The courts and attorneys rarely witness a blatant violation of either the Rules of Professional Conduct or the Standards of Professionalism. However, it is not the extremes that the Standards of Professionalism are aimed to counteract. Instead, it is the threshold effects that create the problems. For example, one person, or even thirty, walking across the grass to take a shortcut is not going to make a noticeable difference. However, a thousand people doing it every day creates a grassless path.

Criminal attorneys, as a whole, interact within a small community and spend a lot of time in court. This familiarity cuts both ways with respect to civility towards each other. The familiarity between prosecutors and defense attorneys makes each side more accessible, and encourages civility because of the almost daily interactions that are required. However, attorneys are at risk of turning that familiarity into informality, such as referring to counsel by first name in open court. Attorneys also risk attaching their perception of counsel to their perception of the court process, thereby creating a personal aspect to any hearing, offer, or recommendation during the prosecution of a case. The Standards are useful to counteract this casualness.

Lawyers shall treat all other counsel, parties, judges, witnesses, and other participants in all proceedings in a courteous and dignified manner.
During a recent ABA Conference, Supreme Court Justice Breyer was asked what action he would like attorneys to take to combat the vigorous attacks on the judiciary. He stated that he wanted all attorneys to go out and educate people wherever we can. As attorneys in criminal law, we are in a unique situation because we interact with so many people in the public, whether they are defendants or victims, witnesses or observers, or others affected in some way by crime. Exhibiting professionalism, courtesy, and respect to all participants is the most important thing we can do as attorneys to educate the public as to why the courts should be respected and revered.

One area every attorney can improve is promptness. Charles Simmons is quoted as saying, "Promptitude is not only a duty, but is also a part of good manners; it is favorable to fortune, reputation, influence, and usefulness; a little attention and energy will form the habit, so as to make it easy and delightful." Judges, attorneys, witnesses and defendants alike, all complain of the time they spend sitting in court waiting. Unfortunately, in our system we have high caseloads. Many times, attorneys are required to be in multiple courtrooms at the same time and hearings are all scheduled to start at the same time. The practical consequences are that the forty-plus cases on the calendar will not be heard right at 8:30, but instead will take hours before they are in front of the judge. Regrettably, this leads to a casualness regarding timeliness of appearances. Some attorneys do not even enter the courthouse until well after the calendar has started. While practically, this may not make a difference in terms of when the case will be called, it does make a difference to everyone involved. It makes a difference to the attorney who arrived on time and is waiting, often for just that one case, and it makes a difference to the defendant and witnesses, who have often taken time off of work and who must sit in the courtroom waiting to find out if the case is going to proceed. Attorneys and the courts should prioritize the cases involving the most people, especially civilian witnesses who are involved in the criminal justice system through no fault of their own.

Another area attorneys should seek to improve is respect for those who are speaking in open court. Attorneys are often under the illusion that the more they talk, the better their point becomes. This manifests itself when the attorney or the judge is interrupted by another participant seeking to rebut or clarify a point. Interrupting another attorney while they are addressing the court is disrespectful to both opposing counsel and the court. Attorneys should make a concerted effort to remain silent until it is their opportunity to speak, and then when provided the opportunity, make their point.

Lawyers shall advise their clients that civility, courtesy, and fair dealing are expected. They are tools for effective advocacy and not signs of weakness.
Criminal attorneys, especially those in the public sector, are in court most of the week. Like many areas of the law, the same actors appear regularly, and those involved develop a rapport that is essential with the high caseload. The most effective attorneys are those who are able to effectively advocate their position by conducting themselves in a manner that bolsters their respect and their integrity. In the area of criminal law, there are few surprises. The facts are what they are, and no matter the efforts of the attorneys, defendants' and witnesses' criminal histories do not change, memories do not get better, and statutes and legal precedent are rarely ambiguous. The effective defense attorneys are those who approach the prosecutor with a sound legal argument that they articulate. If the facts and law are not on their side, an effective defense attorney will approach the prosecutor with a real solution to address the concerns the State has regarding punishment and rehabilitation. Offers are frequently changed based on legitimate legal concerns or when both parties are able to structure a proposed plea agreement that helps all parties involved, and protects the community. However, the least effective strategy in plea negotiations is to yell at or ridicule the prosecutor or threaten to file a frivolous motion. Attorneys who threaten the prosecution personally or with a motion as a means of plea bargaining only discredit any future valid legal arguments they may make, and such posturing hurts their clients as the case proceeds. With the fast pace of the criminal system, defense attorneys frequently proffer facts either to the judge or the prosecutor. If attorneys have engaged in behavior that has undermined their credibility, such a proffer is unlikely to be accepted without further corroboration, which may cause delayed hearings or bench warrants to be issued.

