ENFORCING CIVILITY IN AN UNCIVILIZED WORLD

By Donald J. Winder1 and Jerald V. Hale2

"That man is guilty! That man there is a slime! He is a slime! If he is allowed to go free, then something real wrong is goin' on here!"

"Mr. Kirkland, you’re out of order."

"You're out of order, you're out of order! This whole trial is out of order!"

Al Pacino as Arthur Kirkland in And Justice for All3

We have all seen the entertainment industry's impressions of the legal profession. Fired up attorneys in court yelling at witnesses, belittling their opponents, and battling the judge hammer and tong over every perceived slight or unfavorable ruling. Despite the artistic license entertainment writers take in creating these characters for the screen, we know all too well the caricature of the uncivil attorney has a basis in reality and in many cases is not far off the mark. We live in an increasingly disrespectful and competitive world, and our profession is not immune from the general discourtesies that permeate society. The nature of our adversarial system of law can also foster an environment where it is often believed antisocial behavior can get you noticed and get results.

But does the adversarial system necessarily require incivility on the part of the participants? Does the fact that each party enters a matter with the intent to triumph over the other side require disrespect of one’s opponent? Winston Churchill did not think so. After the Japanese bombing of Singapore and Hong Kong in 1941, Winston Churchill dispatched a letter to the Japanese Ambassador announcing that a state of war existed between England and Japan. After noting the acts of aggression, Churchill's letter ended with these words: “I have the honour to be, with high consideration, Sir, Your obedient servant, Winston S. Churchill.” Churchill commented in his memoirs, “Some people did not like this ceremonial style. But after all when you have to kill a man it costs nothing to be polite.”4 Clearly, the ability to maintain civility can be accomplished, even under the most adversarial situations.

The Litigation Counsel of America (“LCA”) supports civility in all aspects of the legal profession. As a result of the efforts of LCA members in state and local bar associations and courts throughout the country, a quiet revolution has been taking place as bar associations and courts seek to put a greater emphasis on civility in the legal profession. Rules of civility, have been adopted in numerous jurisdictions.5

In the mid 1990s the incivility in the profession that had come to bear from the quest for “zealous” representation began to be called into question. As noted in a review article in 1994, “[z]ealous advocacy is the buzz word that is squeezing decency and civility out of the law profession. . . . [It is] the modern day plague which infects and weakens the truth finding process and makes a mockery of the lawyers’ claim to officer of the court status.”6 In response to the quest for more civilized dealings in the practice of law, in 2003 the Arizona Supreme Court eliminated the obligation of attorneys to be “zealous” advocates of their clients in favor of a duty to “act honorably” in furtherance of their client's interests.7 Indiana, Louisiana, Montana, Nevada, New Jersey, Oregon and Washington have likewise omitted all references to zealousness in their rules, preambles, and commentaries.8

In 2003, the South Carolina Bar amended its Lawyer’s Oath to include “to opposing parties and their counsel, I pledge fairness, integrity, and civility, not only in court, but also in all written and oral communications.” In Utah, the Attorney’s Oath was recently modified to include a promise to “faithfully observe the Standards of Professionalism and Civility….”9 It is believed that Utah is only the second state to follow the South Carolina model.

The next inevitable step in the progression toward more civility in our profession—namely, how to enforce the civility provisions that have been enacted and to which lawyers are urged to follow. While there have always been professional sanctions available for violating rules of professional conduct, is there more that should or could be done to enforce civility in the profession?

