Saturday, September 20, 2008

An Open Letter to the newly established Utah Supreme Court Professionalism Counseling Program Board

An Open Letter to the newly established Utah Supreme Court Professionalism Counseling Program Board
From Eric K. Johnson
Introductory Note: At the Utah State Bar 2008 Spring Convention in St. George, the Utah Supreme Court announced issuance of Utah Supreme Court Standing Order No. 7 (effective April 1, 2008), establishing a program of “professionalism counseling” for members of the Utah State Bar, overseen by “a board of five counselors (the “Board”) to: (1) to counsel members of the Bar, in response to complaints by other lawyers or referrals from judges; (2) provide counseling to members of the Bar who request advice on their own obligations under the Court’s Standards of Professionalism and Civility (hereinafter the “Standards”).; (3) provide CLE on the Standards; and (4) publish advice and information relating to the work of the Board).
Members of the Board:
Before proceeding further, full disclosure: while I endorse professionalism and civility (in lower case letters), I dislike the “Standards of Professionalism and Civility.” I wrote an article in the Utah Bar Journal on the subject, “Standards for Standards’ Sake: Questioning the Standards of Professionalism and Civility.” You can review it on the Utah State Bar’s website at this link:
I realize that there are few who publicly disagree with the party line regarding 1) the alleged sorry state of professionalism and civility in the legal profession; and 2) the proclaimed crucial need for improvement, but I believe my sentiments actually reflect, at least for the most part, the private opinions of most, active attorneys in Utah.
Allow me to clarify my critique of the Standards and the newly created professionalism Counseling Program (and) Board in greater detail by revisiting portions of my article and by posing some questions that the Standards raise in my mind.
The Standards consist of twenty (20) normative, yet aspirational provisions. While I respectfully submit that most of these provisions are duplicative of existing norms governing Utah attorneys and/or sophomoric[1] (See Standard No. 11: “Lawyers shall avoid impermissible ex parte communications”) some are either beyond reproach (See Standards No. 12 and 20) or truisms not worthy or in need of further discussion (or any discussion, come to think of it; see Standard Nos. 2 and 7). Accordingly, I will question only those Standards I perceive to be most substantially flawed and/or accepted without much thought.
Standards 1 and 3
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.
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.
Is it inherently discourteous, undignified, demeaning or disparaging, hostile, demeaning, humiliating, or otherwise improper:
- to express to opposing counsel your honest belief that his case is frivolous, without merit, or filed or pursued in bad faith?
- to state to opposing counsel your honest belief that her behavior is dilatory, burdensome, unduly expensive, or harassing?
- to tell opposing counsel honestly that if he does not withdraw the false representations in his pleadings you will seek Rule 11 and/or other sanctions?
If so, when did litigators, who chose a profession based on an adversarial system of conflict resolution, become so thin-skinned that arguing—even heated arguing—over such points between them became unprofessional?
How does one address the misconduct of the opposing side without either risking running afoul of Standards 1 and/or 3 or being a wimp?
Where does one man’s honesty and candor become another’s incivility and offensiveness, especially if the ostensibly “offended” party can make hay out of it?
Are Standards 1 and 3 akin to the U.S. Supreme Court Justice Stewart’s standard for identifying hard-core pornography?, i.e., “I know it when I see it.”[2] If not, then what is it?
Won’t the Professionalism Counseling Program Board take every complaint it receives and lavish on each one “serious” and “careful” consideration merely by virtue of its being made?
You know what I mean: to avoid being labeled insensitive or inattentive to the supposedly wretched state of professionalism and civility in the profession[3] and to justify the Board’s existence, won’t you feel compelled to treat everything but the most obvious and petty alleged affronts as worthy of solemn consideration? And how will you then resist the temptation to view every situation with self-righteous 20-20 hindsight and offer advice as to how the accused “might have handled the situation better” irrespective of whether you conclude he/she violated a Standard?
While quotations such as, “Credibility is often directly tied to civility and professionalism”[4] sound Lincolnesque, they are as misleading as “Perception is reality.” Credibility is a matter of being honest and reliable; one can be a boorish jerk, yet be perfectly credible. By the same token, “killing them with kindness” is still murder, albeit with a healthy dose of civility.
