PROFESSIONALISM & CIVILITY for TRANSACTION LAWYERS Utah

PROFESSIONALISM & CIVILITY FOR TRANSACTION LAWYERS Utah Supreme Court Rules of Professional Practice

Chapter 14. Rules Governing the Utah State Bar

Article 3. Standards of Professionalism and Civility Rule 14-301. Standards of Professionalism and Civility. Current Preamble

A lawyer's conduct should be characterized at all times by personal courtesy and professional integrity in the fullest sense of those terms. In fulfilling a duty to represent a client vigorously as lawyers, we must be mindful of our obligations to the administration of justice, which is a truth- seeking process designed to resolve human and societal problems in a rational, peaceful, and efficient manner. We must remain committed to the rule of law as the foundation for a just and peaceful society.

Conduct that may be characterized as uncivil, abrasive, abusive, hostile, or obstructive impedes the fundamental goal of resolving disputes rationally, peacefully, and efficiently. Such conduct tends to delay and often to deny justice.

Lawyers should exhibit courtesy, candor and cooperation in dealing with the public and participating in the legal system. The following standards are designed to encourage lawyers to meet their obligations to each other, to litigants and to the system of justice, and thereby achieve the twin goals of civility and professionalism, both of which are hallmarks of a learned profession dedicated to public service.

We expect judges and lawyers will make mutual and firm commitments to these standards. Adherence is expected as part of a commitment by all participants to improve the administration of justice throughout Utah. We further expect lawyers to educate their clients regarding these standards and judges to reinforce this whenever clients are present in the courtroom by making it clear that such tactics may hurt the client's case.

Although for ease of usage the term "court" is used throughout, these standards should be followed by all judges and lawyers in all interactions with each other and in any proceedings in Utah. Copies may be made available to clients to reinforce our obligation to maintain and foster these standards. Nothing in these standards supersedes or detracts from existing disciplinary codes or standards of conduct.

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1. Candidate Preamble for Transactional Attorneys

A transactional attorney’s conduct should be characterized at all times by personal courtesy and professional integrity in the fullest sense of those terms. The primary goals for attorneys engaged in a transaction practice are to “negotiate in a manner that accurately represents their client and the purpose for which they were retained,” and to “successfully and timely conclude a transaction in a manner that accurately represents the parties’ intentions and has the least likely potential for litigation.”1

Lawyers should exhibit courtesy, candor, and cooperation in dealing with all parties involved. The following standards are designed to encourage lawyers to meet their obligations to each other and to clients. Where there is no monitor of these standards in business transactions, the need for voluntary civility is great.2 Transactional attorneys recognize that the twin goals of civility and professionalism are hallmarks of a learned profession dedicated to legal service in business transactions. 2. Alternative Candidate Preamble for Transactional Attorneys

A transactional attorney’s conduct should be characterized at all times by personal courtesy and professional integrity in the fullest sense of those terms. In fulfilling a duty to represent a client vigorously as lawyers, we must be mindful of our obligations to the administration of justice and the efficient resolution of a business transaction. As transactional lawyers, we must accurately represent our clients and the purpose for which we were retained in a manner that has the least likely potential for litigation.3

Conduct that may be characterized as uncivil, abrasive, abusive, hostile, or obstructive impedes the fundamental goal of efficiently completing a business transaction.

Lawyers should exhibit courtesy, candor, and cooperation in dealing with all parties involved. The following standards are designed to encourage lawyers to meet their obligations to each other, to clients, and to the justice system. As there is no supervision or oversight over the implementation of these standards in business transactions, the need for voluntary civility is great.4 Transactional attorneys recognize that the twin goals of civility and professionalism are hallmarks of a learned profession dedicated to legal service in business transactions.

1 See State Bar of California. California Attorney Guidelines of Civility and Professionalism. 2 See Canaday, Richard. “Golden Rules: Tips for Fostering Civility in Business Transactions.” Oregon State Bar Bulletin. May 2013. 3 See State Bar of California. California Attorney Guidelines of Civility and Professionalism. 4 See Canaday, Richard. “Golden Rules: Tips for Fostering Civility in Business Transactions.” Oregon State Bar Bulletin. May 2013.

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Rule 1

Current:

Lawyers shall advance the legitimate interests of their clients, without reflecting any ill-will that clients may have for their adversaries, even if called upon to do so by another. Instead, lawyers shall treat all other counsel, parties, judges, witnesses, and other participants in all proceedings in a courteous and dignified manner.