Courts around the country have entered the fray to find a way to enforce what are generally seen as non-binding suggestions on civility. For example, in the Fifth Circuit case, In re FirstCity Bankcorp. of Texas, Inc.,10 a “zealous” lawyer referred to opposing counsel, which included an Assistant U.S. Attorney, as a “stooge,” a “puppet,” a “deadhead,” and an “underling who graduated from a 29 th tier law school.” The bankruptcy court in which the case was originally heard did not agree with the lawyer’s tactics and slapped him with a $25,000 sanction. When the lawyer appealed to the Fifth Circuit, he argued that his behavior was an appropriate trial tactic, allowing him to recover more money for his clients and giving him the upper hand in settlement negotiations. The Fifth Circuit disagreed, and found the lawyer’s conduct to be “egregious, obnoxious, and insulting.” The $25,000 sanction was deemed appropriate and upheld by the Court. A quick search of recent case law will reveal numerous examples where courts around the country have begun to draw lines in the sand regarding incivility in the practice of law.11

In the Utah Supreme Court case Peters v. Pine Meadow Ranch Home Ass’n.,12 the petitioner was appealing an appellate court affirmation of a trial court’s grant of summary judgment to a homeowners’ association regarding the enforceability of its covenants, conditions, and restrictions (“CCR’s”). Rather than reach the issues raised in the appeal, the Utah Supreme Court focused on the petitioners’ briefs and the uncivilized language and tone of the briefs to affirm the holding of the lower court.13 Specifically, the Court noted:

petitioners’ briefs . . . are replete with unfounded accusations impugning the integrity of the court below. These accusations include allegations, both direct and indirect, that the [Court of Appeals] panel intentionally fabricated evidence, intentionally misstated the holding of case, and acted with improper motives. Further, petitioners’ briefs are otherwise disrespectful of the judiciary.14

Rather than rule on the merits of the petitions, the Court dismissed the petition and ordered the offending attorney to pay the other side’s attorney fees, which at the time had amounted to approximately $17,000. In sum, the Court noted if attorneys continue to adopt the “scorched earth” approach to advocacy, they do so at their own peril. In choosing to disregard the petitioners’ briefs, the Peters Court relied on Rule 24 (k) of the Utah Rules of Appellate procedure which provides:

[a]ll briefs under this rule must be . . . free from burdensome, irrelevant, immaterial or scandalous matters. Briefs which are not in compliance may be disregarded or stricken, . . . and the court may assess attorney fees against the offending lawyer.15

Further, in arriving at its decision the Court noted the Utah Standards of Professionalism and Civility16 as well as Rule 8.2 of the Utah Rules of Professional Conduct which provides “[a] lawyer shall not make a public statement that the lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications of a judge . . . .”17

Following up on the issue of enforcement of civility, the Utah Supreme Court has created what is believed to be the first program in the country of professionalism counseling for members of the Utah Bar.18 Specifically, the program functions through a board of five counselors, appointed by the Utah Supreme Court, who generally counsel and educate members of the Bar concerning the Standards of Professionalism and Civility. The Court recommended the counselors would serve a four-fold purpose: (1) to counsel members of the Bar in response to complaints by other lawyers or referrals from judges; (2) to provide counseling to members of the Bar who request advice on their own obligations under the Standards of Professionalism and Civility; (3) to provide CLE on the Standards; and (4) to publish advice and information relating to the work of the counselors. Of these functions, it is the counseling function, which is most critical to the notion of enforcing civility in the profession.

The goal is to provide a method in which incidents of incivility or unprofessional conduct could be reported and addressed. The focus, however, would not be punitive in nature, but rather, educational. In responding to a complaint from a fellow attorney or judge, the counselors may issue a written advisory to the offending lawyer, or may simply counsel with the lawyer in a personal meeting, with the goal of educating the offending lawyer as to alternative modes of practice in harmony with the Standards. In conjunction with this direct contact with offending attorney, the counselors would publish an annual report concerning the Standards it has interpreted, as well as periodically publishing selected portions of its advisories in the Utah Bar Journal for the benefit of practicing lawyers.

It appears both bar associations and courts are ready to step in and force the issue where efforts at self-policing have apparently failed to achieve the desired results. Every LCA member should urge their respective states to: 1) adopt principles of civility, 2) devote part of any CLE requirement solely to those principles,19 3) establish judicial precedence enforcing those principles, 4) create a counseling program, and 5) modify attorney’s oaths to eliminate “zealous” advocacy and require adherence to principles of civility. As recognized by the Utah Supreme Court, education is the key component to any successful effort to enforce civility. As attorneys learn what is expected in the practice of law, the “culture of belligerence,” like the typewriter and carbon paper, will become a relic of a bygone era.

