Utah Bar Journal

'Don't worry, I will agree to:

1. grant you additional time to respond on behalf of your client.'

2. stipulate to the admission of that document you want to introduce at trial without requiring you to put on additional foundation testimony.'

3. not submit the proposed findings or order to the court until we have a chance to work through our differences.'

4. produce documents for you in advance of your taking my client's deposition.'

5. represent to the court that you are unavailable for the hearing and that it should be rescheduled.'

Do you believe him? Can you fully rely on his representation and enjoy your weekend without worry, or do you need to prepare a letter or file something quickly to protect yourself? The response of most experienced attorneys would probably be, 'Well, that depends on which lawyer is making the promise.' I am pleased to report that with few exceptions, I personally feel comfortable relying on the representations of the lawyers I deal with on a regular basis. Nevertheless, our profession suffers from the general perception of the public that we are, as group, wholly untrustworthy and dishonest. As it turns out, this lowly perception of lawyers has been around for a few years.

Mark Twain said over 100 years ago, 'What chance has the ignorant, uncultivated liar against the educated expert? What chance have I É against a lawyer?'1 In the brief and humorous style that made him famous, Twain expressed a perception of lawyers that has been shared by generations of Americans. Indeed, decades before Twain made this statement, Benjamin Franklin gave the following observation about the legal profession: 'God works wonders now and then. Behold: a lawyer, an honest man.'2

Why have the public, and even attorneys themselves, maintained such a low perception of honesty among members of the legal profession? Doctors, accountants, engineers and librarians have no such general reputation. We do not hear comments about school teachers being unscrupulous and self serving, of bankers being ambulance chasers, or of architects being liars or deceivers. It is supremely ironic that a profession devoted to preserving law and order in society should be maligned as untrustworthy and suspect. Just what is it about the legal profession that makes its members so mistrusted?

The answer lies within the structure of society itself, or in other words, within the environment where attorneys ply their trade. Our society is constructed of laws intended to safeguard fairness and equality, laws which lawyers use as the tools of their trade. Doctors do not try to portray laws in the best light to favor their patients, but lawyers do. Electricians do not argue about how poorly their customers have been treated and about how they should be protected by the law, but lawyers do. Bakers do not prepare documents for public consumption that portray their fellow bakers as misguided or dead wrong about the law, but lawyers do. In short, lawyers are called upon to tinker with fundamental principles of law and justice in society, and in doing so are expected to portray 'truth' from the narrow perspective of their client alone.

A profession that calls upon its members to use such powerful weapons must necessarily be held to a higher standard of integrity and honor. In the heart and mind of each lawyer there should rest a fundamental respect for moral integrity and the willingness to sacrifice for it. As our own Court stated over 60 years ago in Ruckenbrod v. Mullens, 102 Utah 548, 133 P.2d 325 (Utah 1943),

The present status of the attorney in our judicial system has been a result of historical development which dates back for some seven centuries É While doctors, plumbers, electricians, barbers, etc., may sell their time and skill to the public by virtue of their license from the state, the attorney alone has the right to set the judicial machinery in motion in behalf of another and to thus participate as an officer of the court in a judicial proceeding.

Id. at 558. However, ''[m]embership in the bar is a privilege burdened with conditions' É [Lawyers are] received into that ancient fellowship for something more than private gain. [They] became an officer of the court, and like the court itself, an instrument or agency to advance the ends of justice.' Id. at 558 quoting People v. Culkin, 248 N.Y. 465, 162 N.E. 487 (1928) (opinion by Justice Cardozo).

Standard Six of the twenty Standards of Professionalism and Civility adopted by the Utah Supreme Court embodies these principles in respect to how attorneys are to interact with each other and with the public at large. It states: '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.'

While the words are simple, the intent of this standard (as with the other nineteen as well) relates to something far deeper. Standards of integrity and professionalism should be internalized and maintained by and between practitioners in the law, in order for such standards to be respected by all members of society who are governed by the law. The standards must mean more than mere words on paper. If lawyers cannot be honest with each other, they will not likely be honest with anyone else.