1. Candidate Rule 1 for Transactional Attorneys:

Lawyers shall advance the best interests of their clients, without reflecting any ill-will that clients may have for other parties, even if called upon to do so by another. Instead, lawyers shall treat all other counsel and parties in a courteous and dignified manner. Lawyers should negotiate and conduct each transaction in a “cooperative manner and with informed agreement.5

2. Alternative Candidate Rule 1 for Transactional Attorneys:

Lawyers shall advance the best interests of their clients, without reflecting any ill-will toward other parties, even if called upon to do so by another. Instead, lawyers shall treat all other counsel and parties in a courteous and dignified manner. Lawyers should strive to create a foundation for future cooperation through the mutual agreement and satisfactory completion of a business transaction.6

Rule 2

Current: Lawyers shall advise their clients that civility, courtesy, and fair dealing are expected. They are tools for effective advocacy and not signs of weakness. Clients have no right to demand that lawyers abuse anyone or engage in any offensive or improper conduct.

1. Candidate Rule 2 for Transactional Attorneys:

Lawyers shall advise their clients that civility, courtesy, and fair dealing are expected. They are tools for effective negotiating and not signs of weakness. Clients should refrain from demanding that their lawyers engage in negotiating tactics that are abusive or “not made in good faith.7

2. Alternative Candidate Rule 2 for Transactional Attorneys:

5 See State Bar of California. California Attorney Guidelines of Civility and Professionalism. 6 See Colorado Bar Association. Colorado Principles of Professionalism. 7 See State Bar of California. California Attorney Guidelines of Civility and Professionalism.

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Lawyers shall advise their clients that civility, courtesy, and fair dealing are expected. They are tools for effective negotiating and not signs of weakness. Rule 3

Current:

Lawyers shall not, without an adequate factual basis, attribute to other counsel or the court improper motives, purpose, or conduct. Lawyers should avoid hostile, demeaning, or humiliating words in written and oral communications with adversaries. Neither written submissions nor oral presentations should disparage the integrity, intelligence, morals, ethics, or personal behavior of an adversary unless such matters are directly relevant under controlling substantive law.

1. Candidate Rule 3 for Transactional Attorneys:

Lawyers shall not, without an adequate factual basis, attribute to other counsel or party improper motives, purpose or conduct. Lawyers should avoid hostile, demeaning, or humiliating words in written and oral communications with other parties or counsel. At no point during negotiations shall a lawyer disparage the integrity, intelligence, morals, ethics, or personal behavior of another party or counsel unless such matters are based on undisputed facts. Rule 4

Current:

Lawyers shall never knowingly attribute to other counsel a position or claim that counsel has not taken or seek to create such an unjustified inference or otherwise seek to create a "record" that has not occurred.

1. Candidate Rule 4 for Transactional Attorneys:

Lawyers shall never knowingly attribute to other counsel or party a position or goal that is untrue or seek to create such an unjustified inference.

2. Alternative Candidate Rule 4 for Transactional Attorneys:

Lawyers should not ascribe a position to another counsel that counsel has not taken, or otherwise seek to create an unjustified inference based on counsel’s statements or conduct.8

8 See West Virginia Supreme Court of Appeals. Standards of Professional Conduct.

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Rule 5

Current:

Lawyers shall not lightly seek sanctions and will never seek sanctions against or disqualification of another lawyer for any improper purpose.

1. Candidate Rule 5 for Transactional Attorneys:

Lawyers shall not seek to influence clients’ negotiation tactics and goals for improper reasons.

2. Alternative Candidate Rule 5 for Transactional Attorneys:

Lawyers should strictly adhere to the spirit as well as the letter of these standards of professionalism and civility and encourage other lawyers, and clients, to abide by them as well.9 Rule 6

Current:

Lawyers shall adhere to their express promises and agreements, oral or written, and to all commitments reasonably implied by the circumstances or by local custom.

1. Candidate Rule 6 for Transactional Attorneys:

Lawyers shall adhere to their express promises and agreements made with any party involved in the negotiation, oral or written. In making representations concerning the facts of a matter, lawyers shall be accurate and indicate clearly the extent to which they have authority to bind the client.10 An attorney should avoid negotiating tactics that do not accurately reflect the client’s wishes or strategy or previous oral agreements.

2. Alternative Candidate Rule 6 for Transactional Attorneys:

Lawyers shall adhere to their express promises and agreements made with any party involved in the negotiation, oral or written, and will adhere in good faith to all agreements implied by circumstances or local customs.11

9 See South Carolina Bar. Standards of Professionalism. Adopted 2015. 10 See Canaday, Richard. “Golden Rules: Tips for Fostering Civility in Business Transactions.” Oregon State Bar Bulletin. May 2013. 11 See Minnesota State Bar Association. Professionalism Aspirations.