If you are angered or wronged by a fellow attorney or the actions of her client, what are you to do?[5] Hug it out? Mediate? Increasingly, if you are frustrated and correspond with counsel to express that frustration or outrage, you are dismissed as uncivil and/or unprofessional (or Thomas Paine). Where lawyers (particularly litigators) operate within an adversarial system civility frequently must take a back seat to the messy, intransigent pursuit of truth and justice.
The way to diminish and marginalize you and dismiss your message these days is to label you uncivil. Labeling one uncivil is a clever, effective, and virtually effortless way to destroy ones message, or at least divert attention from the message to the messenger. One successfully painted as uncivil is seen (or not seen at all, as the case may be) as a mindless savage not worthy of consideration.[6]
One need only call a fool a fool to be attacked for being an uncivil extremist.[7]
Standard 4
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.
How can one ever effectively and reliably determine/conclude that opposing counsel “knowingly”:
1) attributed to other counsel a position or claim that counsel has not taken?; or
2) sought to create an unjustified inference that other counsel took a position or claim that counsel has not taken?
Just try to call opposing counsel on this during a hearing or in a memorandum and see how the judge reacts, you arrogant, whiney, upstart.
And even if you were to prove such misconduct, what are the odds of that attorney being effectively sanctioned (as opposed be being merely “counseled”) for it? After all, don’t you now have Standards 3 and 5 to contend with when contemplating making a complaint?
Standard 5
5. Lawyers shall not lightly seek sanctions and will never seek sanctions against or disqualification of another lawyer for any improper purpose.
Isn’t it hard enough to earnestly seek and obtain seek sanctions for any proper purpose without Standard 5 throwing up additional barriers?
If you add to the sorry state of doormat attorneys the new rule of Standard 5, do you not provide but more defenses for the hacks? Imagine this not so hypothetical scenario:
“Your Honor, opposing counsel’s request for sanctions on the ground that I counseled my client to lie under oath are lightly sought and for an improper purpose, in violation of Standard 5. Unless he can prove otherwise, I ask that the request for sanctions be dismissed and opposing counsel admonished for disparaging and humiliating me in violation of Standard 3.”
How would you handle such a situation, were you the judge?
I’ll tell you (because I’ve experienced similar situations, as I am sure many of us have): you would likely do very little.
Would you not hesitate, if not outright refuse, to stick your neck out, call a spade a spade, or take a position as to which attorney was in the wrong, and admonish and/or sanction the wrongdoer?
Or would you instead (be honest), on the pretext of maintaining that ever-so-paramount image of impartiality and detachment:
1) admonish both attorneys equally for being unprofessional—and even then not for inappropriate behavior, but for simply not getting along and causing you to address thorny matters you’d prefer to avoid?;
and then
2) direct both attorneys not to bring their “personal disputes” before you?;
and then
3) make it clear to the poor attorney who had the guts to complain that he’d think twice before ever seeking redress before you again?
If so, how will your approach as Board members differ from that of the hypothetical judge, who is right there in the thick of it, but refuses to take any substantive action to remedy the problem?
Standard 6
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.
How and why did the second clause of this Standard arise?
Can you give me an example of a promise or agreement that one could objectively identify as “reasonably implied by the circumstances or by local custom?”
Quick, within 30 seconds, can you:
- describe any “commitment reasonably implied by local custom?”
- identify any “local custom” by which “commitments are reasonably implied”?
If an attorney who is not a local does not infer what the local customs are, is she nevertheless bound by “commitments reasonably implied by local custom” and worthy of admonition if she inadvertently does not follow them? What if she deliberately rejects them as provincial or obsolete?
While the second clause of Standard 6 is well-meaning, isn’t it so amorphous and subjective as to:
1) the equivalent of “I know it when I see it?,” and as a consequence,
2) have the same normative force, i.e., virtually none?
Finally, when do “commitments reasonably implied by the circumstances or by local custom” hold sway over the universal and mandatory provisions of statutes and rules?
Standard 9
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.
Can any new rule or combination of rules ever do away with this time-tested trick?
Would any savvy attorney suggest that an offer of settlement was used against him to hold up discovery or delay trial?
Would any judge take seriously an allegation that Settlement (the all-important objective of litigation in the 21st century) could ever be broached for any improper purpose?
