Cases Imposing Discipline for Incivility Before 2008
• Benito S. is a former Arizona attorney who was disbarred in
1985 for unethically commingling and making use of client
funds, failing to render an accounting for almost two years,
and failing to keep a client informed on the lawsuit’s progress.140 One of Mr. S.’s instances of misconduct, which
138
139
140
Id.
Id.
In re Benito S., 694 P.2d 253, 258 (Ariz. 1985).
488
PHOENIX LAW REVIEW
[Vol. 6:465
was included in his discipline, resulted from an episode of
incivility. He was “loud, abusive, and disrespectful to a
superior court judge in the presence of others.”141
• Meyer Z. was suspended in 1993 for a period of ninety days
and placed on probation for one year for multiple violations
of the Ethical Rules.142 In one case, he failed to respond to
discovery requests, failed to comply with a court order compelling responses (allowing his client’s case to be dismissed
as a result), and failed to notify his client of any of these
matters.143 In another case, he entered into a stipulation on
his client’s behalf in a paternity matter without his client’s
knowledge or consent.144 In yet a third case, he twice failed
to respond to an arbitrator’s requests for information and
refused to cooperate with opposing counsel for preparation
of a joint prehearing statement.145 After the arbitrator dismissed the case, in an ex parte communication with the
arbitrator, Mr. Z. engaged in an episode of incivility in
which he argued with the arbitrator about his rulings and
“made a profane and insulting remark.”146 The incivility
was among the cited grounds for which the Bar imposed his
disciplinary suspension.147
• Robert H. was disbarred in 1998 for unethical conduct
involving twenty-two clients, many of whom he left unrepresented at hearings and trials, and many of whom were
abandoned after paying “non-refundable retainers.”148 One
of Mr. H’s instances of misconduct, which was included in
his discipline, resulted from an episode of incivility. While
representing the father in a child custody dispute, Mr. H.
followed the mother into the hall outside the courtroom and
then into an empty courtroom and demanded in a rude,
threatening manner, using a loud voice, that she tell him
141
142
143
144
145
146
147
148
Id.
In re Meyer Z., 847 P.2d 106, 107 (Ariz. 1993).
Id. at 108.
Id.
Id.
Id.
Id. at 108-09.
In re Robert H., 960 P.2d 640, 640-41 (Ariz. 1998).
2013]
CIVILITY FOR ARIZONA LAWYERS
489
where she was keeping the child.149 The judge ordered that
Mr. H. be escorted out of the courthouse by sheriff’s deputies and found him in contempt for offensive conduct.150
• John B. was censured, placed on one year’s probation, and
referred to the State Bar’s Member Assistance Program in
2005 for four separate episodes of incivility that occurred in
2001 and 2002.151 The conduct cumulatively included
name-calling, accusations, and abusive conduct directed on
different occasions toward opposing counsel, a treating physician, and a judge.152 In addition, Mr. B. had publicly and
profanely disparaged a judicial officer after an adverse ruling; had told another judge that this judge’s ruling was
“crazy;” and had made an angry, vulgar remark to opposing
counsel during a deposition.153 The Disciplinary Commission upheld the hearing officer’s factual findings but made
its own further de novo findings that Mr. B.’s conduct was
“offensive at a minimum” and had violated Rule 41(g) in
each instance.154
• Stephanie B. engaged in uncivil conduct in 2004 and then
failed to respond honestly to an inquiry regarding that
uncivil conduct.155 She was censured and placed on probation for a year with required participation in the Bar’s Member Assistance Program and Ethics Enhancement Program
after she was found to have left an inappropriate voicemail
message for an attorney, in which she used profane and/or
threatening language.156 The attorney notified law enforcement, and an investigation ensued.157 During the investiga149
See Robert H. v. Superior Court Cnty. of Maricopa, 908 P.2d 22, 23-24 (Ariz. Ct. App.
1995).
150
Id. at 24.
In re John B., No. SB-05-0003-D, 2005 WL 6317938, at *1 (Ariz. Disp. Comm’n Mar. 23,
2005) (denying petition for review of Disciplinary Commission’s decision).
152 Disciplinary Commission Report at 2-3, In re John B., No. SB-05-0003-D, 2005 WL
6317938 (Ariz. Disp. Comm’n Mar. 23, 2005) (Nos. 02-1070, 02-1628, 02-2066), 2004 WL
5730517.
153 Id.
154 Id. at 6-7.
155 Hearing Officer’s Report at 5-6, In re Stephanie B., No. SB-06-0128-D, 2006 WL 6319076
(Ariz. Disp. Comm’n April 18, 2006) [hereinafter Officer’s Report].
156 Disciplinary Commission Report at 1, In re Stephanie B., No. SB-06-0128-D, 2006 WL
6319077 (Ariz. Disp. Comm’n July 13, 2006); Officer’s Report, supra note 155, at 2.
157 Officer’s Report, supra note 155, at 2.
151
490
PHOENIX LAW REVIEW
[Vol. 6:465
tion, Ms. B. knowingly failed to answer a police detective’s
questions truthfully and falsely suggested someone else
recorded the message.158 Ms. B’s misconduct was not associated with her representation of a client.159
• William R. received an interim suspension for purchasing
methamphetamine.160 Following his resignation as a deputy
county attorney, he left two voicemail messages for his former employer in which he made uncivil remarks, which
resulted in an Informal Reprimand in 2007.161 The Informal Reprimand stated: “In the voicemail messages you left
with personnel at your former employer’s office, you failed
to abstain from all offensive personality, in violation of Rule
41(g). In addition, you engaged in conduct prejudicial to
the administration of justice, in violation of ER 8.4(d).”162
It is notable that all six of these cases, in which discipline was imposed
between 1985 and 2007 for incivility plus other misconduct, involved incivility
toward a judicial officer in a trial-level proceeding or toward a law enforcement
officer or agency.
b. Cases Imposing Discipline for the Incivility of Sexual
Harassment Before 2008
In a significant number of cases in which the Bar disciplined incivility, the
particular incivility at issue was sexual harassment. All but one of these cases
predated 2008 and, hence, the new mandatory civility rules. The SBA prosecuted a number of these cases between 1997 and 2006 under the general rules
prohibiting lawyers from having interests that conflict with those of their clients163 and for demonstrating an “offensive personality” in violation of a lawyer’s duties and obligations:164
158
Id. at 2-3.
Id. at 3.
160 Hearing Officer’s Report at 1, In re William R., No. SB-08-0052-D, 2007 WL 5869796
(Ariz. Disp. Comm’n Dec. 10, 2007).
161 In re William R., No. 06-0588 (Ariz. Disp. Comm’n Apr. 23, 2007).
162 Id.
163 See In re William P., 951 P.2d 889, 891 (Ariz. 1997) (“Clearly, sexual harassment by a
lawyer serves the lawyer’s interest and not the client’s.”).
