Posted: November 26, 2013

Utah Courts

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3 thoughts on “Rules Governing Utah State Bar”
  1. Theodore Weckel

    Although I agree with the general tenor of this rule, I think that we need to be a careful in terms of restricting a lawyer’s speech during closing argument, particularly in the criminal defense context. Under Strickland v. Washington, 466 U.S. 668, 681, 688 (1984), an attorney has a constitutional right to make reasonable tactical decisions and an “overriding mission of vigorous advocacy.” Counsel plays a crucial role in the adversarial system. Id. at 685. Thus, if defense counsel has a blue collar jury, for example, and wants to refer to the prosecutor’s arguments as “stupid” because counsel determines that a blue collar jury will understand the term better than the term “egregious” for example, then the civility rules could intrude on a defendant’s right to zealous advocacy and the effective assistance of counsel.

     
  2. Theodore Weckel

    Additionally, in the criminal defense context, it would seem that zealous advocacy under Strickland v. Washington also means that defense counsel, in arguing before a judge as to the weakness of the prosecution’s case, should be allowed to underscore that weakness by using such terms as “preposterous” for example, to show the degree to which the prosecution’s argument is weak. Such language could be viewed as scornful or disrespectful, but the intent of counsel could be simply to show the degree to which opposing counsel’s argument is weak. Limiting the use of such descriptive language in this context might also be viewed as an impermissible restriction on the defendant’s right to the effective assistance of counsel under the Sixth Amendment to the US Constitution or the Utah constitution and counsel’s constitutional right to make tactical decisions under Strickland.

     
  3. Eric K. Johnson

    The Standards of Professionalism and Civility as a statement of generally good and worthwhile attorney behavior cannot be criticized, but when we start using the Standards to control freedom of expression, freedom of conscience, and freedom to address disputes with frankly and candidly, you’re creating a monster that will destroy effective advocacy.
    Adding comments (especially, but not only, the comments proposed) to the Standards will create a document so bloated as to discourage anyone from reading them.
    I mean really, now people want, through comment or otherwise, to have the Standards extend to:
    “appropriate dress?” – See proposed Comment to Standard #1
    “all expressions of discrimination on the basis of race, religion, gender, sexual orientation, age, handicap, veteran status, or national origin, or casting aspersions on physical traits or appearance.” – See proposed Comment to Standard #2. What does THIS substantively have to do with the argument and construction of law? No, I’m not advocating racial or other slurs, but with broad, ambiguous definitions of discrimination that would include everything from “veteran’s status” (what the hell?) to “casting aspersions on physical traits or appearance”–which all but invite people to look for offense or make it almost impossible not to be the object of offense–this does no one any good. Indeed, it makes lawyer look as though they don’t have the sense to be decent without a detailed, patronizing rule book.
    Adding “official” comments to the Standards only serves to dilute them, open them to ridicule, and make them tools for manipulation and exploitation. Who dares to define “appropriate dress?” Who should?