Focus on Ethics & Civility

• Jurisdiction: Utah,United States
• Citation: Vol. 27 No. 3 Pg. 53
• Pages: 53
• Publication year: 2014

Focus on Ethics & Civility Vol. 27, No. 3 Pg. 53 Utah Bar Journal June, 2014

May, 2014

Do the Standards of Professionalism and Civility Have Teeth?

Keith A. Call

Yesterday, I received a postcard reminding me of my upcoming dentist appointment. This happened to coincide with an upcoming deadline for submitting articles to the Utah Bar Journal. This led me to ponder two questions: (1) Why are there more lawyer jokes than dentist jokes? (2) Do the Standards of Professionalism and Civility have teeth?

There are a number of excellent articles on the potency of our Standards of Professionalism and Civility (Civility Standards). See, e.g., Ted Weckel, Regarding the Standards of Professionalism and Civility and the Use of Disparaging Language as a Tactical Decision During a Criminal Trial, 27 Utah B. J. 32 (Mar/Apr. 2014); Donald J. Winder, Civility Revisited, 26 Utah B. J. 45 (Nov/Dec. 2013). In fact, the entire November/December 2006 issue of the Utah Bar Journal was dedicated to civility.

Here's a brief summary of what I believe the Civility Standards do and don't do.

The Civility Standards Are Aspirational and Are Not Binding (Yet?)

Referring to the Civility Standards, the Utah Supreme Court has stated that "these standards are not binding." Peters v. Pine Meadow Ranch Home Ass'n, 2007 UT 2, ¶ 22,151 P.3d 962. The court has also described the Civility Standards as "aspirational guidelines that encourage legal professionals to act with the utmost integrity at all times." Abrogast Family Trust v. River Crossings, LLC, 2010 UT 40, ¶ 40, 238 P.3d 1035.

However, in his recent article, Mr. Winder argues there is a "sea change" in Utah and elsewhere, and that there is a "growing recognition that the concept of civility is no longer merely aspirational." Winder, supra, at 45,48. Perhaps he is right, and the Civility Standards are growing adult teeth.

The Civility Standards Are Not a Basis for Disciplinary Action

Rule 14-509 of the Utah Supreme Court Rules Governing the Utah State Bar states the "Grounds for [attorney] discipline." Utah S. Ct. R. 14-509. "It shall be a ground for discipline for a lawyer to.. .violate the Rules of Professional Conduct." Id. R. 14-509(a). Rule 14-509 has no similar provision relating directly to the Civility Standards. In my research and experience, I am not aware of any case in which the Office of Professional Conduct has prosecuted a case based solely on an alleged violation of the Civility Standards...