Justice Bedsworth Authors Revolutionary Opinion Demanding Civility

Justice Bill Bedsworth, a dedicated friend and supporter of CAL-ABOTA, a regular panelist on Civility Matters programs throughout the State and a long-time champion for civility, recently authored the groundbreaking, published opinion in the matter of Lasalle v. Vogel. Lamenting the fading of civility from the practice of law, drawing attention to past president Doug DeGrave’s, CAL-ABOTA-driven 2014 amendment to the State’s new attorney oath requiring that lawyers practice with “dignity, courtesy, and integrity," and calling upon all lawyers to restore professionalism in the practice of law. Justice Bedsworth has provided us with an artful, thoughtful and powerful tool to support our ongoing efforts to teach, train and insist upon civility and professionalism in litigation.   A copy of this opinion is available by clicking HERE on CAL-ABOTA’s website, and it is suggested that it become required reading for attorneys, paralegals and law students across the nation.

Notably, at the Hawaii Conference in 2018, Justice Bedsworth became the first recipient (and namesake) of the CAL-ABOTA William Bedsworth Judicial Civility Award which was presented to him by then president Bill Smith. This opinion by Justice Bedsworth emphasizes the appropriateness of that recognition and places an exclamation mark on the most well-deserved award. 

Below is a summary of the Lasalle opinion as written by Wendy Dowse, an appellate practice partner with the law firm of Lewis Brisbois Bisgaard & Smith.

Ghost Ships, Greek Sea Monsters, and a Legal Standard for Civility With Teeth

The court of appeal has had enough of incivility in the legal profession. In Lasalle v. Vogel (June 11, 2019) No. G055381, __Cal.App.5th__, Division Three of the Fourth District Court of Appeal held that “[t]he policy of this state is that the parties to a lawsuit ‘shall cooperate.’ Period. Full stop.” (Slip opn., p. 2, quoting Code Civ. Proc., § 583.130.) Attorneys who do not cooperate with one another “are practicing in contravention of the policy of the state and menacing the future of the profession.” (Id. at p. 16.)

Code of Civil Procedure section 583.130 says: “It is the policy of this state that a plaintiff shall proceed with reasonable diligence in the

prosecution of an action but that all parties shall cooperate in bringing the action to trial or other disposition.” “That is not complicated language. No jury instruction defining any of its terms would be necessary if we were submitting it to a panel of non-lawyers.” (Id. at p. 2.) “Yet the principle the section dictates has somehow become the Marie Celeste of California law – a ghost ship reported by a few hardy souls but doubted by most people familiar with the area in which it’s been reported.” (Ibid.) Attorneys today are forced “to sail between Scylla and Charybdis” – torn between the civility taught in law schools and required in the oath new attorneys have had to take since 2014, “and their obligation to represent their client as effectively as possible.” (Id. at pp. 10-11.) “We ask too much of people with families and mortgages … when we ask them to choose ‘dignity, courtesy, and integrity’ over easy ‘fish in a barrel’ victories that are perceived to have statutory support.” (Ibid.) “We owe ourselves an easier choice, and the legislature has given it to us in section 583.130.” (Ibid.)

Based on the standard in section 583.130, the court of appeal concluded that the trial court abused its discretion in not setting aside a default judgment. While several factors combined to convince the court of that, first on the court’s list was counsel’s “use of email to give ‘warning.’” (Id. at p. 11.) “Email has many things to recommend it; reliability is not one of them.” (Ibid.) “While some emails seem to live on for years despite efforts to bleach them out, others have the half-life of a neutrino.” (Id. at p. 12.) “The choice of email to announce an impending default” seemed to the court “hardly distinguishable from stealth. And since the other course adopted by respondent’s trial attorney was mailing a letter on Thursday in which he demanded a response by Friday,” it was difficult for the court “to see this as a genuine warning – especially when 19th century technology – the telephone – was easily available and orders of magnitude more certain.” (Ibid.)

The court acknowledged older authority for the proposition that “giving any warning at all” before seeking a default “is an ‘ethical’ obligation as distinct from a ‘legal’ one,” but held that “to the extent it was possible for a party seeking a default with unseemly haste to commit an ethical breach without creating a legal issue, that distinction was erased by section 583.130.” (Id. at pp. 8, 10.) “Quiet speed and unreasonable deadlines do not qualify as ‘cooperation’ and cannot be accepted by the courts” because they are “contrary to legislative policy and … destructive of the legal system and the people who work within it.” (Id. at 10.) Allowing conduct like this “to flourish has been counterproductive and corrosive” and has led to “an insidious decline in the standards of the profession that must be addressed.” (Id. at pp. 7, 10.)