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In an effort to enhance both the daily experience of lawyers, and the reputation of the bar as a whole, the Utah Supreme Court has recently joined a growing number of jurisdictions by
adopting standards of professionalism and civility applicable to all members of the Bar, and to those lawyers who appear in our courts from other jurisdictions. These standards are not
yet mandatory, but the Court anticipates judges throughout the state will begin educating counsel appearing in their courts on these standards when conduct needs improvement.
By
order dated October 16, 2003, the Utah Supreme Court accepted the report of its Advisory Committee on Professionalism and approved the twenty Standards of Professionalism and Civility
recommended in the report. Prior to issuance of the order, the Court had authorized publication of the report on the Utah State Bar's web page and solicited written comments from Bar
members.
Many jurisdictions have hoped to increase civility in the legal profession by promulgating codes of civility. In 1992, the Seventh Federal Judicial Circuit issued its
"Proposed Standards for Professional Conduct." According to the Court's Professionalism Committee, the Seventh Circuit's standards have become a model for other courts and bar
associations. In addition to the Seventh Circuit's standards, the Professionalism Committee reviewed the Florida Bar Trial Lawyers Section Guidelines for Professional Conduct, the Texas
Lawyer's Creed, the Civility and Professional Guidelines for the Central District of California, the ABA Guidelines for Conduct and Lawyer's Duties to Other Counsel, the San Diego County
Bar Association's Civil Litigation Code of Conduct, the Federal Bar Association Professional Ethics Committee's Standards for Civility in Professional Conduct, and the American Inns of
Court Professional Creed. Following this review process, the Professionalism Committee spent countless hours drafting and refining the twenty Standards of Professionalism and Civility
printed below.
The members of the Committee have earned the thanks and admiration of the Court for their devotion and the quality of the final report. Of particular note, Justice
Matthew B. Durrant has served with distinction as chair of the Professionalism Committee since the committee's formation in October of 2001. During the past two years, he has made
numerous presentations to both the bench and bar concerning the work of the Professionalism Committee, the standards, and their implementation. With the full support of the Supreme Court,
Justice Durrant has urged state and justice court judges to require lawyers appearing before them to adhere to the Standards of Professionalism and Civility.
As the newly-appointed
chair of the Professionalism Committee, I have been asked by the Court to focus on methods for making the Standards of Professionalism and Civility the behavioral norms for the Utah legal
profession. Opportunities to discuss and understand the new standards will be frequent and varied. The Supreme Court and the Professionalism Committee urge your support of this effort.
For those of you who have not yet been exposed to the new standards, please take a moment to review them. I believe you will find them not burdensome, but rather, helpful. Either way,
the Court will expect members of the Bar to be familiar with them, and to make an honest effort to apply them in practice.
Utah Standards of Professionalism and Civility
Preamble
A lawyer's conduct should be characterized at all times by personal courtesy and professional integrity in the fullest sense of those terms. In fulfilling a duty to
represent a client vigorously as lawyers, we must be mindful of our obligations to the administration of justice, which is a truth-seeking process designed to resolve human and societal
problems in a rational, peaceful, and efficient manner. We must remain committed to the rule of law as the foundation for a just and peaceful society.
Conduct that may be
characterized as uncivil, abrasive, abusive, hostile, or obstructive impedes the fundamental goal of resolving disputes rationally, peacefully, and efficiently. Such conduct tends to
delay and often to deny justice.
Lawyers should exhibit courtesy, candor and cooperation in dealing with the public and participating in the legal system. The following standards
are designed to encourage lawyers to meet their obligations to each other, to litigants and to the system of justice, and thereby achieve the twin goals of civility and professionalism,
both of which are hallmarks of a learned profession dedicated to public service.
We expect judges and lawyers will make mutual and firm commitments to these standards. Adherence is
expected as part of a commitment by all participants to improve the administration of justice throughout this State. We further expect lawyers to educate their clients regarding these
standards and judges to reinforce this whenever clients are present in the courtroom by making it clear that such tactics may hurt the client's case.
Although for ease of usage the
term "court" is used throughout, these standards should be followed by all judges and lawyers in all interactions with each other and in any proceedings in this State. Copies
may be made available to clients to reinforce our obligation to maintain and foster these standards. Nothing in these standards supersedes or detracts from existing disciplinary codes or
standards of conduct.
Annotation: See generally Preamble to Standards for Professional Conduct Within the Seventh Federal Judicial Circuit ("7th Cir.