Doesn’t the potential for a legitimate settlement—no matter how remote it may be—always exist? Who has the guts to brand a settlement offer a sham (after all, if you do that, aren’t you violating Standards 1 and 3)?
Thus, even in the most hotly contested matters is it not virtually impossible to show a lawyer held out the potential of settlement for illegitimate purposes?
Isn’t a violation of Standard 9, as with the other Standards, on a practical basis virtually impossible to identify, much less sanction?
I mean really, who would ever accuse another lawyer of acting unprofessionally because he offered to settle? The complainant would catch more heat than the attorney complained of, no?
Standard 10
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.
Can you find the “obvious” flaw in this rule that renders it all but completely impotent? This is not a rhetorical question.
Standard 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.
Should an attorney ever be formally admonished under the Standards for following the letter of the law? If so, what effect would such a policy have on respect for the rules? How can one fairly be found at fault for following the letter of the law?
Furthermore, if compliance with rules constitutes “incivility” or unprofessional conduct what does that mean for the rule of law generally?
Are we to place civility above compliance with and enforcement of court rules and the law? If so, to what degree and to what end?
Standards 14 and 15
14. . . . 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 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.
“Lawyers shall never request an extension for the purpose of delay or tactical advantage?” Yeah, right. And throwing cigarette butts on the ground is littering. Which of these offenses—littering or violating Standard 14 and/or 15 is likely to be punished first?
(And did you notice the peculiar wording of Standard 14: “Lawyers shall never request an extension of time solely for the purpose of delay or to obtain a tactical advantage.” So does this mean that if you have a legitimate reason for seeking an extension you can tack on delay and/or tactical advantage? Why include “solely” in the wording at all?)
Have you ever asked an attorney claiming to have a scheduling conflict to provide corroborating evidence of the scheduling conflict? Most of you will probably answer, “No.” But why?
I’ll tell you why: because a convention has arisen that if an attorney claims a scheduling conflict, we are to accept it as gospel, and somewhere along the line it became received wisdom challenging a claimed scheduling conflict is worse than exploiting a fellow attorney’s good will by lying about a scheduling conflict.
Now many (if not all) of us know when we’re being hustled by a chronic scheduling-conflict-claiming shyster, but we’ve been taught (or more accurately, shamed into accepting) that challenging a request for an extension is worse than simply giving in and granting continuance after ill-gotten continuance. What principled basis is there for this?
Unless a lawyer is willing to ferret out false claims of need for extensions or schedule changes, are Standards 14 and 15 are of any practical benefit anyway?
Standard 16
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.
(Actually, a comment first: To its credit, here’s a standard that, if violated, has at least a better than even a chance of being proven it was violated.)
What’s so terribly wrong about defaulting a party worthy of default, and doing so without flagging the inattentive opposing attorney?
Besides, Rule 4 of the Utah Rules of Procedure already provides, in subparagraph (c)(1):
The summons . . . shall state the time within which the defendant is required to answer the complaint in writing, and shall notify the defendant that in case of failure to do so, judgment by default will be rendered against the defendant.
(emphasis added)
Why, when Rule 4 already mandates notice to the defendant of the possibility of default, was it felt necessary to create essentially another notice requirement with Standard 16?
Additionally, does Standard 16 create a possible conflict between it and Utah Rules of Civil Procedure, Rule 55, which contains no requirement that notice be given to opposing counsel in advance of seeking default?
If so, why not repeal Standard 16 and amend Rule 55 to include a notice provision?
Moreover, wouldn’t obeying Standard 16 basically allow an ethically bankrupt opposing side to delay proceedings by failing to participate in the case and relying on the opposing attorney’s Rule 16 obligation of “notifying other counsel,” in advance, at which point the scheming “lazy” attorney finally files his responsive pleading so that the case is decided on the precious merits?
Rule 55 is already honored in the breach. Did we really need to eviscerate it even more with Standard 16?
Standards 17, 18, and 19
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.
With respect to Standards 17 through 19, lawyers are already subject to provisions of the Utah Rules of Civil Procedure, the Utah Rules of Evidence, and even the Utah Code when engaging in the discovery process, and these rules already arguably prescribe the same conduct (and proscribe misconduct) for which Standards 17 through 19 were promulgated, do they not?
