Utah Bar Journal

By order dated October 16, 2003, the Utah Supreme Court approved the Utah Standards of Professionalism and Civility. A brief history of the Standards, culminating with the Supreme Court’s issuance of Standing Order No. 7, follows.

In March of 2001, then Chief Justice Richard Howe and several Utah lawyers attended a conference in California sponsored by the ABA’s Center for Professional Responsibility and by the Conference of Chief Justices. The conference was designed to encourage the Chief Justices in each of the fifty states to implement an action plan on lawyer professionalism. Following the conference, Chief Justice Howe asked several lawyers to informally survey practicing lawyers as to whether they felt there was a problem with professionalism in Utah. The feedback reported to Chief Justice Howe was that nearly all practitioners surveyed felt there was a significant problem.

On October 1, 2001, in response to the plea made by the Conference of Chief Justices and to feedback from Bar leadership and Utah attorneys, the Utah Supreme Court voted to create an advisory committee on professionalism in the practice of law and appointed Justice Matthew B. Durrant to chair the committee. The Court then appointed twenty judges, attorneys and law professors to serve on the committee.

At the first committee meeting, held on January 15, 2002, Justice Durrant advised that the Court was increasingly concerned about the erosion of civility and professionalism in the practice of law, and that it wanted the committee to examine the nature and extent of the civility problem within the state and to make recommendations as to how professionalism might be enhanced.

Early in the committee’s deliberations, it became apparent that many jurisdictions had hoped to increase civility in the legal profession by promulgating codes of civility. The committee reviewed more than a dozen different codes of civility in place in different parts of the country and decided to craft one of its own to recommend to the Utah Supreme Court.

Minutes of the committee’s meetings indicate that the committee did not want to add rules governing attorney conduct simply for the sake of adding rules. Additionally, the committee made clear to the Supreme Court that it did not believe that the Court’s formalization of a code of civility would, by itself, halt the decline in civility among Utah lawyers. The committee did believe, however, that the adoption of a code would provide guidance to new lawyers and a reminder for experienced ones of the higher standard of behavior expected of all lawyers. After lengthy deliberations, the committee unanimously agreed upon a preamble and twenty standards of professionalism and civility. By order dated October 16, 2003, the Utah Supreme Court approved the twenty standards recommended by its committee.

The question of enforcement of the Utah Standards of Professionalism and Civility has been a difficult one. To date, the Standards have been viewed essentially as aspirational. However, the Utah Supreme Court expects the Standards to operate as behavioral norms for the profession, and it has regularly urged state court judges to encourage lawyers practicing before them to adhere to the Standards or risk the consequences. Implementation of Standing Order No. 7 creates a further consequence for failure to adhere to the Standards, and one that extends beyond the courtroom to all interactions between attorneys.

Standing Order No. 7 establishes a board of five counselors to counsel and educate members of the Bar concerning the Standards of Professionalism and Civility. As stated in the standing order, the duties of the counselors are: (1) to counsel members of the Bar in response to complaints by other lawyers or referrals by judges, (2) to provide counseling to members of the Bar who seek advice on their own obligations under the Standards, (3) to provide CLE on the Standards, and (4) to publish advice and information relating to the work of the counseling board.

The Utah Supreme Court has appointed five attorneys to serve as counselors under Standing Order No. 7. Robert S. Clark, who has served on the Court’s professionalism committee since its inception, will chair the counseling board. Thomas Berggren, William B. Bohling, Ellen M. Maycock, and Gayle F. McKeachnie will also serve. The Court believes these five attorneys exemplify the highest standards of personal courtesy and professional integrity, and it expresses its sincere gratitude to each of them for their willingness to participate in this new program.

The Court expects the counseling board to develop its own procedures based upon its experience and upon the purposes for which the program is established. If a lawyer wishes to lodge a complaint with the counseling board concerning the conduct of another Bar member, the complaint must be in writing and signed by the complainant. It should be directed to Matty Branch, Appellate Court Administrator, Utah Supreme Court, P. O. Box 140210, Salt Lake City, UT 84114-0210. Complaints may also be submitted to Ms. Branch by email at mattyb@email.utcourts.gov. Please refer to Standing Order No. 7 for further information as to operation of the professionalism counseling program.