164 It may seem odd that instances of sexual harassment or misconduct would be disciplined in
such a roundabout way, as conflicts of interest or offensive personality, but sexual harassment is
not explicitly prohibited or addressed under the Arizona Rules of Professional Conduct, nor
included in the definition of professional misconduct. In fact, the Arizona Supreme Court in 1994
refused to adopt a proposed rule that would have expressly prohibited lawyers from sexually
159
2013]
CIVILITY FOR ARIZONA LAWYERS
491
• William P. was censured and placed on probation for one
year for a finding that he sexually harassed two domestic
relations clients by making sexually oriented comments and
by soliciting sexual favors in exchange for continued legal
services.165 He was found to have violated Rule 41(g) and
ER 1.7.166
• John M. was censured for violating Rule 41(g) and Ethical
Rule 1.7 for engaging in misconduct while representing a
female client in a domestic relations matter.167 Mr. M.
made personal inquiries of the client that were of a sexual
nature and “embrac[ed] her upon arrival and departure,
which made the client uncomfortable.”168 Following a settlement conference, the client indicated she planned to have
breast augmentation surgery and asked Mr. M. if she could
expend community money on such a procedure.169 Mr. M.
advised the client, and then asked if he could view her body
before and after the procedure.170 He continued to ask specific questions of a sexual nature regarding the proposed
surgery and engaged in other general commentary that also
was of a sexual nature.171 On at least three occasions, Mr.
M. contacted the client at her home following these conversations and asked her to meet him before or after business
hours at his office.172 The client declined and then terminated the representation, believing that Mr. M. “had interharassing a client, because the court believed the issue was already sufficiently covered under the
existing rules. Id. at 891. It is fair to question whether an attorney’s sexual harassment of anyone,
client or otherwise, should be specifically addressed under the Rules of Professional Conduct or
added to the definition of professional misconduct—at the very least to emphasize the seriousness,
and the intolerability, of the behavior. But that is a discussion beyond the scope of this Article.
For present purposes, it is simply worth noting that attorney discipline for sexual harassment
currently is imposed under the same rules the Bar has used to discipline rude, insulting, and other
offensive conduct.
165 Id. at 891-92.
166 At the time of this case, Rule 41 still prohibited “offensive personality” rather than unprofessional conduct, and it was under the older language that William P. was disciplined. Id.
167 In re John M., No. SB-02-0043-D, 2002 Ariz. LEXIS 36, at *2-3 (Ariz. Disp. Comm’n
Mar. 5, 2002).
168 Id.
169 Id.
170 Id.
171 Id.
172 Id. at *3-4.
492
PHOENIX LAW REVIEW
[Vol. 6:465
ests in her that went beyond the normal attorney/client
relationship.”173
• William S. was suspended for thirty days, placed on probation for two years, and required to participate in the State
Bar Member Assistance Program after he knowingly made
inappropriate, sexually suggestive statements to two domestic relations clients.174 He received compounded discipline
by knowingly disobeying the rules and violating a court
order.175
• Harrison L. received an informal reprimand for making
unwelcome sexual advances toward his employee, thereby
violating Rule 41(g) by exhibiting an offensive
personality.176
• Edward L. was censured and placed on one year’s probation, with terms requiring participation in the Law Office
Management Assistance Program and the Member Assistance Program, after he made inappropriate comments to his
client during the representation, attempted to kiss the client,
and touched her inappropriately in an attempt to engage in a
sexual relationship with her.177 In addition, he attacked his
client’s character orally and in writing.178 The censure was
imposed for violations of Rule 41(g) and ER 1.7(a)(2) (conflict of interest).179
c. Bar Admission Denied for Incivility Before 2008
At least one applicant has been denied admission to the Arizona State Bar
for incivility exhibited during a court proceeding.
• In 1976 and again in 1983, long before Arizona’s adoption
of mandatory civility rules, Edward R. was denied admis173
Id. at *4.
In re William S., No. SB-05-0026-D, 2005 WL 6317911, at *1 (Ariz. Disp. Comm’n 2005);
Amended Hearing Officer’s Report and Recommendations at 1, 9, In re William S., No. SB-050026-D, 2004 WL 5730524, at *1, 9 (Ariz. Disp. Comm’n Dec. 6, 2004).
175 Id. at 8.
176 In re Harrison L., No. 04-1951 (Ariz. Disp. Comm’n Oct. 5, 2005).
177 In re Edward L., No. SB-08-0076-D, 2008 WL 5340036, at *1, 4 (Ariz. Disp. Comm’n Feb.
21, 2008); Disciplinary Commission Report at 2, In re Edward L., No. SB-08-0076-D, 2008 WL
5340037 (Ariz. Disp. Comm’n May 16, 2008) [hereinafter Disciplinary Commission Report].
178 Disciplinary Commission Report, supra note 177, at 2.
179 Id. at 3.
174
2013]
CIVILITY FOR ARIZONA LAWYERS
493
sion for lack of mental fitness.180 Notwithstanding a prior
ruling on the matter, he continued to file unwarranted, vexatious, and harassing actions; used “intemperate, provocative
language and epithets”; exhibited “lack of control, restraint,
and civility”; and made a practice of “vilifying” those who
opposed him.181 The court in its decision stated that lawyers are required to “exercise restraint in language and deed
while acting as lawyers, particularly in relation to
litigation.”182
d. Cases in Which Discipline was Not Imposed for Incivility Before
2008
There are at least two older cases, decided before the Arizona Supreme
Court amended its Rules to make incivility expressly subject to discipline, in
which an attorney who was disciplined for other misconduct was not disciplined for incivility. One involved incivility during an appellate proceeding,
while the other involved incivility in depositions.
• Joseph I., a Texas attorney who was admitted pro hac vice
to practice in Arizona in a civil matter, filed documents on
appeal making numerous derogatory and unfounded
remarks about appellate judges, including statements that
the judges were “abysmally ignorant,” gambled from the
bench on the outcome of the case, exhibited bias and
prejudice against Mr. I. and his clients, and ruled based in
part on their desire to protect the trial court judge.183 He
characterized their findings as disingenuous and less than
candid, and claimed one judge was not competent to hear
the case.184 The Disciplinary Commission upheld the Hear180
In re Edward R., 680 P.2d 107, 108-09 (Ariz. 1983) (Application for Admission to the Bar).
Id. at 118.
182 Id. at 112. The Edward R. decision contains a reference to former DR 7-106(C)(6), Rule
29(a), Ariz. R. Sup. Ct., which said a lawyer shall not “[e]ngage in undignified or discourteous
conduct which is degrading to a tribunal.” Id. at 112. The Arizona Supreme Court in Edward R.
also quoted and concurred with this statement by the Supreme Court of Maine in Application of
Feingold, 296 A.2d 492, 500 (Me. 1972) (citations omitted): “Turbulent, intemperate or irresponsible behavior is a proper basis for the denial of admission to the bar.” Id. at 114.
