Standard 14 - Professional Courtesy
by Bonnie Mitchell
"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 right, 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."
As a veteran litigator recently told me, "it is the rare client who doesn't expect their lawyer to use every trick in the book on their behalf." While a lawyer's primary duty is to the client, most clients don't know, or overlook, that their lawyer's ability to represent them is contingent on obligations to play by certain rules of procedure and professional responsibility. Also, most clients and some attorneys don't know, or overlook, that lawyers belong to a profession that has a very long tradition of dignity, integrity and civility when members interact with one another.
When it approved Standard 14, the Utah Supreme Court made it clear that if it doesn't affect the merits of the case, lawyers don't need their client's permission to extend professional courtesy, and lawyers shall accommodate reasonable requests. In nearly all instances, a client's demand that you "play hardball" or "show 'em you're tough" or "make her sweat" is beyond the merits of the case. The same is true when lawyers choose to use procedure for tactical advantage or spurn reasonable requests for accommodation just to play "gotcha."
At both the "U" and the "Y" law schools, students are exposed right away to the Standards of Professionalism and Civility. Because most have never seen lawyering in the "real world," we tell students that it is a mistake to choose a model for good lawyering based on what they see on the plasma or big screen. Many students are surprised to learn that real judges hate it when lawyers engage in gamesmanship over undisputed facts, or play hide and seek if asked to grant an extension.
It is my experience that law students like to discuss traits of good lawyering and concepts of professionalism and civility. During those discussions, students not only talk about obvious instances of bad behavior, but also explore lines of conduct that aren't so bright. Students seem to understand pretty easily that there may be conflicting duties at times and tough decisions to make. They also accept that reasonable minds can differ when interpreting what might be a "reasonable request." We suggest that a good time for them to talk to clients about the issues in Standard 14 is when they are forming the attorney/client relationship and fee agreement. Right up front, attorneys should discuss their professional obligations and duties and let clients know who is in charge of what decisions. Students believe that most clients, when fully informed, would agree that they are not in the best position to understand the broader legal market, court scheduling, ongoing relationships that lawyers have with judges and other lawyers, and the downside - even to their own case - of incivility. If not, students agree that this would be the best time to discover that.
Nearly all law students say they will commit to incorporate high standards of professionalism and civility when they enter the "real world." Unfortunately, far too many report that once they enter that world, they find they are working for or interacting with an attorney whose interpersonal skills aren't so civil. Or maybe they are working for a lawyer whose standard of practice is to use every trick in the book. Confused and even afraid some times, these law clerks or newly minted lawyers often ask me what they should do. I often don't have a good answer.