Article

• Publication year: 2014
• Pages: 32
• Citation: Vol. 27 No. 2 Pg. 32

Article Vol. 27 No. 2 Pg. 32 Utah Bar Journal April, 2014

March, 2014

REGARDING THE STANDARDS OF PROFESSIONALISM AND CIVILITY AND THE USE OF DISPARAGING LANGUAGE AS A TACTICAL DECISION DURING A CRIMINAL TRIAL

Ted Weckel

I write this article in response to Mr. Donald J. Winder's article entitled: Civility Revisited, which appeared in the November/ December 2013 edition of the Utah Bar Journal. Donald J. Winder, Civility Revisited, 26 Utah B. J. 45 (Nov./Dec. 2013). I agree with much of what Mr. Winder had to say about the need for civility and laud his presentation of a variety of recent cases from a few states that pertain to the civility issue. Nevertheless, I believe that a further explanation is warranted in regard to whether Utah's Standards of Professionalism and Civility, as Mr. Winder has portrayed them, strictly apply to the practice of law during a criminal trial. For that reason, I would like to elaborate on the parameters of Article 3, Rule 14-301(3) of the Standards of Professionalism and Civility.

Much of Mr. Winder's article pertains to issues of civility that have arisen between opposing counsel's communications outside of the courtroom. Undoubtedly, there is no need for uncivil communication between lawyers as they respectively prosecute their cases. Indeed, the case of In re Anonymous Member of S. Carolina Bar, 709 S.E.2d 633 (S.C. 2011), is a good example of how an attorney's communication to opposing counsel was impermissibly offensive and why it merited the issuance of a private letter of caution. In that case, an attorney's email to opposing counsel made a racial slur against the latter and also suggested that his daughter had purchased illegal drugs.

However, I believe that Mr. Winder makes another point which needs clarification. He states that there is a "sea change" occurring in the practice of law today throughout the country to the effect that notions of '"zealous [ness]'" or '"aggressive"' representation no longer temper the practice of law. Winder, supra, at 48. Mr. Winder only cites to a handful of state decisions to support this contention - one of which was the above South Carolina case.

However, Mr. Winder's statement, respectfully, appears to misstate the Utah and American common law regarding zealous representation generally and in the criminal law context specifically. Indeed, zealous advocacy is required by Rule 1.3, Comment 1 of the Utah Rules of Professional Conduct. Utah R. Prof'l Conduct 1.3, cmt. [9]. Zealous advocacy does not mean, of course, that counsel may disobey court orders or the professional rules. State v. Clark, 2005 UT 75, ¶¶ 35-36, 124 P.3d 235. However, Rule 14-301(3) of the Standards of Professionalism and Civility allows a lawyer with an adequate factual basis to attribute to counsel an improper motive, purpose, or conduct, or to...