183 See Disciplinary Commission Report at 9, In re Edward V., No. SB-08-0085-D, 2008 WL
5340105 (Ariz. Disp. Comm’n June 26, 2008) (No. 06-1473), 2008 WL 5340103 (quoting in part
In re Joseph I., No. SB-97-0012-D (Ariz. Disp. Comm’n 1997)). In re Joseph I., No. SB-97-0012D, 1997 Ariz. LEXIS 39, at *1 (Ariz. Disp. Comm’n Mar. 13, 1997).
184 See Disciplinary Commission Report at 9, In re Edward V., No. SB-08-0085-D, 2008 WL
5340105.
181
494
PHOENIX LAW REVIEW
[Vol. 6:465
ing Committee’s finding that calling judges “abysmally
ignorant” was unprofessional but did not rise to the level of
an ethical violation.185 The remaining statements, however,
were found to constitute violations of the ethical rules
involving dishonesty because they were unsubstantiated and
were made in reckless disregard for their truth or falsity.186
The supreme court censured Mr. I. on that basis alone.187
• Harold H. attended depositions taken in 2005 by his opposing counsel.188 During one deposition of Mr. H’s expert
witness, in referring to opposing counsel, Mr. H. said,
“Excuse me. Do you have a shit-eating grin on your face,
Cindy?”189 Later, during a discussion of whether opposing
counsel would allow Mr. H. to question his own expert witness during the time permitted for opposing counsel’s deposition, Mr. H. said to opposing counsel, “Listen, don’t lead
me around the bush. I’m asking you for a reasonable
amount of time. Stop being a pig about it. If I want to have
15 minutes or half an hour in order to ask questions, you
ought to give it to me, period.”190 At that point, the deposition had already taken approximately seven hours.191 In a
subsequent deposition in 2006, Mr. H. referred to a court
order stating that he could not conduct ex parte interviews
of former employees of the opposing party.192 Mr. H. said,
“I do not believe this [order] comports with the law of Arizona and it sounds more like a neo-Nazi type determination.”193 For these episodes of incivility, the Hearing
185
See id.
In re Joseph I., No. SB-97-0012-D, 1997 Ariz. LEXIS 39, at *1 (Ariz. Disp. Comm’n Mar.
13, 1997).
187 Id. It is interesting to note that, although there is absolute immunity from liability for
defamation for false and defamatory statements made in the course of judicial proceedings, Bailey
v. Superior Court, 636 P.2d 144, 146 (Ariz. Ct. App. 1981), there is no immunity from Bar
discipline.
188 Disciplinary Commission Report at Exhibit A, at 27, In re Harold H., SB-10-0110-D (Ariz.
Disp. Comm’n Nov. 3, 2010), available at http://www.azcourts.gov/Portals/36/2010_Scanned/
DCReports/HyamsDCrpt912010.pdf. Although the Hearing Officer’s report was issued after the
new, mandatory civility rules took effect, it reflected discipline imposed for earlier misconduct
under the old rules.
189 Id.
190 Id.
191 Id.
192 Id. at 28.
193 Id.
186
2013]
CIVILITY FOR ARIZONA LAWYERS
495
Officer found Mr. H. had engaged in unprofessional conduct, but that the conduct did not violate any Ethical
Rule.194 The Hearing Officer ordered a censure followed
by three years of probation with conditions for other violations of the Ethical Rules, including undue delay, filing frivolous pleadings, and other misconduct; however, there was
no discipline imposed for the instances of incivility.195
2. Cases Involving Incivility Plus Other Misconduct: After 2008
Since the new rules mandating professionalism and civility became effective on January 1, 2008, there has been more frequent prosecution of cases that
involve incivility and other misconduct. These include incivility outside the
context of judicial proceedings or interactions with law enforcement agencies,
and all have resulted in discipline.
a. Discipline Imposed for Incivility After 2008
• Rosemary C. consented to a four-year suspension after a
finding that she engaged in multiple instances of negligence
with clients as a result of being under the influence of alcohol and, in some cases, after being incarcerated for driving
under the influence of alcohol.196 One instance of incivility
was included in the charges for which she agreed to be disciplined: Ms. C. refused to have any communication with
the judge during a settlement conference at which she was
impaired by alcohol.197 This was determined to be a violation of Rule 41(g).198
• Eric S. was reported in 2011 for directing “outbursts” via email toward a prosecutor, turning his back to the judge, and
taunting the prosecutor during a court hearing.199 This conduct, addressed along with many other types of ethical violations committed on multiple occasions, resulted in a
finding that Mr. S. engaged in unprofessional conduct in
194
Id. at 40.
Id. at 30-46.
196 In re Rosemary C., No. PDJ 2011-9088, 2011 WL 9368596, at *1 (Ariz. Disp. Comm’n
Dec. 15, 2011).
197 Id.
198 Id.
199 In re Eric S., No. PDJ-2011-9070, 2011 WL 9368633, at *1 (Ariz. Disp. Comm’n Jan. 1,
2011).
195
496
PHOENIX LAW REVIEW
[Vol. 6:465
violation of Rule 41(g).200 He received a reprimand, two
years of probation, and mandatory referral to the Member
Assistance Program and the Law Office Management Assistance Program.201
• Donald Y. was suspended in 2012 for thirty days, placed on
two years’ probation, and ordered to participate in the Member Assistance Program after he violated Rule 41(g) and ER
8.4.202 Mr. Y. represented himself in a divorce proceeding
and bypassed opposing counsel to communicate directly
with his wife for negotiation and execution of a settlement
agreement.203 Among the communications with his wife,
his wife’s sister, and his wife’s counsel were numerous emails in which Mr. Y. referred to his wife as “dumb,” a
“bitch,” and “full of shit.”204
• Thomas W. consented in 2012 to discipline for a variety of
ethical violations.205 The discipline included suspension for
one year, probation for two years after the suspension
ended, and payment of sanctions.206 The ethical violations
included filing frivolous pleadings, violating trust account
ethics on multiple occasions, and exhibiting unprofessional
conduct in violation of Rule 41(g).207 This unprofessional
conduct involved e-mails Mr. W. sent to opposing counsel
containing uncivil statements such as, “You, sir, are the
most spineless excuse for a lawyer that I have had the misfortune to be exposed to,” and “No one could reasonably be
that stupid. And, yes, I mean you.”208
• Mark H. in 2012 consented to disbarment for a variety of
unethical acts, including practicing law while suspended,
personally benefitting from a matter involving a conflict of
200
Id.
Id.
202 In re Donald Y., No. PDJ-2011-9064, 2011 WL 9368643, at * 1 (Ariz. Disp. Comm’n Jan.
1, 2011).
203 Id.
204 See Agreement for Discipline by Consent, In re Donald Y., No. 11-0204, 11-1119, ¶ 7(a)(b), 7(d), 9(d) (Ariz. Feb. 27, 2012) (on file with author).
205 In re Thomas W., No. PDJ 2011-9065, 2012 WL 5286905, at *1 (Ariz. Disp. Comm’n
June 1, 2012).
