Background: The Standards of Professionalism and Civility. Legal Status of the Utah Standards of Professionalism and Civility

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1 The Criminal Defense Lawyer and the Standards f Prfessinalism and Civility V. Lwry Snw Utah Assciatin f Criminal Defense Lawyers, 2016 Annual St. Gerge Retreat Backgrund: The Standards f Prfessinalism and Civility The cnsequences f incivility are grave it increases litigatin csts, fails t prmte clients legitimate interests, and diminishes the public s respect fr the legal prfessin and its ability t benefit sciety. Our prfessin has by traditin been a learned and respected ne, but respect must be cnstantly earned and deserved. Public trust and cnfidence in the American system f justice depend in significant part n the integrity and high standards f prfessinal behavir t which every lawyer (and judge) shuld aspire. Prmting the Standards f Prfessinalism and Civility, Christine M. Durham, Utah Bar Jurnal, Dec. 19, In 2001, the Utah Supreme Curt created the Advisry Cmmittee n Prfessinalism. That cmmittee drafted Utah s Standards f Prfessinalism and Civility. In 2003, the Utah Supreme Curt adpted the Standards f Prfessinalism and Civility. Utah s federal trial curts endrsed the standards: The curt adpts the Utah Standards f Prfessinalism and Civility t guide attrney cnduct in cases and prceedings in this curt. Utah Dist. Lcal Rules f Practice, DUCiv R83-1.1(g) In 2009, Utah mdified the attrney s ath t include Utah s Standards f Prfessinalism and Civility. Legal Status f the Utah Standards f Prfessinalism and Civility The standards are aspiratinal; they are nt mandatry. In Arbgast Family Trust v. River Crssings, LLC, a represented party btained a certificate f default withut ntifying the defendant, wh was als represented by cunsel. Althugh the defendant s cunsel had nt yet frmally entered an appearance in the actin, the defendant s cunsel had cmmunicated penly with plaintiff s cunsel befre the default was entered abut the case and pssible settlement. The defendant filed a mtin t set aside the default judgment, and the trial curt denied the mtin UT 40, 238 P.3d 1035; see als Aghdasi v. Saberin, 347 P.3d 427 (citing Arbgast and hlding that the standards are nt mandatry ). The rules f civil prcedure establish minimum requirements that litigants must fllw; the standards f prfessinalism supplement thse rules with aspiratinal guidelines that encurage legal prfessinals t act with the utmst integrity at all times. 40. A party s cunsel can and shuld simultaneusly cmply with the rules f civil prcedure and the standards f prfessinalism and civility

2 Our standards f prfessinalism and civility ften prmulgate guidelines that are mre rigrus than thse required by the Utah Rules f Civil Prcedure and the Utah Cde f Prfessinal Cnduct. 40. Justice Durrant cncurred in the result and argued that Standard 16 shuld be incrprated int the Utah Rules f Civil Prcedure. 50. The civility standards are nt a basis fr disciplinary actin. See Keith Call, D the Standards f Prfessinalism and Civility Have Teeth?, Utah Bar Jurnal Vl. 27 N. 3. In Peters v. Pine Meadw Ranch Hme Assciatin, 2007 UT 2, 1, 151 P.3d 962, the Utah Supreme Curt refused t reach the merits f an appeal because a party s briefs were replete with unfunded accusatins impugning the integrity f the curt f appeals panel that heard the cases belw. In impsing the sanctin, the curt reasned, We have sught t encurage the bar t aspire t prfessinalism and civility in the practice f law thrugh ur adptin f the Standards f Prfessinalism and Civility. While these standards are nt binding, we encurage members f the bar t study and fllw them. Had cunsel in the cases at bar bserved these standards, he and his clients wuld nt have incurred the severe sanctins we impse tday. The curt based its sanctin n Rule 24(k) f the Utah Rules f Appellate Prcedure, 1 but in ding s, the curt discussed the attrney s vilatin f the Utah Standards f Prfessinalism, specifically, standards 1 and 3: 1. Lawyers shall advance the legitimate interests f their clients, withut reflecting any ill-will that clients may have fr their adversaries, even if called upn t d s by anther. Instead, lawyers shall treat all ther cunsel, parties, judges, witnesses, and ther participants in all prceedings in a curteus and dignified manner. 3. Lawyers shall nt, withut an adequate factual basis, attribute t ther cunsel r the curt imprper mtives, purpse, r cnduct. Lawyers shuld avid hstile, demeaning, r humiliating wrds in written and ral cmmunicatins with adversaries. Neither written submissins nr ral presentatins shuld disparage the integrity, intelligence, mrals, ethics, r persnal behavir f an adversary unless such matters are directly relevant under cntrlling substantive law. 1 All briefs under this rule must be cncise, presented with accuracy, lgically arranged with prper headings and free frm burdensme, irrelevant, immaterial r scandalus matters. Briefs which are nt in cmpliance may be disregarded r stricken, n mtin r sua spnte by the curt, and the curt may assess attrney fees against the ffending lawyer. 2