The concept of an internalized commitment to integrity as being fundamental to the stability of society is portrayed by Joseph J. Ellis in his Pulitzer Prize winning book, 'Founding Brothers.'3 In the first chapter, Ellis discusses the duel between Aaron Burr and Alexander Hamilton, a duel that ended in tragedy for Hamilton and sealed the political doom of Burr. After discussing at length the details of what happened at Weehawken, New Jersey that fateful day of July 11, 1804, Ellis questions why two respected American statesmen would be led to such an impasse. Why, he asks, did Hamilton hate Burr - a member of his own party, from his own state of New York - so much more than his arch rival Thomas Jefferson, who espoused political principles against which Hamilton was diametrically opposed? The answer is found in the degree to which each man maintained principles of integrity and commitment to the rule of law laid out in the new American Republic. Hamilton acknowledged that Jefferson, while holding political beliefs that Hamilton strongly disavowed, was still ''by far not so dangerous a man,' who possessed 'solid pretensions to character.'' As for Burr, however, 'his private character is not defended by his most partial friends É His public principles have no other spring or aim than his own aggrandizement É If he can he will certainly disturb our institutions to secure himself permanent power and with it wealth.'4

Hamilton recognized that Burr was dangerous not because he took a strong stand for what he believed in, but precisely because he took no stand and believed in nothing but himself. In words that could be applied equally to today's lawyers, Ellis portrayed this concept in these words: 'Honor mattered because character mattered. And character mattered because the fate of the American experiment with republican government still required virtuous leaders to survive.'5

Hence, Standard Six, as with all twenty standards, embodies a concept far more meaningful than the need for attorneys to keep their word to each other. First and foremost, they must keep their word to themselves. Their own internal commitment to integrity must outweigh any temptation to justify an untrue statement that advances the interests of their client. They must hold inviolate simple concepts of honesty and trustability in their relationships with their fellow lawyers and as officers of the court, not only because that is the right thing to do, but because that is the only thing to do when dealing with principles of law and justice.

One may ask, is the sixth standard really necessary? Do we really need to be reminded of the things we learned in kindergarten - to always tell the truth and keep our promises? In the case of Topik v. Thurber, 739 P.2d 1101 (Utah 1987), the Supreme Court found an attorney liable for his failure to honor his promises. In this case, the attorney and his client both promised that if the client received an expected settlement from a personal injury award, a portion of the proceeds would be forwarded to the bank in satisfaction of the client's debt. However, when the money came in, the attorney failed to fulfill his promise. The court found that 'the evidence at trial established that defendant made verbal and written promises to honor [his client's] assignment as the funds passed through defendant's hands.' Id. at 1103. The attorney's defense that his client and the client's partner should be solely liable 'in no way negate[s] defendant's own obligations and liabilities affirmatively undertaken and resulting from his verbal and written representations.' Id. In short, the attorney was required to keep his promise. Character matters to the Court.

Recently, an attorney drafting a lease for a South Florida shopping center took some creative liberties in including an 'end of the world' clause that required the payment of rent to his client even if the world came to an end. The clause included the following statement: 'For remedial purposes, Landlord will be deemed aligned with the forces of light, and Tenant with forces of darkness, regardless of the parties' actual ultimate destinations, unless and until Landlord elects otherwise in writing.'6

Notwithstanding the questionable alignments and motives we see in our clients from time to time, a good lawyer will always find a way to illuminate the process with his own light and truth. And in the end, not only is the client better served, but the whole underpinning principles of law and justice that maintain our society are strengthened and preserved. May the force be with you.

1. Lawyer's Wit and Wisdom: Quotations on the Legal Profession, in Brief, page 43 (Bruce Nash & Allan Zullo, ed.'s, Running Press, 1995).

2. Id. at 48.

3. Founding Brothers: the Revolutionary Generation, Joseph J. Ellis (Alfred A. Knopf, New York, 2002).

4. Id. at 42.

5. Id. at 47.

6. Lawyer's Wit and Wisdom, supra, at 35.