206 Id.
207 Id.
208 In re Thomas W., No. PDJ 2011-9065 (Ariz. Disp. Comm’n Apr. 23, 2012).
201
2013]
CIVILITY FOR ARIZONA LAWYERS
497
interest, and performing other serious acts.209 One of the
charges involved going to his client’s home and harassing
the client and the client’s family members over an unpaid
bill, which was found to be unprofessional conduct in violation of Rule 41(g).210
b. Discipline Imposed for Incivility Involving Sexual Harassment
After 2008
There has been only one incivility case involving sexual harassment since
the adoption of the new rules.
• Theodore A. committed sexual harassment and other forms
of judicial misconduct while serving as a city court magistrate between 2008 and 2010.211 The victim of his
unwanted attentions was a female attorney assigned to cover
cases in his courtroom.212 Mr. A.’s inappropriate conduct
toward the attorney resulted in a formal investigation that
substantiated the victim’s claims of sexual harassment and
retaliation.213 After Mr. A. had been censured by the Commission on Judicial Conduct and permanently enjoined from
holding judicial office in Arizona, the State Bar recommended that he be separately disciplined for violating the
rules governing his conduct as a lawyer.214 Mr. A. admitted
that his sexually inappropriate acts violated ER 8.4 and Rule
41(c) and (g).215 The supreme court suspended Mr. A.’s
license to practice law for two years, citing his violation of
the Oath of Admission, Creed of Professionalism, and Rules
of Professional Conduct.216
209 See In re Mark H., No. PDJ 2012-9038, 2012 WL 5286895, at *1 (Ariz. Disp. Comm’n
May 10, 2012).
210 Consent to Disbarment, In re Mark H., PDJ-2012-9038 (Ariz. Disp. Comm’n May 10,
2012).
211 In re Theodore A., 257 P.3d 167, 168-69 (Ariz. 2011).
212 Id.
213 Id. at 169.
214 Id.
215 Id. at 169-70.
216 Id. at 173-74.
498
PHOENIX LAW REVIEW
[Vol. 6:465
3.
Cases Involving Incivility Without Other Misconduct Before and
After 2008
Although comparatively fewer in number, there also have been lawyer discipline cases in Arizona—both before and after the 2008 rules change—that
involve incivility without allegations of other misconduct.
a. Discipline for Incivility Alone Before 2008 Rule Change217
In a handful of cases, Arizona attorneys received formal or informal discipline solely for instances of unprofessional conduct involving incivility before
the rules mandating civility were adopted in 2008. Like the older cases involving incivility plus other misconduct, these cases, too, were decided under ER
8.4 and the former version of Rule 41(g), and they likewise involved incivility
during judicial proceedings.
217 Like lawyers, judges in Arizona also have been disciplined for incivility. In the following
examples, all of which occurred before the 2008 rule changes, the Arizona Commission on
Judicial Conduct—rather than the SBA—imposed discipline for uncivil conduct by judicial
officers:
• In In re Ackel, 745 P.2d 92, 94-96, 101 (Ariz. 1987), the supreme court publicly
censured a justice of the peace who used profanity to describe an absent litigant and
used sexual innuendo toward a litigant. The court determined that censure was
justified because this justice of the peace had received a prior, similar complaint and
had regularly used endearing terms toward and had inappropriate physical contact
with women.
• In In re Flournoy, 990 P.2d 642, 643, 646-47 (Ariz. 1999), another judge was
suspended for six months when, in addition to engaging in other wrongful behavior,
he exhibited frequent outbursts of temper in the courtroom, had reacted violently and
made derogatory and cruel comments when approached by a clerk about a problem,
“made inappropriate comments about the physical attributes of female lawyers and
court staff,” and the court noted past disciplinary admonishment for making
gratuitous and unnecessary remarks to the parents of a victim, making insensitive
remarks to a criminal defendant, and making inappropriate comments to a litigant.
• In In re Goodfarb, 880 P.2d 620, 621-622 (Ariz. 1994), a judge was suspended for the
rest of his term on the superior court when he was found to have used racially
inflammatory language in connection with a hearing in one criminal case and profane
language in another case, despite prior admonition and prior reprimand.
• In In re Lehman, 812 P.2d 992, 993-94 (Ariz. 1991), a justice of the peace was
publicly censured after his term had expired (so that the more onerous sanctions of
suspension or removal were not possible) after he told a sheriff’s deputy that he
didn’t give “a fucking, flying, shit” about what prompted the arrest and “didn’t give a
fuck” that the deputy didn’t like the language he was using. Id. In addition, in the
course of conducting a judicial proceeding in a case involving a person charged with
a sex crime, the judge remarked to prosecutors and law enforcement officers that he
did not think much of the charges since everyone knew “that the girls in Duncan are
easy.” Id.
2013]
CIVILITY FOR ARIZONA LAWYERS
499
• Clifford S. was censured in 1997 for comments he made in
open court.218 While the court commissioner was out of the
courtroom, Mr. S. turned to the gallery and made numerous
inappropriate and disparaging personal remarks about the
commissioner.219
• David M. was disciplined in 2004 for incivility in a case in
which he represented a client in a divorce matter.220 Following a contentious court proceeding, Mr. M. made a verbal threat of physical violence to the opposing party, who
subsequently obtained an order of protection against him.221
Mr. M. was suspended for thirty days and placed on probation for a year for engaging in conduct prejudicial to the
administration of justice under Ethical Rule 8.4(d), and for
failing to abstain from offensive personality under former
Rule 41(g).222
• Glenn B., in another 2003 case, was given an informal reprimand for engaging in an angry and exceptionally profane
confrontation with opposing counsel at the office of the
other lawyer.223 Mr. B. was reprimanded for a finding that
he violated Rule 41(g) and ER 8.4.224
b. Discipline for Incivility Without Other Misconduct After 2008
Recent cases, involving conduct occurring after adoption of the new mandated civility rules, demonstrate that the new rules are being enforced; in one
case, the rule was enforced for conduct beyond the context of the courtroom,
the law office, or an interaction with law enforcement.
• Michael M. was censured in 2011 after he appeared in justice court to represent a client in a forcible detainer
218 See Disciplinary Commission Report at 9, In re Edward V., No. SB-08-0085-D, 2008 WL
5340103 (Ariz. Disp. Comm’n June 26, 2008) (citing In re Clifford S., No. SB-98-0061 (Ariz.
Disp. Comm’n May 2, 2008)).
219 Id.
220 Hearing Officer’s Report and Recommendation at 1, In re David M., No. SB-04-0120-D,
2004 WL 5739471, at *1 (Ariz. Disp. Comm’n Oct. 29, 2004).
221 Id.
222 Id. at 2-3.
223 In re Glenn B., State Bar file no. 03-2134. The 2003 version of Rule 41(g) still proscribed
“offensive personality.” See also In re Glenn B., Nos. 02-1070, 02-1628, 02-2066, 2004 WL
5730517, at *2 & n.1 (Ariz. Disp. Comm’n Aug. 16, 2004).
