California civility rule meets its match in First Amendment

Despite much ink being spilled about civility, it appears as though one of the enforcement mechanisms may not have teeth. All standards of civility would seem to require attorneys at the very least not engage in bigotry when practicing law, even if it is directed at opposing counsel. At first glance, the current Rule of Professional Conduct 8.4.1 appears to insist that lawyers refrain from engaging in such discriminatory practices based on protected characteristics "in representing a client" and "in relation to a law firm's operations."  

However, one of the comments for Rule 8.4.1 restricts the rule's application based on First Amendment grounds. This complicates the application of the rule in situations where an attorney makes a bigoted remark about another attorney's cultural background, even when done during a recorded deposition.  

In other words, if an attorney is caught making a bigoted comment while practicing law, how is Rule 8.4.1 harmonized with First Amendment protections?  

Former Rule of Professional Conduct 2-400 

The State Bar's previous anti-discrimination rule, former Rule of Professional Conduct 2-400, required a judicial finding of discrimination before the State Bar could obtain jurisdiction over a matter. In pertinent part, former Rule 2-400(B) provided that "a member shall not unlawfully discriminate or knowingly permit unlawful discrimination on the basis of race, national origin, sex, sexual orientation, religion, age or disability in [the operation or management of a law practice]." Rule 2-400(C) provided that "[n]o disciplinary investigation or proceeding may be initiated by the State Bar against a member under this rule unless and until a tribunal of competent jurisdiction, other than a disciplinary tribunal, shall have first adjudicated a complaint of alleged discrimination and found that unlawful conduct occurred." 

The State Bar's discussion of the rule stated that "[i]n order for discriminatory conduct to be actionable under this rule, it must first be found to be unlawful by an appropriate civil administrative or judicial tribunal under applicable state or federal law. Until there is a finding of civil unlawfulness, there is no basis for disciplinary action under this rule." (Emphasis added.) 

Current Rule of Professional Conduct 8.4.1 

The requirement for a prior judicial determination of discrimination was eliminated by current Rule 8.4.1, making it unlawful to discriminate, harass, or retaliate against anyone based on a protected characteristic. 

Interestingly, Comment [4] to Rule 8.4.1 states that "[t]his rule does not apply to conduct protected by the First Amendment to the United States Constitution or by Article I, Section 2 of the California Constitution." In other words, protected speech outranks protected class. It is unclear whether the State Bar included this comment in order to avoid problems with the First Amendment; however, it is certainly a reasonable conclusion.

Generally, the First Amendment precludes lawyer discipline for offensive speech or expressive conduct of the type you allege absent facts demonstrating at least a substantial likelihood of material prejudice to an adjudicative proceeding. The State Bar did not explain what this "material prejudice to an adjudicative proceeding" standard means. It is reasonable to believe that an adjudicative proceeding is materially prejudiced simply by an attorney shamelessly making a bigoted statement. Regardless, no such "material prejudice" restriction appears in Rule 8.4.1.

In contrast, the Rule indicates that a lawyer would be subject to discipline if that lawyer were to engage in discrimination against an employee in the workplace, suggesting that the standard for employers was intended to apply to attorneys. Clearly, the First Amendment does not protect all speech. Hate speech and racial slurs have long been held to create liability for an employer.  

Illustrative examples  

A clear example of unprotected speech is present in the matter involving San Diego attorney Benjamin Pavone. In the Matter of Pavone, No. SBC-20-O-30496 (Cal. State bar Ct. Rev. Dep't Feb. 21, 2023). Pavone was sanctioned for misconduct after describing a female judge's ruling as "succubustic" in a court filing. The State Bar concluded that the term constituted gender-based bias and harassment. Pavone argued that this was in violation of his First Amendment Rights, but the Review Department upheld the recommended discipline. The Pavone matter occurred prior to the implementation of Rule 8.4.1. If similar conduct were to be evaluated under the rule, this kind of behavior would likely fall within the framework of harassment based on gender.

More recently, the State Bar investigated an elderly attorney for the use of insensitive language in internal communications towards replacement counsel who happened to be transgender. As part of their investigation, the State Bar requested respondent attorney to turn over files in connection with a fee dispute, which she ultimately won, with the new attorney who had demanded release of her entire attorney lien. As respondent's internal communications contained insensitive language, she was required to complete sensitivity training, as the language was considered potentially discriminatory.

Lack of enforcement  

Similarly, the State Bar should use the same standard in deciding whether to discipline attorneys pursuant to Rule 8.4.1(b). Otherwise, attorneys with bigoted views will only become emboldened, continue to engage in bigoted conduct and render civility guidelines meaningless. Instances in which an attorney's disgraceful conduct is met with no consequence set a false and dangerous precedent. Indeed, what would stop other attorneys from brazenly discriminating against opposing counsel based on protected characteristics or membership in a protected class?  

If civility standards are to be taken seriously, we must ensure that licensed attorneys will be held to the same baseline standard as employers.

It is important to note that the State Bar has yet to enforce discipline on attorneys in violation of Rule 8.4.1. It may well be that Rule 8.4.1 is either a rule that the State Bar just won't enforce; will only enforce it when the attorney accused of bigotry is a white cisgender male or will decline to enforce if the complainant is from a particular culture.  

Although Rule 8.4.1 initially engendered hope that attorneys would refrain from making bigoted comments to one another while engaged in legal discourse, it seems as though that hope is largely shattered.

Far from enforcing basic civility standards, it appears as though the State Bar has decided to shield attorneys who flaunt their bigotry from any negative consequences of their actions. Rule 8.4.1 appears to be a sham, declawed by the protection of the First Amendment even though the First Amendment does not exonerate employers in similar situations. More generally, it appears as though all attempts to enforce promotion of civility standards may be doomed.