Lawyers shall not, without an adequate factual basis, attribute to other counsel or the court improper motives, purpose, or conduct. Lawyers should avoid hostile, demeaning, or humiliating words in written and oral communications with adversaries. Neither written submissions nor oral presentations should disparage the integrity, intelligence, morals, ethics, or personal behavior of an adversary unless such matters are directly relevant under controlling substantive law.
This is the standard most violated in the arena of criminal law. When dealing with laws that are embodiments of social norms, it is easy to become a zealot for either the prosecution or the defense. Such extremism, regardless of which position is taken, is a threat to professionalism. As Victor Hugo recognized, dividing society into two classes, "those who attack it and those who guard it," while "very simple and very good in themselves," are made "evil by [a person's] exaggeration of them." Victor Hugo, Les Miserables 148-9 (Charles E. Wilbour trans., Modern Library Ed. 1992).

Over time, prosecutors and defense attorneys risk becoming entrenched in an attitude that the other side, and those associated with it, are to some degree immoral. Whether it is the prosecutor believing all defendants are a scourge and can never change, or the defense attorney who believes all police officers are liars and prosecutors are actually persecutors, such assumptions preclude any recognition of the validity of another attorney's position. This internalized belief leads to an "anything goes" attitude wherein the ends always justify the means. Demonizing opposing counsel becomes an accepted tactic and any aversion to incivility is lost. Forgotten is the core concept that prosecutors and defense attorneys have the same primary responsibility - defending the constitutions - and only the means by which we seek to accomplish it are different.

Salt Lake County Deputy District Attorneys, when sworn in, promise "to support, obey, and defend the Constitution of the United States and the Constitution of the State of Utah and perform the duties of [their] position as Deputy District Attorney with fidelity." That is the first and foremost responsibility of every prosecutor. Prosecutors also must faithfully uphold the laws of the State of Utah whether they personally agree with them or not. Outside the courtroom, prosecutors perform their sworn duties by constantly training local police departments to enforce the laws within the bounds of the constitutions and declining to file cases in which there have been violations of constitutional protections. Inside the courthouse, prosecutors defend the constitutions by prosecuting cases according to the procedures set forth by the constitutions, courts, and statutes.

A prosecutor's job is not to enter into a plea agreement that is beneficial to a defendant at the expense of the community. It is the responsibility of a defense attorney to put the State to its procedural burden of prosecuting a case. A defense attorney may seek to work out a favorable outcome for their clients within this framework, and with the high volume of criminal cases, plea bargaining is essential. It is when attorneys remove the case from the procedural arena into the personal arena that incivility is at its worst. Some defense attorneys attack the prosecutor on a personal level because they do not receive a plea offer they want, or do not agree with a position taken by the State. Some of the more disparaging names used in open court (and that I can print in this article) by defense counsel to a prosecutor are "hateful, oppressive, heartless, and close-minded." On occasions, defense attorneys have even commented on the prosecutor's upbringing to "explain" why a specific prosecutor was being "hard" on a defendant. Such defense attorneys miss the obvious explanation that the prosecutor is doing their job. Bullying the prosecutor is not a means to defend the constitutions, and there is always a civil and legal alternative for defending the constitutions - it is called a trial.