224 In re Glenn B., State Bar file no. 03-2134.
500
PHOENIX LAW REVIEW
[Vol. 6:465
action.225 Opposing counsel claimed, and the justice of the
peace confirmed, that Mr. M. could not appear because he
was suspended from practicing law.226 The justice of the
peace continued the hearing and ordered Mr. M. to pay
opposing counsel’s attorney fees as a sanction.227 Afterward, Mr. M. wrote a letter to the judge, for which he was
eventually censured.228 The letter was “offensive and arrogant in its tone,” and was deemed by the hearing officer to
be disrespectful and unprofessional.229
• John B., during a court proceeding in 2009, engaged in
behavior he later admitted was rude and wrong.230 While
opposing counsel was addressing the court, Mr. B. yelled at
her and told her to “shut up.”231 He then lunged at counsel
and had to be restrained by security officers.232 After Mr.
B.’s disciplinary hearing, the Hearing Officer expressly referenced the comment to the 2007 Rule 41(g) amendment,
which directed the reader to Rule 31(a)(2)(E) for the definition of “unprofessional conduct.”233 The definition
included “substantial or repeated violations of the Oath of
Admission to the Bar or the Lawyer’s Creed of Professionalism of the State Bar of Arizona.”234 The Hearing Officer
also noted that the Creed states, “With respect to opposing
parties and their counsel: I will be courteous and civil, both
in oral and in written communication,” and quoted the portion of the Creed that states, “With respect to the courts and
other tribunals: I will be an honorable advocate on behalf of
my client, recognizing, as an officer of the court, that unprofessional conduct is detrimental to the proper functioning of
225 Disciplinary Commission Report at Exhibit A, at 4, In re Michael M., No. SB-11-0005-D
(Ariz. Disp. Comm’n Feb. 1, 2011), available at http://www.azcourts.gov/Portals/36/2010_
Scanned/DCReports/MorrisonDCrpt11242010.pdf.
226 Id.
227 Id.
228 Id. at 5, 14.
229 Id.
230 In re John B., No. 09-1781, Exhibit A, at 5 (Ariz. Disp. Comm’n Feb. 9, 2011), available at
http://www.azcourts.gov/Portals/36/2011Scanned/DCreports/BantaDCrpt292011.pdf.
231 Id. at 5.
232 Id.
233 Id. at 11.
234 Id.
2013]
CIVILITY FOR ARIZONA LAWYERS
501
our system of justice.”235 Finally, the Hearing Officer
quoted the Oath of Admission to the Bar, which states in
part, “I will maintain the respect due to courts of justice and
judicial officers” and “I will abstain from all offensive conduct.”236 The Hearing Officer found the conduct repetitive
because Mr. B. not only yelled at opposing counsel to “shut
up” but also aggressively moved towards her, frightening
spectators and prompting a justifiable response from law
enforcement officers who were present.237 Then, when the
officers approached Mr. B. and opposing counsel asked the
judge for a contempt finding, Mr. B. stated, “God damn
it.”238 The Hearing Officer concluded that unprofessional
conduct had been clearly and convincingly established in
this case.239 The Disciplinary Commission accepted the
Hearing Officer’s findings of fact, and in June 2011, the
Arizona Supreme Court ordered that Mr. B. be suspended
for six months, and on probation for two years thereafter.240
• The same John B. was disciplined in a separate 2011 case
for disturbingly similar conduct.241 During a trial in January of that year, Mr. B. interrupted, talked over, and argued
with the judge.242 His overly aggressive cross-examination
of a law enforcement witness, which included name-calling
and disparaging characterizations of the witness, was found
to have been abusive.243 In the ensuing disciplinary proceeding, Mr. B. admitted his behavior had been disrespectful to the judge and the witness, disruptive to the tribunal,
and prejudicial to the administration of justice.244 For this
episode of uncivil and unprofessional conduct, the presiding
235
Id. at 11-12.
Id. at 12.
237 Id.
238 Id.
239 Id.
240 Id. at 1; In re John B., No. SB-11-0044-D (Ariz. 2011).
241 This was actually the third case in which John B. was disciplined for incivility. In the first,
he was censured in 2005 and placed on probation for one year. In re John B., No. SB-05-0003-D,
2005 WL 6317938, at *1 (Ariz. Disp. Comm’n Mar. 23, 2005).
242 In re John B., No. PDJ 2011-9032 (Ariz. Disp. Comm’n June 15, 2011), available at http://
azcourts.gov/pdj/Decisions/OCTOBER2011.aspx.
243 Judgment and Order, In re John B., No. PDJ 2011-9032 (Ariz. Disp. Comm’n Oct. 3, 2011)
(on file with author).
244 Id.
236
502
PHOENIX LAW REVIEW
[Vol. 6:465
disciplinary judge ordered Mr. B.’s license suspended for
six months but allowed the suspension to run concurrently
with his other six-month suspension imposed less than four
months earlier.245
• Meyer Z., whose earlier discipline cases are discussed
above,246 faced a new charge after the 2008 rule change.247
This case involved a name-calling incident in which, while
checking on the status of a request for medical records, Mr.
Z. called a hospital records employee a “slut” or a “slug.”248
The Disciplinary Hearing Panel noted that Mr. Z had a past,
similar history, and thus believed the complainant’s allegation that Mr. Z used the word “slut.”249 In a second episode, Mr. Z. used vulgar language when requesting records
from a surgical center.250 He told the records clerk he was
so excited about the prospect of calling back the following
day, he “just came all over [him]self.”251 And, when he
called again the next day, he identified himself to the same
employee as “Maurie Sieman.”252 In yet another uncivil
episode, Mr. Z. became frustrated during a meeting with clients, raised his voice, used expletives, and then told the clients to leave.253 His unprofessional and offensive conduct
led to a finding that he violated Ethical Rule 8.4, Rule
31(a)(2)(E), and Rule 41(g).254 In July 2012, the presiding
disciplinary judge imposed a one-year suspension.255
• A third case decided after the new, mandatory civility rules
took effect was not a lawyer discipline case but, nevertheless, included a finding of incivility by the Arizona Supreme
Court. In State v. Martinez,256 a capital murder case, the
defendant was convicted of several crimes including first245
In re John B., No. PDJ 2011-9032; id.
In re Meyer Z., 847 P.2d 106, 107 (Ariz. 1993).
247 In re Meyer Z., No. PDJ-2011-9067, 2012 WL 5286921, at *3 (Ariz. Disp. Comm’n Apr.
30, 2012); appeal docketed, No. SB-12-0037-AP (Ariz. Aug. 14, 2012).