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Rule 7

Current:

When committing oral understandings to writing, lawyers shall do so accurately and completely. They shall provide other counsel a copy for review, and never include substantive matters upon which there has been no agreement, without explicitly advising other counsel. As drafts are exchanged, lawyers shall bring to the attention of other counsel changes from prior drafts.

1. Candidate Rule 7 for Transactional Attorneys:

When committing oral understandings to writing, lawyers shall do so accurately and completely. Lawyers shall clearly identify, for other counsel and all parties, all changes made in documents submitted for review.12 Rule 8

Current:

When permitted or required by court rule or otherwise, lawyers shall draft orders that accurately and completely reflect the court's ruling. Lawyers shall promptly prepare and submit proposed orders to other counsel and attempt to reconcile any differences before the proposed orders and any objections are presented to the court.

1. Candidate Rule 8 for Transactional Attorneys:

When preparing documents, lawyers shall draft agreements that accurately reflect and abide by controlling substantive law. Lawyers shall promptly prepare and submit documents to other counsel for timely review.

2. Alternative Candidate Rule 8 for Transactional Attorneys:

A lawyer should not participate in an action or the preparation of a document that is intended to circumvent applicable laws or rules.13 When preparing documents, lawyers shall draft agreements that accurately reflect and abide by controlling substantive law.

12 See Canaday, Richard. “Golden Rules: Tips for Fostering Civility in Business Transactions.” Oregon State Bar Bulletin. 13 See State Bar of California. California Attorney Guidelines of Civility and Professionalism. April 18 2007 draft, proposed long version.

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Rule 9

Current:

Lawyers shall not hold out the potential of settlement for the purpose of foreclosing discovery, delaying trial, or obtaining other unfair advantage, and lawyers shall timely respond to any offer of settlement or inform opposing counsel that a response has not been authorized by the client.

1. Candidate Rule 9 for Transactional Attorneys:

Lawyers shall not hold out the potential of signing or closing for the purpose of delaying negotiations or obtaining other unfair advantage, and lawyers shall timely respond to any drafts or offers or inform other counsel that a response has not been authorized by the client. Lawyers shall seek to achieve common goals in the preparation of agreements.14 Rule 10

Current:

Lawyers shall make good faith efforts to resolve by stipulation undisputed relevant matters, particularly when it is obvious such matters can be proven, unless there is a sound advocacy basis for not doing so.

1. Candidate Rule 10 for Transactional Attorneys:

Lawyers should avoid quarrels over matters of form or style and concentrate their energy and resources on matters of substance and content.15An attorney should use boilerplate provisions only to the extent they are appropriate as applied to the transaction. Rule 11

Current:

Lawyers shall avoid impermissible ex parte communications.

1. Candidate Rule 11 for Transactional Attorneys:

14 See Minnesota State Bar Association. Professionalism Aspirations. Adopted January 11, 2001. 15 See Canaday, Richard. “Golden Rules: Tips for Fostering Civility in Business Transactions.” Oregon State Bar Bulletin. May 2013.

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Where practical, agreements should be reduced to writing.16 In memorializing oral agreements, lawyers will do so without making changes in substance and will strive in good faith to state the oral understandings accurately and completely.17 Lawyers will take steps to assure that the final document executed by the parties is the document to which all parties have agreed.18 Rule 12

Current:

Lawyers shall not send the court or its staff correspondence between counsel, unless such correspondence is relevant to an issue currently pending before the court and the proper evidentiary foundations are met or as such correspondence is specifically invited by the court.

1. Candidate Rule 12 for Transactional Attorneys:

A lawyer should not knowingly draft a document or through silence permit a document to be drafted in a manner that permits the lawyer, the lawyer’s client, or a third party to take advantage of a term or provision, or of the absence of a term or provision to the disadvantage of the adversary in such a manner as the lawyer knows or believes that the adversary neither anticipates nor contemplates.19 In drafting documents, lawyers shall avoid language that is intentionally ambiguous or which is likely to create misunderstanding in the future. Rule 13

Current:

Lawyers shall not knowingly file or serve motions, pleadings or other papers at a time calculated to unfairly limit other counsel's opportunity to respond or to take other unfair advantage of an opponent, or in a manner intended to take advantage of another lawyer's unavailability.

1. Candidate Rule 13 for Transactional Attorneys:

Lawyers shall not knowingly send documents, set signing or closing dates, or otherwise schedule transaction events at a time calculated to unfairly limit other counsel’s opportunity to respond or to take other unfair advantage of an opponent or in a manner intended to take advantage of another lawyer’s unavailability. Lawyers shall not set

16 See West Virginia Supreme Court of Appeals. Standards of Professional Conduct. 17 See D.C. Bar. Voluntary Standards of Civility in Professional Conduct. 18 See Colorado Bar Association. Colorado Principles of Professionalism. 19 See South Carolina Bar. Standards of Professionalism.