Standards"); Preamble to American College of Trial Lawyers Code of Pretrial Conduct ("ACTL Pretrial Code"); Preamble to Federal Bar Association Standards for Civility in
Professional Conduct ("FBA Standards"); American Inns of Court Professional Creed. All Annotations may be found at www.utprofcomm.org.
Lawyers' Duties
1.Lawyers shall advance the legitimate interests of their clients, without reflecting any ill-will that clients may have for their adversaries, even if called upon to do so by another.
Instead, lawyers shall treat all other counsel, parties, judges, witnesses, and other participants in all proceedings in a courteous and dignified manner.
Annotation: American Board of Trial Advocates Principles of Civility ("ABOTA Principles"), No. 1; see also ACTL Pretrial Code, Std. 4(a); Participant's Manual for the Professionalism Course, State Bar of Arizona, February 1999, Professionalism Principle X ("Arizona Professionalism"); ABA Section of Litigation, Guidelines for Conduct, Lawyers' Duties to Other Counsel ("ABA Guidelines"), No. 2; FBA Standards, No. 2.
2. Lawyers shall advise their clients that civility, courtesy, and fair dealing are expected. They are tools for effective advocacy and not signs of weakness. Clients have no
right to demand that lawyers abuse anyone or engage in any offensive or improper conduct.
Annotation: Civility and Professionalism Guidelines for the Central District of
California ("Central Dist. Cal."), No. A. 3; The Texas Lawyer's Creed, a Mandate for Professionalism, promulgated by the Supreme Court of Texas ("Texas Creed"), No.
II. 6; FBA Standards, Nos. 3 & 13.
3.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.
Annotation: ABOTA
Principles, No. 3; ACTL Pretrial Code, Stds. 3(b) & 4(b); American College of Trial Lawyers Code of Trial Conduct ("ACTL Trial Code"), Std. 13(d) (1994); see also Texas Creed No. III. 10; 7th Cir. Standards, Lawyers' Duties to Other Counsel, No. 4; FBA Standards, Nos. 5, 24 & 25.
4.Lawyers shall never knowingly attribute to other counsel a position or claim that counsel has not taken or seek to create such an unjustified inference or otherwise seek to
create a "record" that has not occurred.
Annotation: ABOTA Principles, No. 28; ACTL Pretrial Code, Std. 4(c); see also ABA Standards, No. 29.
5.Lawyers
shall not lightly seek sanctions and will never seek sanctions against or disqualification of another lawyer for any improper purpose.
Annotation: See Civil Litigation Code of Conduct, San Diego County Bar Association ("San Diego Bar"), No. III. 13; Texas Creed, No. III. 19; FBA Standards, No. 23.
6. 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.
Annotation: ABOTA Principles, No. 5; ACTL Pretrial Code, Std. 4(e); ACTL Trial Code, Std. 13(b); see also Central Dist. Cal., B.1.a; The Florida Bar Trial Lawyers Section, Guidelines for Professional Conduct ("Fla. Guidelines"), No. D.5; FBA Standards, No. 48.
7.When committing oral understandings to writing, lawyers shall do so accurately and completely. They shall provide other counsel a copy for review, and never include
substantive matters upon which there has been no agreement, without explicitly advising other counsel. As drafts are exchanged, lawyers shall bring to the attention of other counsel
changes from prior drafts.
Annotation: ABOTA Principles, No. 6; Central Dist. Cal., B.1.b.; cf. Texas Creed, No. III. 4; Aspirational Statement on Professionalism, entered by Order of Supreme Court of Georgia, October 9, 1992, ("Georgia Aspirational"), No. 5; FBA Standards, Nos. 49 & 50.
8.When permitted or required by court rule or otherwise, lawyers shall draft orders that accurately and completely reflect the court's ruling. Lawyers shall promptly prepare
and submit proposed orders to other counsel and attempt to reconcile any differences before the proposed orders and any objections are presented to the court.
Annotation: See ABA Guidelines, No. 28; ABOTA Principles, No. 27; see generally CJA Rule 4-504.
9.Lawyers shall not hold out the potential of settlement for the purpose of foreclosing discovery, delaying trial, or obtaining other unfair advantage, and lawyers shall
timely respond to any offer of settlement or inform opposing counsel that a response has not been authorized by the client.
Annotation: ABOTA Principles, No. 7.
10.