248 Id. at 2-3.
249 Id.
250 In re Meyer Z., No. PDJ-2011-9067, 2012 WL 5286921, at *3.
251 Id. at 9.
252 Id.
253 Id. at 5.
254 Id. at 9.
255 Id. at 15.
256 State v. Martinez, 282 P.3d 409 (Ariz. 2012).
246
2013]
CIVILITY FOR ARIZONA LAWYERS
503
degree murder. The trial court had warned the prosecutor
during voir dire to “watch her conduct because she
‘tend[ed] to give a big sigh, audible sigh, and throw up [her]
hands and roll [her] eyes’ when the court ruled against
her.”257 After the first penalty phase concluded in a mistrial, the defense moved to strike the death penalty notice
because the prosecutor was constantly “rolling her eyes,”
“quipping,” “ad-libbing,” giving a “running commentary on
various events as they occur[red] during trial,” and “display[ing] irritation, displeasure or skepticism” over adverse
rulings by the court.258 The trial court denied both a motion
for mistrial and a later motion for new trial in which defense
counsel argued that the prosecutor had engaged in vouching
as well as ex parte communications “with the jury throughout the trial by making ‘various facial expressions.’”259
The Arizona Supreme Court affirmed the conviction but
warned that the prosecutor’s conduct was “inappropriate”
and “very troubling.”260 As the court explained:
Although the prosecutor’s conduct does not amount
to reversible error, we again strongly disapprove of
such courtroom behavior. Trial courts should
promptly address this type of misbehavior by warnings to counsel and other steps as may be appropriate. Arizona attorneys pledge to “maintain the
respect due to courts of justice and judicial
officers,” to “abstain from all offensive conduct,”
and to adhere to “a lawyer’s creed of professionalism.” Eye rolling, dramatic sighing, and other
expressions of displeasure in a courtroom violate
these standards. This is unacceptable behavior
from any attorney, but especially from a prosecutor,
who serves as a “minister of justice.”261
A review of these cases reveals that Arizona’s adoption of mandatory professionalism rules, including the express mandate for civility, makes a difference. In at least two older cases, lawyers were not disciplined for instances of
257
258
259
260
261
Id.
Id.
Id.
Id.
Id.
at 415.
at 415-16.
at 416.
(internal citations omitted).
504
PHOENIX LAW REVIEW
[Vol. 6:465
incivility that now would most likely result in discipline.262 The newer Meyer
Z. case demonstrates that discipline now may be imposed for uncivil conduct
occurring during the practice of law, even outside formal court proceedings and
official interactions. Additionally, hearing officers and courts can now cite the
more particularized professionalism and civility obligations as support for
imposing greater discipline when warranted.
VII.
IS ARIZONA DOING TOO MUCH OR TOO LITTLE TO ACHIEVE
CIVILITY IN THE LEGAL PROFESSION?
The SBA’s Professionalism Task Force recommended a three-party solution to the problem of incivility, enlisting the bench, the SBA, and the legal
educators.
In approving its Task Force’s recommendations, the SBA called upon
judges to hold lawyers accountable more frequently and to refer instances of
misconduct to the SBA.263 The SBA called upon itself to petition the Supreme
Court of Arizona to adopt new enforceable civility rules, to enhance and promote increased utilization of its Peer Review program, and to find additional
non-punitive ways to support civility among lawyers.264 Finally, the SBA
called upon the law schools to evaluate and report to the SBA about their
existing professionalism programs—to ensure that those programs supported
and nurtured the values that foster civility and professionalism—and to develop
further courses and co-curricular activities focused on professionalism and the
root causes of unprofessional behavior.265
The first recommendation—for the judiciary to take a more active role—
may or may not be fulfilled more frequently than in the past because judges are
extremely reluctant to get involved in what they perceive to be squabbles
between lawyers.266 Judges may view reporting lawyers to the SBA as a draconian measure and might also be concerned about the potential for backlash in
judicial retention elections. Yet the judiciary’s power to promote professionalism should not be understated. As the Professionalism Task Force observed:
[J]udges are in a unique position to stop or discourage unprofessional conduct when it occurs in their presence or is
brought to their attention. Over the years, too few judges have
involved themselves in issues of professionalism. But now,
262
See supra Part C.1.d and accompanying notes.
TASK FORCE REPORT, supra note 92, at 7-15.
264 Id. at 8-13.
265 Id. at 7-8.
266 Civility and the Practice of Law: Can They Coexist? (State Bar of Arizona live webcast
Nov. 8, 2012) [hereinafter Civility Webcast].
263
2013]
CIVILITY FOR ARIZONA LAWYERS
505
more than ever, Judges cannot stay on the sidelines. Judges
owe a responsibility to the Bar and to the integrity of the judicial process to address professionalism by setting a good
example and by addressing bad behavior when it occurs.267
In 2005, the Task Force and the SBA urged the Arizona Supreme Court to
provide leadership by: (1) encouraging the judiciary both to model and to insist
upon high standards of professional conduct; (2) training judges statewide how
to respond to lawyers’ unprofessional conduct in an “appropriate and measured” way; and (3) communicating a clear expectation that judges should
actively confront unacceptable behavior.268 For as long as incivility in the profession persists, these recommendations will remain pertinent and sound.
The second recommendation—for the SBA to urge the Supreme Court of
Arizona to adopt and then enforce new mandatory civility rules—is, fortunately, already fulfilled. The court has amended its rules, and the SBA now
sends most reports of incivility through peer review. The new intake system
and the peer review program together serve as a non-punitive means for promoting greater civility. It would be interesting to know how many reports of
incivility the SBA is now receiving and what percentage of those are referred to
peer review. In addition, it would be useful to compare recidivism rates
according to whether the misbehaving lawyer received a telephone call from
intake, peer review counseling, or actual discipline. Such data would permit an
empirical assessment of how well the current methods of enforcement are
working.
The third recommendation of the Task Force—the state’s law schools
should examine their curricula and report to the SBA on course offerings, cocurricular activities, and other efforts to teach and emphasize civility as an element of professionalism—also has been implemented.269
267
TASK FORCE REPORT, supra note 92, at 14.
Id. at 14-15.
269 The Sandra Day O’Connor College of Law at Arizona State University offers courses on
professional responsibility in which civility is addressed, including the following: Bridging the
Gap: Pathways to Success in Law School and the Profession; The Moral Leader; and Professional Responsibility. Interview with Judith Stinson, Assoc. Dean for Academic Affairs (Dec. 4,
2012). The James E. Rogers College of Law at the University of Arizona likewise offers courses
addressing civility, including: Professionalism in the Practice of Law; The Legal Profession;
Legal Ethics for Criminal Lawyers; and Legal Malpractice. Interview with Kirsten H. Engel,
Assoc. Dean for Academic Affairs (Dec. 4, 2012). The Phoenix School of Law also offers similar
courses, including: Professional Responsibility and Law Office & Client Management. Course
Descriptions, PHOENIX SCH. OF L., http://www.phoenixlaw.edu/downloads/Course_Descriptions.
pdf (last visited Apr. 1, 2013). The deans of all three schools have informed Amelia Cramer that
faculty at their school are encouraged to incorporate discussions of professionalism and civility
into every course they teach. And each of the law schools has submitted a comprehensive profes268
506
PHOENIX LAW REVIEW
[Vol. 6:465
Yet despite these recommendations, rules, procedures, and classes, is there
progress toward increased civility by and among lawyers? The answer is
unclear.