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arbitrary deadlines.20 Lawyers should avoid negotiating tactics that are intended solely to gain an unfair advantage or take unfair advantage of a superior bargaining position.

2. Alternative Rule 13 for Transactional Attorneys:

Lawyers shall not knowingly send documents, set signing or closing dates, or otherwise schedule transaction events at either a time calculated to unfairly limit other counsel’s opportunity to respond or to take other unfair advantage of an opponent or in a manner intended to take advantage of another lawyer’s unavailability. Lawyers shall not set arbitrary deadlines.21 Meetings, conferences, and closing with opposing lawyers and clients will be scheduled at the most practical location.22 Rule 14

Current:

Lawyers shall advise their clients that they reserve the right to determine whether to grant accommodations to other counsel in all matters not directly affecting the merits of the cause or prejudicing the client's rights, such as extensions of time, continuances, adjournments, and admissions of facts. Lawyers shall agree to reasonable requests for extension of time and waiver of procedural formalities when doing so will not adversely affect their clients' legitimate rights. Lawyers shall never request an extension of time solely for the purpose of delay or to obtain a tactical advantage.

1. Alternative Rule 14 for Transactional Attorneys:

Lawyers shall advise their clients that they reserve the right to determine whether to grant accommodations to other counsel in all matters not materially affecting the negotiations or prejudicing the client’s interests, such as non-material drafting changes.

2. Alternative Rule 14 for Transactional Attorneys:

20 See State Bar of California. California Attorney Guidelines of Civility and Professionalism. 21 See id. 22 Oklahoma Bar Association. Oklahoma Bar Association: Standards of Professionalism. 23 See South Carolina Bar. Standards of Professionalism. Adopted 2015.

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Rule 15

Current:

Lawyers shall endeavor to consult with other counsel so that depositions, hearings, and conferences are scheduled at mutually convenient times. Lawyers shall never request a scheduling change for tactical or unfair purpose. If a scheduling change becomes necessary, lawyers shall notify other counsel and the court immediately. If other counsel requires a scheduling change, lawyers shall cooperate in making any reasonable adjustments.

1. Alternative Rule 15 for Transactional Attorneys:

Lawyers shall endeavor to consult with other counsel so that conferences, deadlines, and key transaction dates are scheduled at mutually convenient times. If a scheduling change becomes necessary, lawyers shall notify other counsel as soon as reasonably possible. If other counsel requires a scheduling change, lawyers shall cooperate in making any reasonable adjustments if circumstances permit. Rule 16

Current:

Lawyers shall not cause the entry of a default without first notifying other counsel whose identity is known, unless their clients' legitimate rights could be adversely affected.

1. Alternative Rule 16 for Transactional Attorneys:

An attorney should not participate in an action or the preparation of a document that is intended to circumvent or violate applicable laws or rules.24

2. Candidate Rule 16 for Transactional Attorneys:

In making representations concerning the facts of the matter, lawyers shall be accurate and indicate clearly the extent to which they have authority to bind the client.25 An attorney should avoid negotiating tactics that do not accurately reflect the client’s wishes or strategy or previous oral agreements.

24 See State Bar of California. California Attorney Guidelines of Civility and Professionalism. April 18 2007 draft, proposed long version. 25 See Canaday, Richard. “Golden Rules: Tips for Fostering Civility in Business Transactions.” Oregon State Bar Bulletin. May 2013.

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Rule 17

Current:

Lawyers shall not use or oppose discovery for the purpose of harassment or to burden an opponent with increased litigation expense. Lawyers shall not object to discovery or inappropriately assert a privilege for the purpose of withholding or delaying the disclosure of relevant and non-protected information.

1. Candidate Rule 17 for Transactional Attorneys:

With client approval, attorneys should consider giving each party permission to contact the employees of the other party for the purpose of promptly and efficiently obtaining necessary information and documents.26 Lawyers shall seek to resolve matters in a manner that minimizes legal expenses for all involved, reduces the risk of litigation, and accomplishes the goal of the client.27 Lawyers shall be mindful of value for the client and explore alternative methods of accomplishing the client’s goals more simply and economically.28 Rule 18

Current:

During depositions lawyers shall not attempt to obstruct the interrogator or object to questions unless reasonably intended to preserve an objection or protect a privilege for resolution by the court. "Speaking objections" designed to coach a witness are impermissible. During depositions or conferences, lawyers shall engage only in conduct that would be appropriate in the presence of a judge.

