Impolite Attorneys?! Here?!

The Deseret Morning News, published in Salt Lake City, reports that lawyers and judges are concerned about the loss of civility among the state's lawyers:

Reflecting an aggressive drive to be "Rambo litigators," court officials say attorney behavior is at a point that it is souring both professional and personal relationships in the legal field.

Bottom line, according to one seasoned Utah attorney, is that some are becoming real jerks.

But there is debate as to how to solve this sinking civility.

In a report of the Utah Supreme Court's Advisory Committee on Professionalism in 2003, then
Chief Supreme Court Justice Richard Howe asked for a survey of practicing lawyers to find if they felt there was a problem with professionalism in Utah. Nearly all attorneys surveyed came back saying they felt there was a "significant problem."

I don't do much courtroom practice anymore, so I'm not in touch, but this reminds me of the kind of thing that I first saw demonstrated at a seminar by Gerry Spence. He showed us how to wrest control of the courtroom from the judge and take over the jury with eye contact, facial expressions and flouting the court's ruling.

I spent 13 years as a public defender in a small rural county, and I was always troubled by the emphasis at defense attorney seminars on winning at any cost. The speakers always paid lip service to the rules of ethics, but their main focus was explaining that, while prosecutors were supposed to pursue the truth, defense attorneys were free to confuse the jury, make arguments not supported by the evidence, and basically assume that their job was to get the defendant off.

I always used every defense available to me and pointed out weaknesses in the state's case, but I was never able to make arguments that didn't make sense to me. I just couldn't be persuasive when I knew what I was saying didn't add up. Maybe that's why I'm not a rich lawyer today. I'm hardly even middle class, as far as that goes.

I don't know what creates an atmosphere of incivility, unless it is the example of other successful attorneys. We regularly see attorneys soliciting clients. A judicial nominee was just approved by the Senate who had practiced for years in Utah without being a member of the bar and hadn't paid dues in the jurisdiction where he was licensed. Television lawyers regularly ask questions they know are inadmissable because they know that the jury isn't able to put such evidence out of their minds as instructed by the court.

The other element I think may be behind this trend is the expectation of clients. They always want the meanest, "baddest," aggressive attorney available, so attorneys try to cultivate that image, especially when their clients are present. They butt in, interrupt, shout, even risk contempt to make the point. It used to be that attorneys had to be careful what they said to the press, but unless there's a tough gag rule in effect they get more and more loose about their pronouncements. I think also that competition for clients has made lawyers more willing to act tough and go beyond the bounds of propriety.