Would law school classes specifically devoted to civility lead to improvement? The answer is: possibly. A greater overall emphasis on the imperative
of civility during the formative years of law school might make a difference as
well—though this could be difficult to measure.
Would further training, modeling, and mentoring make a difference? It
seems so. The authors believe it to be so, as do a number of commentators,270
state bar associations,271 professional organizations,272 and law schools.273
sionalism report to the SBA. Interview with Patricia Sallen, Dir. of Special Servs. & Ethics/
Deputy Gen. Counsel, State Bar of Ariz. (Dec. 4, 2012).
270 E.g., Douglas S. Lang, Why Civility Matters—It Is the Essence of Professionalism, in CIVILITY MATTERS 12, 13 (Am. Bd. of Trial Advocates, 2011) (“In my estimation, the values of our
profession are learned by observing and working with other lawyers. . . . This process, at its
finest, is what is called mentoring. . . . The need for mentoring has become almost an ‘emergency’ today. . . . [This] is where our professional organizations must step in [to] . . . supplement
or even serve as the central supply of mentoring and practical education needed by law students
and beginning lawyers.”); see also Smith, supra note 43, at 11; Winder & Hale, supra note 81, at
21.
271 E.g., in 2009 the Utah State Bar launched a mandatory mentoring program for all new,
active members of the Utah bar who have not practiced law for at least two years in another
jurisdiction. According to the Bar’s website, the Utah New Lawyer Training Program (NLTP)
“matches new lawyers with more experienced lawyers for one-on-one guidance in acquiring the
practical skills, judgment, professionalism, ethics and civility to practice in a highly competent
manner. The NLTP also provides a means for all Utah attorneys to learn the importance of organizational mentoring, including the building of developmental networks and long-term mentoring
relationships.” New Lawyer Training Program, UTAH ST. B., http://www.utahbar.org/nltp/Welcome.html (last visited Apr. 1, 2013). As another example, the SBA has established a voluntary
mentorship program “to foster informal professional relationships between experienced and lessexperienced attorneys and also to help third-year law students gain insight about the legal profession and better prepare them for the practice of law.” Mentor Committee, ST. B. ARIZONA, http://
www.azbar.org/sectionsandcommittees/committees/mentorcommittee (last visited Apr. 1, 2013).
272 E.g., The American Inns of Court members include “an amalgam of judges, lawyers, and in
some cases, law professors and law students.” General Information, AM. INNS COURT, http://
www.innsofcourt.org/Content/Default.aspx?Id=2 (last visited Apr. 1, 2013). The Inns assign each
less-experienced member “to a more-experienced attorney or judge who acts as a mentor and
encourages conversations about the practice of law.” Id. A current total of 350 local groups meet
regularly for events and activities designed to improve the skills, professionalism, and ethics of
the bench and bar. Message from Our President, AM. INNS COURT, http://home.innsofcourt.org/
about-us/get-to-know-the-american-inns-of-court/message-from-our-president.aspx (last visited
Apr. 1, 2013).
273 E.g., the Nelson Mullins Riley & Scarborough Center on Professionalism at the University
of South Carolina School of Law, founded in 1999, has been described as “[o]ne of the most
positive and active programs that fosters the development of professionalism through mentoring,
both in the law school student and in the beginning lawyer.” Lang, supra note 270, at 13; Nelson
Mullins Riley & Scarborough Center on Professionalism: About the Center, UNIV. SOUTH CARO-
2013]
CIVILITY FOR ARIZONA LAWYERS
507
“The bench and the bar can create an environment in which professionalism
can flourish . . . [and] it is the responsibility of individual judges and lawyers to
demonstrate this characteristic in the performance of their professional and personal activities.”274 Certainly, imparting legal community norms and standards
to new lawyers, and creating an enhanced sense of community among practitioners, can have a significant effect.
Would it help to gather the disparate elements of Arizona’s new rules—the
Oath, the Creed, and the provisions of Rules 31, 41, and 54—and consolidate
them into a single, clear ethical rule, placed within the Rules of Professional
Conduct under Arizona Supreme Court Rule 42? It could not hurt. To the
extent that awareness of the civility mandate is a prerequisite to compliance,
simplifying the stated requirement and making it easier to find could only be an
improvement.
The authors, therefore, recommend the following actions to further compliance with, and enforcement of, Arizona’s civility requirement for lawyers.
A. Consolidate Arizona’s Civility Mandate into a Single Ethical Rule
The elements of the Oath, the Creed, and Arizona Supreme Court Rules 31,
41, and 54 collectively comprise Arizona’s civility mandate. These elements
are currently scattered, composite, and indirect. To understand that “unprofessional conduct” encompasses incivility, one must separately consult not only
Rule 31(a)(2)(E), but also the Oath and the Creed, both of which address many
other kinds of conduct as well as incivility. Instead of directly commanding
civility, Rule 41(g) is phrased as a double negative, refraining from unprofessional conduct, which further obscures the requirement. To discover that civility is not only required, but enforceable through professional discipline,
requires reading Rule 54(i), which in turn leads back to Rule 31(a)(2)(E), in
which the circuitous definition of unprofessional conduct begins.
Instead of this convoluted construction,275 Arizona should consolidate its
civility requirement into a single, simply stated rule, and place it with the other
Rules of Professional Conduct under Rule 42. Language like this might work:
LINA, http://professionalism.law.sc.edu/about.php (last visited Apr. 1, 2013). According to the
Center’s website, besides helping to advance professionalism education and training at the University of South Carolina law school, the Center has also “developed a website to provide extensive
information concerning professionalism initiatives, hosted two national symposia, and begun
empirical research on professionalism issues, particularly mentoring programs.” Id.
274 NAT’L ACTION PLAN, supra note 40, at 2. Although the authors of the National Action Plan
do not agree with the premise of this Article that civility can be mandated, the authors of this
Article do agree with them that community standards enhance civility.
275 The current configuration of these rules, incorporating the Oath and the Creed, is attributable to the SBA’s urging the Arizona Supreme Court to adopt them in this fashion.
508
PHOENIX LAW REVIEW
[Vol. 6:465
When engaged in the practice of law, a lawyer must act with
civility, courtesy, and respect.
This clear, straightforward phrasing, logically and prominently placed with
the other ethical rules, would not only promote greater awareness of the mandate but would underscore its importance as a professional value that the Arizona Supreme Court will enforce through discipline if necessary.276 The State
Bar should petition the Court to adopt such an ethical rule.
B. Encourage Greater Reporting to the State Bar of Arizona
Anecdotal evidence suggests that uncivil behavior is underreported to the
SBA’s Lawyer Regulation Office. Perhaps understandably, some judges and
lawyers have expressed reluctance to refer other lawyers to the SBA.277 The
likeliest reasons for this reluctance are fear that the offender might be disciplined harshly, suffer disproportionate consequences, or engage in recrimination against the reporting judge or lawyer.