1. All of the Utah Supreme Court’s standing orders may be viewed at the court’s website, http://www.utcourts.gov/resources/rules/urap/Supctso.htm

In the Supreme Court of the State of Utah Standing Order No. 7
(As to establishment of a program of professionalism counseling for members of the Utah State Bar)
Effective April 1, 2008\

The Court intends to establish a board of five counselors (hereinafter the “Board”) to counsel and educate members of the Bar concerning the Court’s Standards of Professionalism and Civility (hereinafter the “Standards”). Specifically, the Board’s purposes are: (1) to counsel members of the Bar, in response to complaints by other lawyers or referrals from judges; (2) to provide counseling to members of the Bar who request advice on their own obligations under the Standards; (3) to provide CLE on the Standards; (4) to publish advice and information relating to the work of the Board.

Board Composition
Appointees shall serve on a volunteer basis and will be appointed based upon stature in the legal community and experience in legal professionalism matters. A minimum of one of the five appointees shall have transactional experience, and at least one attorney shall have small firm or sole practitioner experience. Board members shall serve for staggered terms of no fewer than three years for continuity and so that each Board member has the opportunity to develop expertise on the Standards. The Court will appoint one of the Board members as chair. The Board shall generally sit in panels of three to deal with issues presented to the Board.

Submission of Complaints and Questions to the Board
The Board is authorized to consider complaints by lawyers concerning the professionalism of other lawyers, referrals from judges, and questions about professionalism from practicing lawyers. The Board shall not consider questions or complaints from clients or members of the public.

If a lawyer wishes to lodge a complaint with the Board concerning the conduct of another member of the Bar, the complaint must be in writing (i.e., by letter or email) and signed by the complainant. The Board shall not consider anonymous complaints about lawyers. Questions or requests for counseling from a lawyer concerning his or her own conduct need not be in writing but may be made by telephone or a personal visit with members of the Board. Referrals from judges may be directed by telephone.

Procedure
The Board is authorized to develop its own procedures based upon this Standing Order, the purposes for which the program is established, and upon the Board’s experience. Adherence to formal rules of procedure or evidence is not required.

Panels should generally resolve complaints about the conduct of an attorney within thirty days of the complaint. Resolution may be by written advisory to the lawyers involved or by a face-to-face meeting with the lawyers. Written advisories should reference individual Standards.

Confidentiality
The contents of any statement, communication or opinion made by any participant in the program shall be kept confidential except that members of the panel are permitted to communicate directly with lawyers or clients involved in the dispute concerning the application or interpretation of the Standards. Also, the panel is permitted to disclose the general nature of the situation (without identifying names or facts) and its advice to the members of the Bar and the public in reports and Bar Journal articles. Additionally, the members of the panel may communicate with supervisors in firms and agencies whose lawyers have been the subject of a complaint.

The Duty of Good Faith
Attorneys seeking the assistance of the Board shall do so only in good faith and not for the purposes of harassment or to attain a strategic advantage. The Board is authorized to terminate any proceeding or referral that it believes has been initiated or utilized in bad faith or for an improper purpose.

Publication
The Board shall report annually to the Court concerning its operation, the Standards it has interpreted, the advice it has given, and any trends it believes important for the Court to know about. It should also make suggestions to the Court as to needed changes to the Standards.
The Board shall periodically publish selected portions of its advisories in the Utah Bar Journal for the benefit of practicing lawyers. Published advisories shall be redacted to eliminate the names and identifying factual details of the cases considered by the panels. Also, the Board shall maintain a web page under the auspices of the Court or the Bar that provides a database of its advisories.

FOR THE COURT:
January 9, 2008 Christine M. Durham
Chief Justice

Complaints should be sent to Matty Branch, Appellate Court Administrator, Utah Supreme Court, P. O. Box 140210, Salt Lake City, UT 84114-0210; email address mattyb@email.utcourts.gov

Utah Standards of Professionalism and Civility
(By order dated October 16, 2003, the Utah Supreme Court accepted the report of its Advisory Committee on Professionalism and approved these Standards.)

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.

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.

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.

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.

5. Lawyers shall not lightly seek sanctions and will never seek sanctions against or disqualification of another lawyer for any improper purpose.

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.

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.

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.

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.

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.

11. Lawyers shall avoid impermissible ex parte communications.

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 as such correspondence is specifically invited by the court.

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.

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.

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.

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.

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.

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.

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.

20. Lawyers shall not authorize or encourage their clients or anyone under their direction or supervision to engage in conduct proscribed by these Standards.