Posted: June 13, 2007

Utah Courts

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10 thoughts on “Rules of Professional Conduct”
  1. Anonymous

    Several months ago I attended an ethics CLE in which the presenter discussed the Pine Meadow Ranch Association case. In that case, in the name of enforcing non-mandatory civility guidelines, and in contravention of most existing First Amendment law, and after propounding an inaccurate description of the attorney in question’s conduct, the Utah Supreme Court stated that the petitioners were right on the merits, but then denied petitioner any relief because the attorney for the petitioners was supposedly uncivil by questioning the decision of the Utah Court of Appeals (a decision the Supreme Court admitted was indeed wrong and inexplicable). In other words, the Utah Supreme Court held oral arguments on the merits, determined that the Utah Court of Appeals was wrong and that the petitioner was right on the merits, but then punished the petitioner for criticizing the Utah Court of Appeals! The Utah Supreme Court’s decision in this case ranks as one of the most despicable judicial abuses of power I have seen, and it appears they now want to position the profession for more of the same. I oppose the proposed rule change, as it appears designed to allow the Utah Supreme Court to engage in more mischief.

     
  2. mitch barker

    I am not sure it’s fair to require an oath to strictly observe the rules of civility. Those rules are good, but I agree with the notion that they are to be aspired to, rather than required at the risk of an action against the license.

     
  3. Sam McVey

    The concern I have is the Standards of Professionalism and Civility are quite general and while we all know what their overall goal is, each individual standard is somewhat ambiguous. It is difficult to require someone to comply strictly with a general or ambiguous concept. I suggest leaving them as hortatory standards rather than allowing people to use them as a club in a misconduct complaint. THe current oath seems to fulfill its purpose.
    The Standards are useful–if I believe an attorney is being unprofessional, I will send him or her into the hall with a copy of the standards and tell the attorney to come back into court after reading them. That usually takes care of the issue. But I don’t agree with putting them in the oath becuas of their generality and the prospect for their inclusion creating a potential for future courtroom arguments over whether an attorney should be disbarred or for violating his or her oath because he or she was obstreporous in setting a deposition. Rule 37 works just fine in those cases and nothing else is needed for sanctions purposes.
    Thank You,
    Judge S.D. McVey
    (801) 429-1067

     
  4. John Morris

    Civility is a good thing and the Standards are a thoughtful effort to promote it. However, placing adherence to the Standards on the same footing as adherence to the Rules of Professional Conduct is confusing. I assume that it is not the purpose of this amendment to make violations of the Standards a cause for discipline. If that is true, then a Committee Note to that effect will be helpful.

     
  5. Margaret Tarkington

    My only question is whether as part of the attorney oath, an attorney will be able to be disciplined or otherwise sanctioned for a failure to adhere to the standards. It was my understanding (and the Utah Supreme Court has so stated) that the standards were to be non-binding and a form of encouragement. I am certainly a strong proponent of greater civility and professionalism in the practice of law–particularly between opposing counsel, towards clients of opposing counsel, and most especially in discovery disputes. However, I thought it unfortunate that the Utah Supreme Court chose to “enforce” these standards in the Peters case in January 2007–not as a means of protecting a party abused by the opposing attorney and not to encourage civility between opposing counsel but, instead, to counter statements made in briefs regarding the lower court and its decision. The Rules of Professional Conduct only allow discipline for statements made regarding the judiciary that fall within the New York Times standard for all public officials–that is, the person making the statement must know it was false or make it with reckless disregard as to its truth or falsity. In Peters, the Utah Supreme Court made no such finding, and avoided the legal standard by striking the briefs under Rule of Appellate Procedure 24K and summarily ruling for the other party–even though the Supreme Court recognized that the lower court had actually made both the factual and legal errors alleged by the offending attorney. The Court thus imposed a most serious penalty against the client of the offending attorney (summarily ruling against her and affirming an erroneous decision) as punishment for the attorney’s alleged incivility to the court. Even extreme discovery abuses involving incivility have not generally resulted in such a sanction. To the extent the standards on professionalism and civility are used in such a manner, I think further “enforcement” rather than true “encouragement” is not necessarily a good idea.

     
  6. Roger Bryner

    The idea that a bunch of stupid old farts (yes that would be you Utah judges) are holding “incivility” to a higher standard of punishment than LYING or CHEATING or BREAKING THE RULES that attorneys act under with regards to the CONSTITUTION is telling.
    Justice in Utah is a joke. And the Court of Appeals and Supreme Court have made it so. Along with the cowerdice of attorneys who don’t challenge these tyrants in federal court.
    Look for more Judge Lewis situtations in the future, and for whatever respect the Courts had to vanish.

     
  7. Eric Overby

    I am in agreement with my colleagues, particularly Judge McVey (Hi, Sam!). The Civility Code is wonderfully aspirational, and apparently Judge McVey is making good use of it, but it is far to ambiguous to make it the subject of disciplinary complaints.

     
  8. Roger Bryner

    The comments on this rule reflect how out of control justice in Utah is.
    A bunch of bad judges are more concerned about establishing their cult like suppression of desent in the Courts, and the expense of free speech and effective advocacy.
    You should be able to call someone a liar when they are one. You should be able to call the Court of Appeals what it is, and point out how consistantly bad it’s opionions are. Without the right to redress grievances Utah is a state without justice, and without the 1st amendment.
    I have no faith that this will be fixed without a campaign to remove appellate and supreme court judges through election.

     
  9. Patrick Shea

    Short declarative sentences lend clarity. I would suggest the following for the Preamble:
    A lawyer is an officer of our legal system, a citizen and represents clients. A lawyer has a particular responsibility to help establish and maintain a system of justice which has integrity. Every lawyer shall take the Attorney’s Oath upon admission to practice law in Utah. As a member of the Utah State Bar every licensed lawyer shall observe the law and be subject to the Rules of Professional Conduct and The Rules of Lawyer Discipline and Diasbility.
    I would then have the oath be three sentences, without any semicolons.
    “I do solemnly swear I will support, obey and defend the Constitution of the United States and the Constitution of Utah. I will discharge the duties of attorney and councelor at law as an officer of the courts of Utah and the United States with honesty,fidelity, professionalism and civility. I will strictly observe the Rules of Professional Conduct and the Standards of Professionalism and Civility by the Utah State Bar and the Utah Supreme Court.
    Interested in talking with anyone, if there are any questions or comments.
    Patrick Shea #2929

     
  10. Richard Hutchins

    I fully support the concept of civility in the practice of law – and my experience reveals that, for the most part, most attorneys act accordingly.
    The most important point, however, is that the law involved is more important – if an attorney lacks civility but makes an important contribution to the analysis of the law, the attorney’s civility (or lack thereof) is immaterial. Civility should not be a requirement to practice law – someone who is a brilliant legal scholar may be precluded from contributing to the promotion of the law simply because he/she lacks civility skills; this would be improper. The promotion of the law is the goal of the legal profession. Promotion of civility is the goal of life! Let’s not let the practice of law require the incorporation of the lessons of life!