Posted: October 29, 2007
Rules Regulating the Utah State Bar
Petition to Amend Rule 14-404.
USB 14-0404. Active status lawyers: MCLE, NLCLE and admission on motion requirements. Amend. Requires at last one hour of MCLE in professionalism and civility.
I took a break from private practice a few years ago by going into administrative and then into editorial practice. At the time I was in private practice, I observed that nearly everyone knew that civility and professionalism were expected of attorneys and that, as a bottom line, what goes around comes around. (There were a few knotheads out there, but they were the vast minority.) Therefore, when the Supreme Court promulgated the Rules of Professionalism and Civility, I thought that they were superfluous and unnecessary. I took a pro bono civil case a couple of years ago and, to my dismay, discovered why the rules are necessary. I was stunned at the total lack of civility and professionalism manifested by opposing counsel during every phase of the litigation practice. And, this attorney was not new to the practice. His lack of civility bordered on the unethical. On the basis of that experience, I understood why these rules – and now probably why this requirement – are necessary. It is a very sad commentary on the state of legal practice in this state.
I am generally not opposed to the proposed requirement since it does not appear to increase the total number of hours necessary for continuing legal education compliance. I might suggest however, to be more effective, rather than require all attorneys to complete one hour of professionalism and civility, why not have only those attorneys who have demonstrated difficultly being professional and or civil complete a certain number of hours as part of their sanction? As a side note, I might also humbly suggest, there are certain members of our judiciary, few as they may be, who could benefit from a course in professionalism and civility as well.
Re USB 14-0404: This rule is a problem for attorneys who practice outside of Utah but who are admitted to practice in Utah. There must be easy and cost efficient MCLE for these out-of-state attorneys, otherwise the requirement becomes burdensome to meet.
Furthermore, there is a lack of such MCLE right now that is online or readily available through the Utah State Bar.
Who would teach such MCLE? Every attorney has his/her moments, though many would profess to otherwise be “civil”. Would you propose to make a particular attorney as “moral leader” for the rest of the bar members?
Why not make a rule that addresses conduct and civility and not a CLE requirement that addresses those items? Just because an attorney takes class on professionalism or civility does not mean that he/she will then practice those items.
Simply target undesireable behavior with sanctions or address what appears to be undesireable behavior with judges who can find attorneys in contempt; preaching to people who are adults and who know better but choose to act poorly will do nothing.
After 25 years of private, corporate, and public practice as a member of four state bars, and having practiced in courts literally from coast to coast, this amendment strikes me as superfluous and will just generate yet another cottage industry in selling compliance programs for overly-specific requirements. Of course, attorneys should be civil; but is it necessary to devote one of the 3 ethics hours to a “be nice” lecture?
This is my opinion and does not necessarily reflect the opinion of the Department of Justice, nor any of its components.
Eric A. Overby, Assistant United States Attorney
I believe the proposed amendment to Rule 14-404, requiring one hour annually of “civility” CLE, would impose an undue burden on active members of the Utah State Bar who live and practice outside Utah, because “civility” CLE courses may not be required or offered in other states. Currently, for example, I am not aware of any “civility” courses offered in Arizona (with the exception of one NLCLE course that is nearly impossible to register for, even for the new lawyers for whom it is mandatory, because of space limitations). I would thus be forced to travel to Utah annually to attend a course on civility. This burden could perhaps be alleviated if “civility” CLE courses were offered on demand via streaming video and/or audio over the Internet, but I personally get much more benefit if I can attend a live session.
Even if the logistics problems were resolved, this proposed rule change suffers from a more fundamental problem. I seriously question whether requiring attorneys to attend one hour of “civility” CLE will actually make attorneys more civil in their interactions. I do appreciate the recent efforts by the Utah Supreme Court and the Utah State Bar to promote civility, but if any attorney has not absorbed the message by now, I cannot imagine how that attorney will suddenly become civil simply by attending one hour of CLE on civility. This proposed amendment amounts to nothing more than an additional, unnecessary burden imposed by the ever-expanding state bar bureaucracy. Therefore, I respectfully request that the proposed amendment to Rule 14-404 be rejected.
Beus Gilbert PLLC
I am opposed to amending Rule 14-404 (Active status lawyers: MCLE, NLCLE and admission on motion requirements) to provide that each lawyer admitted to practice in Utah must complete, every two-year period “a minimum of three hours of
accredited ethics or professional responsibility as defined in Rule 14-408,” with “one of the three hours of ethics or professional responsibility shall be in the area of professionalism and civility.”