1. Candidate Rule 18 for Transactional Attorneys:

Lawyers should engage in a cooperative manner during all negotiations. Lawyers shall not take advantage of other counsel by trick or intimidation. During conferences with other counsel, lawyers shall allow for all parties’ goals to be represented and discussed. In drafting documents, lawyers shall avoid language that is intentionally ambiguous or which is likely to create misunderstanding in the future.

26 See State Bar of California. California Attorney Guidelines of Civility and Professionalism. April 18 2007 draft, proposed long version. 27 See Canaday, Richard. “Golden Rules: Tips for Fostering Civility in Business Transactions.” 28 See State Bar of California. California Attorney Guidelines of Civility and Professionalism.

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2. Alternative Rule 18 for Transactional Attorneys:

Lawyers should engage in a cooperative manner during all negotiations that would be appropriate in the presence of a judge or third party observer. Lawyers shall not take advantage of other counsel by trick or intimidation and should avoid negotiating tactics that are intended solely to gain an unfair advantage or take unfair advantage of a superior bargaining position. During conferences with other counsel, lawyers shall allow for all parties’ goals to be represented and discussed. Lawyers will strive for the efficient, ethical, and fair negotiation and consummation of business transactions.29 Rule 19

Current:

In responding to document requests and interrogatories, lawyers shall not interpret them in an artificially restrictive manner so as to avoid disclosure of relevant and non- protected documents or information, nor shall they produce documents in a manner designed to obscure their source, create confusion, or hide the existence of particular documents.

1. Candidate Rule 19 for Transactional Attorneys:

In responding to document or information requests, lawyers shall not interpret them in an artificially restrictive manner so as to avoid due diligence disclosures of relevant and non- protected documents or information, nor shall they produce documents in a manner designed to obscure their source, create confusion, or hide the existence of particular documents. Rule 20

Current:

Lawyers shall not authorize or encourage their clients or anyone under their direction or supervision to engage in conduct proscribed by these Standards.

29 See Maryland State Bar Association. Code of Civility. Adopted May 1997.

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ADDITIONAL THOUGHTS

"You catch more flies with honey . . ."

 sharp elbows are sometimes required to get through a tough negotiation or a challenging litigation; so be it.  But we nonetheless subscribe to the notion that, in general, you can indeed "disagree without being disagreeable."

“You can always do a slightly better deal, but that incremental dollar or windfall is not worth creating an imbalance that affects the relationship. You have to have the intuition to know when to say, ‘I’m going to make sure that we walk away feeling like we’ve both done well.” – Joanna Shields, President, Bebo.com Joanna Shields, Fortune, April 20, 2008 “The Best Advice I Ever Got”

You must never try to make all the money that’s in a deal. Let the other fellow make some money too, because if you have a reputation for always making all the money, you won’t have many deals.” – J. Paul Getty

To the extent possible:  try to keep a calm voice in interchanges with opposing counsel;  avoid hyperbole and histrionics;  don't shout, scream, literally pound the table with your fist or shoe, or writhe on the floor.  Don’t use voicemail to express your “inner” thoughts  Don’t’ attribute the style of the other counsel as to the [gender][race][religion][political views] of opposing counsel.

While you're screaming bloody murder on a conference call, email or voicemail, the other side is probably laughing at how out-of-control you are.

THE EFFECT YOU IMAGINE REALITY

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"What goes around, comes around"

 In law, as in poker, there are times when you hold all the right cards, and with leverage comes success.  But, in law as in poker, after each hand the cards are shuffled and dealt again, and leverage has a funny way of slipping away and crossing the table now and again.

“The only thing certain about any negotiation is that it will lead to another negotiation.” Leigh Steinberg

So, conduct yourself with opposing counsel in such a manner that, if a shift in the leverage happens to occur, you haven't built such a reservoir of resentment and lust for revenge.

“Develop relationships, not conquests. In sports we do repetitive business with the same individuals, don’t put them in a bad position by insisting on a one-sided deal or bragging. Win-win is the key to longevity.” -Leigh Steinberg, Forbes, Apr 19, 2016 “The Twelve Essential Steps of Win-Win Negotiations”

“I had this thesis that we always had to be moving forward and upward and win. Winning was critical in my strategy. And I discovered – unfortunately after the fact- that we could have won just as big by winning just a little bit less and letting a few other people take some wins off the table. When I was doing this, the goal was to win every single issue that came across the table. And that’s something as you get older you learn that it’s not necessary. There’s room for others to win.” -Michael Ovitz, former CEO of Disney, Harvard Business Review, Podcast, September 25, 2018

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