Bias-driven incivility: What legal professionals need to know

Practitioners and the judiciary are duty-bound to ensure that our halls of justice provide equal justice to all. Accordingly, each member of the bar should be concerned about ensuring the judicial system is absent from bias.  Aiding in this endeavor is the relatively new mandatory continuing legal education (MCLE) on bias-driven incivility. AB 242 amended Section 6070.5 of the Business and Professions Code, requiring California Bar members to complete an MCLE unit in bias-driven incivility, which had its first compliance reporting period on Jan. 21, 2023. Further, AB 242 amended Section 68088 of the Government Code, which empowered the Judicial Council to develop training on bias-driven incivility for judges and subordinate judicial officers. 

Bias-driven incivility is uncivil conduct resulting from expressions of implicit and explicit bias including unconscious expression of an internal bias or covert manifestation of a discriminatory preference. Bias - a preconceived opinion about a member of a protected class - and particular bias-driven incivility, exists within our legal system, courtrooms, law firms, amongst counsel, in bar associations and volunteer activities, as well as in client representation.

Bias-driven incivility may occur during client advocacy, such as interrupting one's opposing counsel during discovery disputes or during oral arguments based on the manner, tone and content of the comments made. Such incivility can also occur through microaggressions - verbal or non-verbal, slights, snubs, or insults that communicate hostile, derogatory, or negative messages to target persons based solely upon their marginalized group membership, regardless of whether they were intentional. Bias-driven incivility takes into consideration power dynamics, such as those between a judge and attorney, a senior partner and their associate, or a bar association chair making verbal advances to member of the bar.

Attorneys who experience bias-driven incivility are more likely to leave the profession

Bias-driven incivility has resulted in a loss of stature and public respect for the legal profession. It has a uniquely harmful impact on the attorneys who experience it, making them more likely to leave the profession. To this day, the legal profession remains one of the least diverse professions in the nation. Beyond the Oath: Recommendations for Improving Civility, Initial Report of the California Civility Task Force, A joint project of the California Lawyers Association and the California Judges Association, September 2021 pages 174-180 (last visited March 31, 2025.) 

Let there be no misunderstanding - every practitioner and judicial officer in California is a member of a protected class. Thus, their right to be protected from bias equally applies to them, as does their duty to refrain from bias and guard the legal system against it. However, the data in California indicates that women and people of diverse backgrounds are still underrepresented in the practice of law.  And those who experience bias and bias-driven incivility are more likely to depart from the practice. Of approximately 196,000 active licensed attorneys in California in 2023, 35% were people of color, which is in great contrast to the 62% of California's population. Women are 44% of the bar population while making up approximately 50% of California's population. And the percentage of attorneys who identify as LGBTQIA+ is the same as the state population, 9%. Moreover, that same year, 25% of Californians report having at least one form of a disability while only 6% of attorneys report having a disability. 2023 Report Card, California State Bar Diversity Report Card (last visited March 31, 2025.)

Approximately 4,600 attorneys, on average, transition to inactive status each year in California, effectively relinquishing their ability to practice law.  With the exception of Black men and women, attorneys of color tend to be younger than their white counterparts when they transfer to inactive status. Notably, Asian, Eastern/North African, and Native Hawaiian/Other Pacific Islander women are among the youngest in this group. The most frequently cited factor influencing the decision to transition to inactive status in 2023 was "alternative work schedules/flexible hours," chosen by attorneys across gender and racial lines. However, "diverse colleagues/networks" was the most cited factor for Black attorneys. Other reasons described by all attorneys include practicing law in different states, leaving the legal profession altogether, seeking a career change, and personal reasons related to family and health. Profile of California's Inactive Attorneys, The State Bar of California, March 14, 2024. 

Officers of the court have a legal duty to refrain from bias-driven incivility

Officers of the California courts have a legal duty to refrain from engaging in bias-driven incivility, which includes the duty to address and prevent such incivility for judicial officers.

Judges are guided by Cannons of Judicial Ethics (e.g.: canon 3(B)(5) and 3(C)(1), A Judge Shall Perform the Duties of Judicial Officer Impartially, Competently, and Diligently), the California Supreme Court Committee on Judicial Ethics Opinions (e.g.: CJEO Formal Opinion 2020-15, Supervising Judge's Duties When a Party Complains about a Judge in a Pending Matter), and California Rules of Court (e.g.: Rule 10.20, Court's duty to prevent bias). They are overseen by the Commission on Judicial Performance which is mandated by the California Constitution. 

Legal practitioners are guided by California Rules of Professional Responsibility (e.g.: Rules 3.4 Fairness to Opposing Party and Counsel; 4.1 Truthfulness in Statements to Others; and 8.4.1 Prohibited Discrimination, Harassment and Retaliation). Attorney business owners and managing agents have a duty to comply with employment laws, including the Fair Employment and Housing Act. They also have a duty to comply with anti-discrimination laws as to clients/customers in accordance with the Unruh Civil Rights Act. Further, attorneys who engage in litigation with fee-shifting should be mindful that a lack of civility could result in a reduced attorney fee award. Snoeck v. ExakTime Innovations, Inc., 2023 WL 7014096 (Cal. Ct. App. 2023). 

 There are also tools available to both practitioners and the judiciary, including recently amended or newly added Judicial Council of California Civil Jury Instructions (CACI) on bias, which are applicable to any type of case. See CACI 113. Bias, a pre-trial instruction and concluding instruction 5030. Implicit or Unconscious Bias.

The bias-driven incivility MCLE, which appropriately notes the duties practitioners and judicial officers have to refrain from and protect against bias in the legal system, is just one tool to proactively address bias in the legal profession.