We already had rules of professional conduct before the Supreme Court issued its additional (and arguably duplicative) Rules of Professionalism and Civility. The Rules of Professionalism and Civility by themselves, though obviously well-intentioned, have by themselves made (as I see it) no discernible improvement to professionalism and civility. They are as effective in promoting professionalism and civility as a motivational poster is at promoting “Teamwork.”
I would hope it is self-evident that uncivil, unprofessional attorneys are not a consequence of too few rules or insufficient training. Would anyone disagree with me when I contend that subjecting lawyers to more rules and making all lawyers take courses on professionalism and civility will not, of itself, rid the profession of the uncivil lawyers?
I believe that the cause of the decline in professionalism and civility is not the result of too few rules and insufficient training, but of a hyper-competitive field, too many attorneys, and the fact that there are so many lawyers that that one can too easily operate “anonymously” and act with impunity, such that we cannot effectively police each other within our own ranks.
The solution? Those who can sanction bad behavior not only should, but must sanction it, or incivility and unprofessional conduct will proliferate. Who can sanction? Judges. Who should sanction? Another new section of the Bar? Heaven forbid. No, it’s judges who should sanction bad behavior. They are the ones who see it in real time and are best positioned to nip it in the bud.
Why do judges permit so much uncivil and unprofessional conduct? My theory is that they 1) do not wish to appear biased when confronted with a dispute between attorneys. Sanctioning an attorney, no matter how deserving he may be of sanction, requires the judge to favor one side and disfavor the other. Some judges feel that doing so is wrong; and 2) fear being reported for judicial misconduct by the sanctioned attorney(s) if the judge sticks her neck out and sanctions.
The solution?: a rule along these lines: judges can sanction any attorney, for any offense articulated in any court rule or statute or order, as many as 12 times per year by imposing a fine of no more than $100 and/or a jail term of no more than 24 hours without fear of being reported for judicial misconduct. Harsh? Yes, but not crushingly so. Effective? I can’t imagine that such a rule won’t all but eliminate 90% of the ticky-tacky uncivil, unprofessional behaviors that currently go unchecked.
Would attorneys have to be extra cautious and prudent with such a rule in place? Yes. Is that such a bad thing? No. Could this rule be abused such that good lawyers get framed? Yes, but that already happens, and besides, right now it’s so easy to get away with “low-grade” unprofessional conduct that the times demand a stiffer approach. My only other fear is that lazy judges would sanction both attorneys when faced with a complaint, but no solution is perfect, and what I propose is better than the laxity we have in place now.
Many years ago, the California Bar began requiring MCLE hours relating to substance abuse and elimination of bias. I did not see any evidence of a reduction in either after the requirement went into effect, but plenty of people had to find the “right” hours just prior to filing a compliance card. In essence, the requirement just gave CLE providers two more class types to provide, and attorneys two more headaches in complying with MCLE.
Similarly, I do not believe classes on professionalism and civility will have any effect. In my experience, the vast majority of attorneys are civil and professional, and the exceptions do not impress me as likely candidates for proving the efficacy of an hour of remedial training every two years. Leave the current requirements alone. If people believe something should be done, simply suggest that ethics classes may include discussions of professionalism and civility.
Requiring an hour of CLE on “civility” will have no effect on the actual practice of law. The current recommendations are well known and well publicized in the Bar Journal. The people who need to have their attitudes adjusted on civility believe they are being civil when they misbehave with a soft tone of voice and a smile on their faces. They behave as they do because they believe it will impress their clients and to make up for their own shortcomings in actual advocacy skills. An hour of CLE will have show no results in the real world. The proposal should be rejected.
I am opposed to additional CLE requirements [even if no more hours required, additional specialized courses required], in an area about which I believe the majority of active attorneys understand the fundamentals. Perhaps stronger sanctioning authority for judges, who are in a position to have abuses brought to their attention, or who actually observe instances of actionable incivility, might be more effective to curb the abuses that do occur.
To which reporting period will the new rule apply?
For example, my reporting period is 2007-2008. Will the new requirement apply to my 2007-2008 report, or will it apply to my subsequent 2009-2010 report? The new rule should contain a statement clarifying that ambiguity.