Article

• Publication year: 2013
• Pages: 45
• Citation: Vol. 26 No. 6 Pg. 45

Article Vol. 26 No. 6 Pg. 45 Utah Bar Journal December, 2013

November, 2013

CIVILITY REVISITED

Donald J. Winder.

In May 2009, the Utah Bar Journal published my article on the movement toward civility in our profession and enforcement of our responsibility in this regard. Donald J. Winder & Jerald V. Hale, Enforcing Civility in an Uncivilized World, 22 Utah B.J. 36 (May/June 2009). Since publication of that article, various jurisdictions across the country have, like Utah, pushed the concept of civility from the periphery of professional responsibility to the forefront. Accordingly, I update the earlier work to highlight these changes in Utah and around the country.

Recent cases from Utah courts underscore the growing recognition that the concept of civility is no longer merely aspirational. See, e.g., Arbogast Family Trust v. River Crossings, LLC, 2010 UT 40, ¶ 43, 238 P.3d 1035, 1043 ("We encourage lawyers and litigants to follow [the Utah Standards of Professionalism and Civility.]"); Featherstone v. Schaerrer, 2001 UT 86, ¶ 16, 34 P.3d 194 ("[C]ourts are endowed with the inherent authority to regulate attorney misconduct."); Robinson v. Baggett, 2011 UT App. 250, ¶ 27 n.14, 263 P.3d 411 (citing the Utah Standards of Professionalism and Civility as authority); State v. Doyle, 2010 UT App. 351, ¶ 12, 245 F.3d 206 (stating conduct of all lawyers "should be characterized at all times by personal courtesy and professional integrity in the fullest sense of those terms" (citation and internal quotation marks omitted)); Superior Receivable Sews. v. Pett, 2008 UT App. 225, ¶ 12, 191 P.3d 31 (mem.) (citing to Standard 1, Utah Standards of Professionalism and Civility while reiterating a previous Utah Supreme Court case holding incivility may warrant sanctions and will often diminish a lawyer's effectiveness); Advanced Restoration, LLC v. Priskos, 2005 UT App. 505, ¶ 37 n.13, 126 F.3d 786 (citing Standard 3, Utah Standards of Professionalism and Civility, that " [d]erogatory references to others or inappropriate language of any kind has no place in an appellate brief (citation and internal quotation marks omitted)).

The Utah Supreme Court has made clear counsel should comply with the Utah Standards of Professionalism. In Arbogast Family Trust, the court stated,

A party's counsel can and should simultaneously comply with the rules of civil procedure and the standards of professionalism and civility. Our standards of professionalism and civility often promulgate guidelines that are more rigorous than those required by the Utah Rules of Civil Procedure and the Utah Code of Professional Conduct. Adherence to those standards promotes cooperation and resolution of matters in a "rational, peaceful, and efficient manner." Utah Standards of Professionalism and Civility pmbl. The rules of civil procedure establish minimum requirements that litigants must follow; the standards of professionalism supplement those rules with aspirational guidelines that encourage legal professionals to act with the utmost integrity at all times.

2010 UT 40, ¶ 40. The court highlighted the commitment to enforcement of civility in the practice of law in Utah noting, "We encourage lawyers and litigants to follow [the Utah Standards of Professionalism and Civility 14-301 (16) ], and we caution that lawyers who fail to do so without justification may open themselves to bar complaints or other disciplinary consequences if their conduct also runs afoul of the Utah Rules of Professional Conduct." Id. ¶ 43.

As another example, in Doyle, the Utah Court of Appeals called into question certain tactics a prosecutor used in failing to fully respond to discovery requests. Highlighting the need for civility in this particular context, the court cited to the Utah Standards of Professionalism and Civility and observed, " [F]or all lawyers, and especially for prosecutors...