The first concern is largely unwarranted because a minor incivility incident
report in Arizona would simply lead SBA counsel in the Lawyer Regulation
Office to contact the reported lawyer. Assuming the lawyer acknowledged
inappropriate conduct and willingness not to repeat the conduct, the matter
would either be dismissed or the lawyer would be urged to voluntarily participate in the Peer Review Program as an alternative to prosecution. Here, the
reported lawyer would talk with a peer volunteer who could encourage her to
make amends for the incivility and could explore with her ways to avoid
repeating the mistake. Only lawyers who engage in serious or repeated incidents of incivility would ever be subject to prosecution and formal discipline.
The second fear—recrimination—is merely speculative, and is an insufficient reason for not reporting blatantly uncivil conduct. What one abides, one
encourages; lawyers and judges who do not confront another lawyer’s unacceptable behavior tacitly condone it. As Arizona lawyer and ethics commentator David Dodge sagely observed soon after the new rules took effect:
None of the Supreme Court’s new rules is going to be truly
effective unless the judiciary embraces them and reports lawyers to the State Bar and sanctions them under court rules.
And none of the State Bar’s efforts is going to be truly effective unless lawyers start reporting the obvious violations.
276 The ABA should include a professionalism rule mandating civility in the Model Rules of
Professional Conduct, so that more states could easily enforce civility simply by adopting the
Model Rules.
277 Civility Webcast, supra note 266.
2013]
CIVILITY FOR ARIZONA LAWYERS
509
There is a natural reluctance to report a fellow lawyer, especially for an isolated instance of unprofessional behavior. But
when bad behavior becomes a habit, even in the stressful situations in which we often find ourselves as lawyers, do not
expect a resolution of the problem unless you become a part of
the cure.278
In other words, unless each of us individually steps up and takes an active
role in implementing the solution now offered by the rules, the problem of
incivility is likely to persist. As the familiar saying goes: if one is not a part of
the solution, then he is part of the problem.279
Lawyers and judges must become better educated about the civility rules
and the SBA’s process for handling incivility complaints—especially the informal intake approach and the Peer Review Program. A wider understanding is
needed among all members that a lawyer who is reported to the SBA for rude,
obnoxious, or inappropriate behavior will not face discipline unless the
offender is unrepentant or the conduct is extreme or repeated. This understanding should lead to increased reporting, and ultimately greater civility, among
Arizona practitioners. The SBA should undertake further effort to educate lawyers and judges about the Peer Review Program and the Bar’s handling of
incivility complaints.
C. Gather Statistical Data
There is a need to collect statistical information about the number of incivility incidents reported to the Bar, the types of behavior reported, and the
disposition of the reports—through intake dismissal, peer review diversion, or
prosecution at bar discipline proceedings. The only way to know how well
Arizona’s new mandate is actually working is by compiling and analyzing this
type of quantitative information. The Bar should establish a database that will
allow it to determine and compare over time: (1) the different kinds of incivility reported, (2) the number and types of cases dismissed after having contact
with the attorney at intake, (3) the number and types of cases referred for peer
review, (4) the number and types of cases handled only with peer intervention,
278 David D. Dodge, When Lawyers Behave Badly: The “Z” Word, Civility & the Ethical
Rules, ARIZ. ATT’Y, Apr. 2008, at 20.
279 Charles Rosner is credited with authoring the saying, “If you’re not part of the solution,
you’re part of the problem” as a recruitment slogan for the Volunteers in Service to America
(VISTA) program in 1967. Adam Goodheart, Peter Manseau, & Ted Widmer, Paul Ryan, Black
Panther?, N.Y. TIMES (Aug. 12, 2012), http://campaignstops.blogs.nytimes.com/2012/08/12/paulryan-black-panther/.
510
PHOENIX LAW REVIEW
[Vol. 6:465
(5) the number and types of cases referred for discipline, and (6) the recidivism
rates with respect to each type of disposition.280
D. Each Lawyer Should Set an Example of Civility
Ultimately, each Arizona lawyer is responsible for creating and maintaining the culture of civility that is essential to the administration of justice and to
our privileged status as a self-regulating profession. Arizona lawyers must do
the best every day to set an example of civility by choosing words, actions, and
tone with care. No lawyer has been or will be perfect; however, the better each
does at setting the tone, the better the legal profession, the state, and the society
will be.
Some might argue there is no evidence that the current rules are working or
that implementing these suggestions will produce any improvement. The
authors believe there is evidence that the current rules are working—as discussed above—and that the refinements proposed in this Article can yield even
better results. There is little or no downside to implementing the suggestions.
The associated costs would be minimal, and it is hard to imagine any harm that
might be done. One will not know whether Arizona’s decision to stop merely
exhorting and begin enforcing civil behavior is an effective remedy for the
“civility crisis” in our profession unless and until this pioneering approach is
given the best possible chance to succeed. To do that, the SBA must fine tune
the current rules to make their requirements more clear, increase the willingness of judges and lawyers to report misbehavior, identify and remedy any
procedural deficiencies in enforcement, collect the data necessary to assess progress, and evaluate the results over a reasonable period of time.
VIII. CONCLUSION
“More civility and greater professionalism can only enhance the pleasure
lawyers find in practice, increase the effectiveness of our system of justice, and
improve the public’s perception of lawyers.”281
Because civility is vital to the peaceable resolution of disputes through our
system of justice, lawyers must arrest and reverse the much-lamented deterioration of civility in the legal profession. It is incumbent upon lawyers to do more
than just bemoan the decline of civility and to pay lip service to the need for
280 The SBA has budgeted for and plans to implement a new database program and case management system that will permit this sort of detailed tracking and improved statistical reporting.
See State Bar of Arizona 2013 Budget and Capital Expenditure Plan adopted by the Board of
Governors. (As president of the Board, during 2013, author Amelia Cramer has personal knowledge of the Bar’s Budget and Capital Expenditure Plan for that year.).
281 O’CONNOR, supra note 1, at 8.
2013]
CIVILITY FOR ARIZONA LAWYERS
511
improvement. Arizona’s decision in 2008 to begin treating rude and uncivil
behavior by attorneys as professional misconduct is a start; however, it is only a
start. Greater reporting of inappropriate behavior should help. Consolidating
Arizona’s rules mandating professionalism—including civility—into a single,
clear, easily located ethical rule should also help. The SBA should begin to
monitor and measure the level of reporting, the disciplinary methods employed,
the efficacy of those actions, and the recidivism statistics. Finally, as Arizona
lawyers, each must commit to act honorably, with maturity, restraint and dignity; to disagree, argue, and advocate without rancor or personal animus; and to
resist the temptation to respond in kind to rudeness or injustice. As there is
success, the system of justice will be strengthened and function more efficiently, and each lawyer will fulfill his or her professional obligation to uphold
the rule of law on which our peaceful, ordered society depends.