On the other side, a defense attorney's primary obligation is also to defend the constitutions, only they do it through an individual client. As Justice Durham has stated,

Defense counselÕs obligation is to explain the evidence against the defendant, the nature of all defenses that might be provable, all the various options the defendant has in pleading guilty or not guilty and going to trial, and the possible or likely consequences of those options.. . . Certainly attorneys are bound to have private feelings about the clients they represent and their guilt or innocence, but it is their professional responsibility to set aside private feelings and judgments and vigorously argue the law and the facts in a light as favorable to the defendant as the law and facts permit.

State v. Holland, 876 P.2d 357, 362 (Utah 1994).

All of us in the criminal law have the same goal Ð to defend the constitutions of the United States and Utah. Prosecutors do that by filing cases that are supported by evidence, training law enforcement officers to enforce the law within the bounds of the constitutions, and by prosecuting those who violate the laws that the people of the State of Utah pass. Defense attorneys defend the constitutions by filing motions where they feel rules of procedure have been violated and by making the State prove its case. Keeping that responsibility at the forefront, and refusing to take extremist positions, will greatly improve civility between attorneys.

Lawyers shall adhere to their express promises and agreements, oral or written, and to all commitments reasonably implied by the circumstances or by local custom.
In the area of criminal law, the most common area where oral agreements are committed to writing is in a plea affidavit. This is an area in which both prosecutors and defense attorneys need to make a more concerted effort to ensure the written agreement contains all the conditions discussed. Often, as part of the plea, sentencing recommendations are discussed. Terms such as restitution, probation terms, treatment options, etc. are all items that should be written into the agreement. For example, as part of a plea negotiation, when charges are dismissed, it is a common understanding that the defendant is responsible to pay for any restitution on dismissed charges. However, too often that agreement does not make it into the record, either through the oral colloquy or the written plea affidavit. Prosecutors have an obligation to ensure restitution is addressed on any dismissed charges and defense attorneys should ensure their client is aware that restitution will still be ordered on dismissed charges.

Lawyers shall avoid impermissible ex parte communications.
Most attorneys avoid ex parte communications regarding specific cases; however, the more insidious incidents are those that have the appearance of impropriety. With the sheer volume of criminal cases and the frequency of court appearances, many attorneys become familiar with the judges. While it is proper for judges to associate with and be friends with attorneys, both judges and attorneys alike need to be conscious of when such interactions occur. For example, during a recent preliminary hearing the court was in recess, but the judge was still on the bench. While the prosecutors were outside, the defense attorney approached the bench and started speaking with the judge. The victim and family members of the victim were inside the courtroom and voiced their concerns to the prosecutor. While neither the judge nor the defense attorney were discussing anything regarding the case, the witnesses and the victims were upset; and despite the assurances of the prosecutor, left with the impression that it would be difficult to receive a fair hearing. As officers of the court, attorneys and judges must make every effort to avoid the appearance of impropriety.

Closing Thoughts
Although this was written from an attorneyÕs perspective, a moment needs to be taken to address the judgeÕs role in these Standards. Attorneys are the most civil in the courtrooms of judges who both command respect from and show respect to those who appear in their courtrooms. When judges expect attorneys to be on time and to be courteous, attorneys rise to meet those expectations. Judges need to be intolerant of the disparaging remarks that are made from the podium, no matter who is making them, and judges should not allow one party to interrupt another. When attorneys know they will receive their opportunity to respond and know that they will not be required to defend themselves on a personal level, it is easier to be courteous. Judges should set the benchmark, and attorneys should strive to reach it on a daily basis.

"Respect is the quality it takes to look at yourself with candor, your adversaries with kindness, and your setbacks with serenity." The longer I work in criminal law, the more profound respect I have for the entire judicial system, despite its flaws. Nowhere else can disputes be resolved in such a civil manner and have the citizens of our state represented by diligent, hard-working attorneys. It is up to us, as attorneys who work so closely with the public, to raise our own expectations for our behavior toward each other and the system as a whole by internalizing and exemplifying the Standards of Professionalism and Civility.