Lawyers shall make good faith efforts to resolve by stipulation undisputed relevant matters, particularly when it is obvious such matters can be proven, unless there is a sound advocacy
basis for not doing so.
Annotation: ABOTA Principles, No. 8; ABA Standards, No. 9; see ACTL Code, Stds. 6(b) & 9(i); FBA Standards, No. 15.
11. Lawyers shall avoid impermissible ex parte communications.
Annotation: ACTL Pretrial Code, Std. 8(a); San Diego Bar, No. II. 8; compare Utah Supreme Court Rules of Professional Practice, 3.5(c), with Utah Canon 3(B)(7), Code of
Judicial Conduct; FBA Standards, No. 33.
12. Lawyers shall not send the court or its staff correspondence between counsel, unless such correspondence is relevant to an issue
currently pending before the court and the proper evidentiary foundations are met or such correspondence is specifically invited by the court.
Annotation: Cf. ABOTA Principles, No. 29; Texas Creed, No. III. 13.
13. Lawyers shall not knowingly file or serve motions, pleadings or other papers at a time calculated to unfairly limit other counsel's opportunity to respond or to take other
unfair advantage of an opponent, or in a manner intended to take advantage of another lawyer's unavailability.
Annotation: ABOTA Principles, No. 12; ACTL Pretrial Code, Std. 2(c); see also Georgia Aspirational, No. 1; FBA Standards, No. 8.
14. Lawyers shall advise their clients that they reserve the right to determine whether to grant accommodations to other counsel in all matters not directly affecting the
merits of the cause or prejudicing the client's rights, such as extensions of time, continuances, adjournments, and admissions of facts. Lawyers shall agree to reasonable requests for
extension of time and waiver of procedural formalities when doing so will not adversely affect their clients' legitimate rights. Lawyers shall never request an extension of time solely
for the purpose of delay or to obtain a tactical advantage.
Annotation: See ABOTA Principles, Nos. 13 & 17; ACTL Pretrial Code, Stds. 1(c); ACTL Trial Code, Std. 13(a); Texas Creed No. II. 10; FBA Standards, No. 10.
15. Lawyers shall endeavor to consult with other counsel so that depositions, hearings, and conferences are scheduled at mutually convenient times. Lawyers shall never request
a scheduling change for tactical or unfair purpose. If a scheduling change becomes necessary, lawyers shall notify other counsel and the court immediately. If other counsel requires a
scheduling change, lawyers shall cooperate in making any reasonable adjustments.
Annotation: See generally ABOTA Principles, Nos. 13-16; ACTL Pretrial Code, Std. 1; FBA Standards, Nos. 9, 11, 30, 31 & 32.
16. Lawyers shall not cause the entry of a default without first notifying other counsel whose identity is known, unless their clients' legitimate rights could be adversely
affected.
Annotation: ABOTA Principles, No. 18; ACTL Pretrial Code, Std. 13(b); see also ABA Guidelines, No. 18; Texas Creed, No. III. 11.
17. Lawyers shall
not use or oppose discovery for the purpose of harassment or to burden an opponent with increased litigation expense. Lawyers shall not object to discovery or inappropriately assert a
privilege for the purpose of withholding or delaying the disclosure of relevant and non-protected information.
Annotation: See generally Utah Supreme Court Rules of Professional Practice, 4.4; Utah Rules of Civil Procedure 11, 26 & 37; FBA Standards, Nos. 14, 17 & 19.
18. During depositions lawyers shall not attempt to obstruct the interrogator or object to questions unless reasonably intended to preserve an objection or protect a privilege
for resolution by the court. "Speaking objections" designed to coach a witness are impermissible. During depositions or conferences, lawyers shall engage only in conduct that
would be appropriate in the presence of a judge.
Annotation: See Fla. Guidelines, No. E.9; FBA Standards, No. 16.
19. In responding to document requests
and interrogatories, lawyers shall not interpret them in an artificially restrictive manner so as to avoid disclosure of relevant and non-protected documents or information, nor shall
they produce documents in a manner designed to obscure their source, create confusion, or hide the existence of particular documents.
Annotations for 17 - 19: See generally ABOTA Principles, Nos. 19-26; ACTL Pretrial Code, Stds. 5(a), 5(c) & 5(e)(5); FBA Standards, Nos. 18 & 20.
20. Lawyers shall not authorize or encourage their clients or anyone under their direction or supervision to engage in conduct proscribed by these Standards.
Annotation: ABOTA Principles, No. 2; see also Texas Creed, No. III. 9.
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