Moreover, would you not agree that Standards 17 through 19, like the rules of civil procedure and evidence, are so vulnerable to self-serving interpretation and construction that promulgating even more subjective rules on discovery abuses will do nothing more to curtail discovery abuses than the Rules of Civil Procedure and the Rules of Evidence already do (or don’t, as the case may be)?
I’ve seen attorneys rail against those who serve 26 interrogatories, who serve 80 requests for admission, and request a copy of a party’s driver license (front and back). Who’s right? Who’s wrong? Is it a question of deciding on a case by case basis? If so, then what good are general standards in a case-by-case setting?
And just what is an “artificially restrictive manner” anyway? Is that Justice Stewart I hear?
This new Professionalism and Civility Board is one of those things that every attorney will agree is needed, but for other attorneys, not for themselves. Such sentiments give rise to a stone thrower’s paradise. Am I wrong? Let me know if and when a member of the Bar complains of himself to the Board.
With due respect, yet candidly, any time anything is organized for “others’ benefit” (read: “Well, guys, how can we describe ourselves and our purpose without using the term ‘busybodies’?”[8]) you’re—we’re—in trouble.
I’ve gone on record before, and I’ll state it again:
“In reviewing the Standards of Professionalism and Civility, I see no pre-existing need that is filled by their passage, no flaw in the existing rules of professional conduct that the Standards remedy.” (Standards for Standards’ Sake: Questioning the Standards of Professionalism and Civility, Utah Bar Journal, June 2005)
The same can be said of the Board.
“Most, if not all, of the Standards, as currently constituted, do little to lead good lawyers or bad lawyers to be any better than they would have been in their absence. In this regard the Standards of Professionalism and Civility do little to address or cure any lack of professionalism and civility in the profession.” (Id.)
The same can be said of the Board. There’s no point in sugar-coating it.
Why is all this attention being focused on professionalism and civility when there are so many other issues more worthy of our attention as lawyers? I could contend (sincerely) that the fashion sense of Utah attorneys is deplorable and needs to be addressed and rehabilitated by having the Supreme Court and/or Bar establish:
a program of “dress and grooming counseling” for members of the Utah State Bar, overseen by “a board of five stylists to: (1) to counsel members of the Bar in response to complaints by other lawyers or referrals from judges of attorneys who wear belts with suspenders (ahem—braces), brown shoes with blue suits, too much perfume, fishnet stockings, etc.; (2) provide counseling to members of the Bar who request advice on their own fashion blunders; (3) provide CLE on contemporary tie widths and hairstyles; and (4) publish advice and information relating thereto.
I mean, come on. Some “problems” are best left to themselves because the cure is worse (or at least no better) than the disease. And just as it won’t kill me if I see another crew neck sweater and tie combination, will the profession really suffer a fatal blow if I criticize or disagree in the strongest terms without fear that it will be taken as disrespect or a personal attack?
In all seriousness, the Standards of Professionalism and Civility are about as effective a means of fostering the principles of Professionalism and Civility as are warning labels on cigarettes as a means of discouraging smoking. Professionalism and Civility problems do not stem from a lack of rules or counseling, for Pete’s sake.
If your best solution to the perceived professionalism and civility problem—and such a “problem” is insoluble on so many levels—turn your attentions and energies toward more pressing and substantive matters. Before we get any more caught up in professionalism and civility concerns, let’s focus on justice and equity for all first, and then see how much attention professionalism and civility still need.

[1] To borrow from the field of intellectual property, I utilize this word as “merely descriptive” and not for any other purpose. I considered “oxymoronic” in place of “sophomoric,” but that term does not express the full, precise meaning I wish to convey.
[2] Jacobellis v. Ohio, 378 U.S. 184, 197 (1964).
[3] On what objective evidence does everyone who bemoans the professed decline of professionalism and civility base their conclusion?
[4] Peters v. Pine Meadow Ranch Home Ass'n,
151 P.3d 962, 967 (Utah 2007).
[6]; Peters v. Pine Meadow Ranch Home Ass'n,
151 P.3d 962(Utah 2007).
[8] Please don’t take this personally, Board (your intentions are pure, but your means are wanting). If you do, such is an indictment of the Standards of Professionalism and Civility. If satire is deemed violative of the Standards, then satire and the Standards cannot co-exist, and one must be discarded. Don’t let the door hit you on the way out, Standards.

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