3 In Gff v. Utah Funding Cmmercial, Inc., 2 Judge Dee Bensn impsed Rule 11 sanctins against an attrney, and further added that the attrney s lack f factual basis in the accusatins he made against ppsing cunsel, and ther unprfessinal cnduct, vilated the Utah Standards f Prfessinalism and Civility. 3 Briefs In Advanced Restratin, L.L.C. v. Prisks, 2005 UT App 505, 126 P.3d 786, the Utah Curt f Appeals ruled in favr f a party that had used uncivil remarks in its brief, but in a lengthy ftnte, the curt stated, Althugh we rule in favr f Advanced in this appeal, we are dismayed by the unprfessinal and inapprpriate language used by Advanced in its brief, where it states that bth Landlrd and Tenant ught t be ashamed f themselves, and repeatedly refers t ppsing cunsel s arguments as revlting, disingenuus, nnsensical, insulting t the intelligence f the Curt, ridiculus, and reprehensible. Dergatry references t thers r inapprpriate language f any kind has n place in an appellate brief and is f n assistance t this curt in attempting t reslve any legitimate issues presented n appeal. State v. Ck, 714 P.2d 296, 297 (Utah 1986) (per curiam). We als remind cunsel that, as lawyers, they are bund by the Rules f Prfessinal Cnduct, which require lawyers t maintain the decrum f the tribunal, and that [r]efraining frm abusive r bstreperus cnduct is a crllary f the advcate s right t speak n behalf f litigants. Utah R. Prfessinal Cnduct 3.5 cmt. Additinally, the Standards f Prfessinalism and Civility, prmulgated by the Utah Supreme Curt, urge lawyers t avid hstile, demeaning, r humiliating wrds in written and ral cmmunicatins with adversaries. Utah Standards f Prfessinalism and Civility 3. Finally, we advise cunsel that appellate briefs must be free frm burdensme, irrelevant, immaterial, r scandalus matters. Briefs which are nt in cmpliance may be disregarded r stricken, n mtin r sua spnte by the curt, and the curt may assess attrney fees against the ffending lawyer. Utah R.App. P. 24(j). In Superir Receivable Services v. Pett, 2008 UT App 225, 191 P.3d 31, the curt f appeals ruled against a party and, in additin, cautined the party abut the uncivil remarks made in the lsing party s brief: On a separate nte, we cautin Pett s cunsel regarding the language used in his briefs t this curt. Our Standards f Prfessinalism and Civility prvide that lawyers shall treat all ther cunsel, parties, 2 Case N. 2:09-cv-00680, U.S. District Curt, District f Utah. 3 Id., Memrandum Decisin at 9, Dcket N

4 judges, witnesses, and ther participants in all prceedings in a curteus and dignified manner. Utah Standards f Prfessinalism *35 & Civility 1. Pett s appellate brief s descriptin f the district curt s ruling as inane and a mst incredible leap f illgical, irratinal, unreasnable, fallacius, and specius lack f reasning fails t grant the district curt the dignity and respect it deserves. We als cautin that [e]ven where a lawyer s unprfessinalism r incivility des nt warrant sanctins, it ften will nevertheless diminish his r her effectiveness, Peters v. Pine Meadw Ranch Hme Ass n, 2007 UT 2, 20, 151 P.3d 962, and in extreme cases can result in the assessment f fees against the ffending lawyer r even the striking f substantive arguments t the client s detriment, see id In Rbinsn v. Baggett, 2011 UT App 250, 263 P.3d 411, the curt held that the unique circumstances f the case warranted cnsideratin f a secnd mtin fr relief frm judgment where the ther party had submitted an rder fr the trial curt s signature that did nt prperly reflect the judge s determinatin in the case. The curt f appeals reasned, Permissin t prepare an rder reflecting a ruling frm the bench shuld nt be treated by either party as an pprtunity t negtiate fr a wish list f preferred terms. Instead, bth parties shuld attempt t agree n an accurate recitatin f the trial curt s actual ruling. See Utah Standards f Prfessinalism and Civility (8) ( When permitted r required by curt rule r therwise, lawyers shall draft rders that accurately and cmpletely reflect the curt s ruling. ). If the parties cannt agree n the substance f the ruling after a reasnable effrt, further clarificatin shuld be sught frm the trial curt. Trend tward strnger enfrcement f civility standards. See, e.g., Prestn and Lawrence, Incentivizing Lawyers t Play Nice: A Natinal Survey f Civility Standards and Optins fr Enfrcement, U. MICH. JOURNAL OF LAW REFORM, Vl. 48 Issue 3 (arguing that vilating creeds shuld be linked t tangible cnsequences such as judicial sanctins). Utah Standards f Prfessinalism and Civility Preamble A lawyer's cnduct shuld be characterized at all times by persnal curtesy and prfessinal integrity in the fullest sense f thse terms. In fulfilling a duty t represent a client vigrusly as lawyers, we must be mindful f ur bligatins t the administratin f justice, which is a truth-seeking prcess designed t reslve human and scietal prblems in a ratinal, peaceful, and efficient manner. We must remain cmmitted t the rule f law as the fundatin fr a just and peaceful sciety. 4 Id. (emphasis added). 4

