Enforcing the Standards of Professionalism and Civility
by Donald J. Winder and Dennis Flynn
A good advocate avidly pleads his or her client's case in order to achieve favorable results. At the heart of effective advocacy are good communication skills essential for conveying expectations and intentions to the court, to other attorneys, and to clients. When correspondence, phone calls and other encounters are mottled with impolite or abusive content, the message being conveyed is often obscured or even lost. At times lawyers become a reflection of an emotional client rather than an objective advocate on behalf of that client. When a lack of civility begins to permeate the lawyer's discourse, it can impede his or her success and ability to represent clients well.
Some in the legal profession may not perceive the lack of civility and professionalism as a serious concern. A decline in civility seems to pervade modern society, and some lawyers may have been raised in a culture where manners, as signs of simple respect, have ceded ground to competitiveness and the drive to succeed at any cost. Law practice has been intensified by technological innovations, competition for clients, and burgeoning discovery, perhaps fostering discovery abuse and the toleration of uncivil behavior. Whatever the causes of declining professionalism, to what extent and at what cost should a lawyer be willing to obtain the client's objectives? Does resorting to whatever means necessary to win inevitably equate to good, or even effective, advocacy if that includes disregarding principles of civility and professionalism?
Incidents of incivility arise at all levels of litigation and can creep into daily routines in any number of ways. Lawyers may send letters to each other with rude or inflammatory remarks. Lawyers now have instantaneous communication tools such as e-mail and voicemail, which permit a lawyer to express words before taking the time needed to think them through. Unfortunately, such remarks can also make their way into courtrooms and before judges. The worst incivility may well arise in discovery, such as delay tactics and refusal to grant extensions, and in the deposition room where no court representative is present.
Justice Sandra Day O'Connor said membership in a profession "entails an ethical obligation to temper one's selfish pursuit of economic success by adhering to standards of conduct that could not be enforced either by legal fiat or through the discipline of the market." Shapero v. Kentucky Bar Ass'n., 486 U.S. 466, 488-89 (1988)(O'Connor, J., dissenting). By taking an oath, attorneys become officers of the court charged with pursuing, defending and preserving justice. Accepting this responsibility means we aspire to our society's highest ideals of justice. Sadly, in recent years the legal profession has suffered in the court of public opinion due to the decline of civility and professionalism. Fortunately, some tools exist to help enforce core principles of civility within the profession.
To address the problem in Utah, a committee of lawyers and judges was commissioned to draft the Standards of Professionalism and Civility, which the Utah Supreme Court adopted in 2003. Professional and civil conduct is expected in the state's highest courts, and it should be required in the district courts as well.
Utah appellate courts have admonished lawyers for littering briefs and other court documents with expletives and other similar tirades bringing down opposing counsel and seeking advantage through such language. In one Utah Court of Appeals decision, counsel was admonished for such conduct by a judge who actually sided with him on the merits. In B.A.M. Dev., L.L.C. v. Salt Lake County, 87 P.3d 710 (Utah Ct. App. 2004), Judge Orme stated:
While I appreciate a zealous advocate as much as anyone, such techniques, which really amount to a written form of shouting, are simply inappropriate in an appellate brief. It is counterproductive for counsel to litter his brief with burdensome material such as "WRONG! WRONG ANALYSIS! WRONG RESULT! WRONG! WRONG! WRONG!" It is also at odds with Rule 24(j) of the Utah Rules of Appellate Procedure.
Id. at 734 (Orme, J., dissenting); see in re L.M., 68 P.3d 276, 278 (Utah Ct. App. 2003)(Assertions that trial court's conclusions were "ridiculous" and that its chronology was "bizarre" are "entirely irrelevant and inappropriate to these proceedings."). Rule 24(j) permits the court to disregard or strike noncomplying briefs, or assess attorney fees against the offending lawyer. Utah R. App. P. 24(j).
More recently, the Utah Court of Appeals commented on "the unprofessional and inappropriate language" used in a party's brief, commenting that both Landlord and Tenant "ought to be ashamed of themselves," for repeatedly referring to opposing counsel's arguments as "revolting," "disingenuous," "nonsensical," "insulting to the intelligence of the Court," "ridiculous," and "reprehensible." Advanced Restoration, L.L.C. v. Priskos, 126 P.3d 786, 797 (Utah Ct. App. 2005). The Court then went on to say, "Derogatory references to others or inappropriate language of any kind has no place in an appellate brief and is of no assistance to this court in attempting to resolve any legitimate issues presented on appeal." Id. (quoting State v. Cook, 714 P.2d 296, 297 (Utah 1986) (per curiam)).
The Advanced Restoration opinion also cited to the Rules of Professional Conduct, which require lawyers to maintain the decorum of the tribunal, and that "[r]efraining from abusive or obstreperous conduct is a corollary of the advocate's right to speak on behalf of litigants." Comment to Utah R. Professional Conduct 3.5. The Standards of Professionalism and Civility urges lawyers to "avoid hostile, demeaning, or humiliating words in written and oral communications with adversaries." Utah Standards of Professionalism and Civility, Standard 3.
If such conduct is not permitted in our appellate courts, it should not be permitted in our trial courts. Trial judges have additional mechanisms to enforce civility and professionalism standards in their courtrooms. Courts may look to the inherent powers of the courts to conduct matters before them, powers of contempt, Rule 11, and even the admonition in Rule 1 to interpret the Rules of Civil Procedure to affect a "just, speedy and inexpensive resolution" of all cases. Ethical complaints may also be filed with the Bar for ethical violations.
Some of our trial judges are willing to require civility in their courtrooms. In a case with which our firm was involved, a lawyer filed a motion to recuse a district judge because the lawyer disagreed with the judge's decisions. In his affidavit to the court, the lawyer impugned the judge with allegations of false or conjured reasoning, being wrongheaded, being neither objective nor sane, having an unacceptable defect as a jurist in his ability to grasp and understand basic financial facts, and having an inability to stand the heat of litigation. It would be challenging for any judge to remain objective or avoid bias after reading such defaming remarks. The judge's colleague who was given the task to review the request ordered the recusal only after expressing incredulity at what he called the most outrageous case of judge shopping he had seen in 20 years of service as a judge on the court. He then referred the case to the Utah Bar to determine whether the lawyer's actions violated the standards of professional responsibility and, if so, to take appropriate action against the offending attorney.
Maintaining civility and professionalism can be challenging in an adversarial system where professionals are expected to advocate zealously for their clients. However, without mutual respect and courtesy, an effective working relationship between lawyers is not likely to materialize and the client loses out in the end. It is not too lofty to expect lawyers to achieve the aspirations of a noble and honorable profession where professionals treat each other with dignity.
Without civility, no private discussion, no public debate, no legislative process, no political campaign, no trial of any case, can serve its purpose or achieve its objective. When men shout and shriek or call names, we witness the end of rational thought process if not the beginning of blows and combat.
* * *
With all deference, I submit that lawyers who know how to think but have not learned how to behave are a menace and a liability, not an asset, to the administration of justice.
Warren E. Burger, The Necessity For Civility, 52 F.R.D. 211 (1971).