1 Don Winder is managing partner in the firm Winder & Counsel, PC, Salt Lake City , Utah . Mr. Winder has practiced for over 35 years and he has a varied trial practice focusing on business litigation. He is a proud member of ABOTA. Mr. Winder has also been privileged to serve on the Utah Supreme Court Committee on Professionalism, tasked with developing the Utah Standards of Professionalism and Civility, modifying the Attorney’s Oath and recommending the establishment of a program of professionalism counseling for members of the Utah Bar.

2 Jerry Hale is an associate with Winder & Counsel, PC. Mr. Hale has practiced for over eight years and also has a varied trial practice.

3 Valerie Curtain & Barry Levinson, And Justice for All, Columbia Pictures, 1979.

4 Churchill, Winston S., Memoirs of the Second World War, Boston, Houghton Mifflin, 1959.

5 Some, but certainly not all, of these jurisdictions include Arizona, California, Florida, Georgia, Texas, Utah and even the San Diego County Bar Association.

6 Kathleen P. Browe, Comment, A Critique of the Civility Movement: Why Rambo Will Not Go Away, 77 Marq. L. Rev. 751, 767 (1994).

7 See Ariz. R. S.Ct. 42.

8 See Indiana Rules of Professional Conduct, www.in.gov.judiciary/rules/prof_conduct/index.html; Louisiana Rules of Professional Conduct, www.lsba.org/2007/memberservices/codeofprofessionalism.asp; Montana Rules of Professional Conduct, www.montanabar.org/associations/7121/files/ethicsrule
comparison.pdf; Nevada Rules of Professional Conduct, www.leg.stat.nv.us/courtrules/rpc.html; New Jersey Rules of Professional Conduct, www.judiciary.state.nj.us/rpc97.htm; Oregon Rules of Professional Conduct, www.osbar.org/_docs/rulesregs/orpc.pdf; Washington Rules of Professional Conduct, www.courts.wa.gov/rules/?fa=court_rules.list&group=ga&set=rpc.

9 Found in the preamble: A Lawyer’s Responsibilities, Utah Supreme Court Rules of Professional Conduct.

10 282 F.3d 864 (5th Cir. 2002).

11 See e.g., GMAC Bank v. HTFC Corp, No. 06-5291 (E.D. Penn. Filed February 29, 2008) (attorney sanctioned $13,026.00 for actions during deposition described as hostile, uncivil and vulgar); Steven Kreytak, Lewd Gesture Gets Lawyer 90 Days in Jail, Austin American Statesman, April 17, 2008; Hagen v. Faherty, 66 P.3d 974, 979-80, (Ct. App. NM 2003) (court admonishes attorneys for uncivil behavior in briefs, bemoaning “culture of belligerence” that has taken root in legal system).

12 151 P.3d 962 ( Utah, 2007).

13 Id. at 962.

14 Id.

15 Id. at 964.

16 Standard 3 of the Utah Standards of Professionalism and Civility (“USPC”) provides, “[l]awyers shall not, without an appropriate factual basis, attribute to . . . the court improper motives, purpose or conduct.” Standard 1 of the USPC provides, “lawyers shall treat all other counsel, parties, judges, witnesses, and other participants in all proceedings in a courteous and dignified manner.” www.utcourts.gov/courts/sup/civility.htm.

17 151 P.3d at 964.

18 See Utah Supreme Court Standing Order No. 7, issued January 9,2008, effective April 1, 2008; http://www.utcourts.gov/resources/rules/urap/Dupctso.htm#7.

19 See e.g., Rule 14.404 of the Utah Supreme Court Rules of Professional Practice (for each reporting period active attorney CLE shall include three hours of ethics or professional responsibility, one of which shall be in the area of professionalism and civility).

20 See Hagen v. Faherty, Supra, 66 P.3d at 979-80.