5 Cnduct that may be characterized as uncivil, abrasive, abusive, hstile, r bstructive impedes the fundamental gal f reslving disputes ratinally, peacefully, and efficiently. Such cnduct tends t delay and ften t deny justice. Lawyers shuld exhibit curtesy, candr and cperatin in dealing with the public and participating in the legal system. The fllwing standards are designed t encurage lawyers t meet their bligatins t each ther, t litigants and t the system f justice, and thereby achieve the twin gals f civility and prfessinalism, bth f which are hallmarks f a learned prfessin dedicated t public service. We expect judges and lawyers will make mutual and firm cmmitments t these standards. Adherence is expected as part f a cmmitment by all participants t imprve the administratin f justice thrughut this State. We further expect lawyers t educate their clients regarding these standards and judges t reinfrce this whenever clients are present in the curtrm by making it clear that such tactics may hurt the client's case. Althugh fr ease f usage the term curt is used thrughut, these standards shuld be fllwed by all judges and lawyers in all interactins with each ther and in any prceedings in this State. Cpies may be made available t clients t reinfrce ur bligatin t maintain and fster these standards. Nthing in these standards supersedes r detracts frm existing disciplinary cdes r standards f cnduct. 1. Lawyers shall advance the legitimate interests f their clients, withut reflecting any ill-will that clients may have fr their adversaries, even if called upn t d s by anther. Instead, lawyers shall treat all ther cunsel, parties, judges, witnesses, and ther participants in all prceedings in a curteus and dignified manner. 2. Lawyers shall advise their clients that civility, curtesy, and fair dealing are expected. They are tls fr effective advcacy and nt signs f weakness. Clients have n right t demand that lawyers abuse anyne r engage in any ffensive r imprper cnduct. 3. Lawyers shall nt, withut an adequate factual basis, attribute t ther cunsel r the curt imprper mtives, purpse, r cnduct. Lawyers shuld avid hstile, demeaning, r humiliating wrds in written and ral cmmunicatins with adversaries. Neither written submissins nr ral presentatins shuld disparage the integrity, intelligence, mrals, ethics, r persnal behavir f an adversary unless such matters are directly relevant under cntrlling substantive law Lawyers shall never knwingly attribute t ther cunsel a psitin r claim that cunsel has nt taken r seek t create such an unjustified inference r therwise seek t create a "recrd" that has nt ccurred. (Standards 5 20 Nt Included Here) 5 But see Ted Weckel, Regarding the Standards f Prfessinalism and Civility and the Use f Disparaging Language as a Tactical Decisin During a Criminal Trial, Utah B. Jurnal, Vl. 27 N. 2 (arguing that cnsistent with the Standards f Prfessinalism and Civility defense attrneys are permitted under Rule (3) t disparage ppsing cunsel, the ther party, r his r her evidence where such matters are directly relevant under cntrlling substantive law and that [s]uch disparagement f a party s psitin is relevant, and has ccurred rutinely by bth parties in the criminal law cntext particularly during clsing argument ). 5

6 Evidentiary Issues and the Standards f Prfessinalism and Civility Preservatin Rule An issue is cnsidered preserved nly if it is timely and specifically raised with supprting evidence r legal authrity. See Utah Rules f Appellate Prcedure 24(a)(5)(A); Badger v. Brklyn Canal C., 966 P.2d 844, 847 (Utah 1998). Must state bjectins at the right time. See State v. Harris, 2012 UT 77, 289 P.3d 591 (hlding that defense cunsel waived a Batsn challenge by nt making the bjectin at the right time, even where the trial curt judge invited cunsel t make the recrd f the bjectin later). Mere mentin is insufficient. Must state basis. Objectin n ne grund des nt preserve appeal n alternative grunds fr bjectin. Required t have a recrd f the bjectin Civility in Evidentiary Objectins Pre-trial bjectins Objectins during trial Pinting ut flaws in ppsing cunsel s evidence 6