1. Standards of Professionalism and Civility for lawyers who
never go to court.
Sun Valley, July 27, 2018
ken ashton || snell & wilmer

2. Why this Presentation?

3. What this Presentation is

4. What this Presentation is NOT

5. Justice Anthony Kennedy, 1997 Speech, ABA Annual Meeting
Civility
“[Civility…] is not some bumper-sticker slogan, ‘Have you hugged your adversary today?’ Civility is the mark of an accomplished and superb professional, but it is even more than this. It is an end in itself. Civility has deep roots in the idea of respect for the individual.”
Justice Anthony Kennedy, 1997 Speech, ABA Annual Meeting

6. In 2003, the Utah Supreme Court adopted the “Utah Standards of Professionalism and Civility” which create ethical standards for litigators that are in addition to the rules of professional conduct. These rules create standards of professional and civil conduct which apply predominately to litigators and which can be enforced by judicial supervision. Unprofessional conduct or lack of civility in transactional practices can be less obvious because of (1) the interests of the parties and (2) the manner in which negotiations and transactions are handled. Where much of the transactional practice is conducted without judicial supervision, trransactional attorneys have unique responsibilities.

7. 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 this State. 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.”

8. What About Transactional Attorneys?

9. PREAMBLE CANDIDATE TRANSACTIONAL
“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 transactional 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 great2. Transactional attorneys recognize that the twin goals of civility and professionalism are hallmarks of a learned profession dedicated to legal service in business transactions.
We expect lawyers will make mutual and firm commitments to these standards. Adherence will foster civility – and contribute to professionalism – in business transactions throughout this State. We further expect lawyers to educate their clients regarding these standards.”
1. See State Bar of California. California Attorney Guidelines of Civility and Professionalism. Adopted July 20, 2007
2. See Canaday, Richard. “Golden Rules: Tips for Fostering Civility in Business Transactions.” Oregon State Bar Bulletin, May 2013
TRANSACTIONAL

10. Kindergarten Rules
DON’T LIE.
DON’T STEAL.
DON’T HIT ANYONE.

11. Rule #1 CURRENT: SCENARIO:
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.
SCENARIO:

12. Rule #1 TRANSACTIONAL (?):
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”1.
1. See State Bar of California. California Attorney Guidelines of Civility and Professionalism. Adopted July 20, 2007).

13. Rule #2 CURRENT: SCENARIO:
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.
SCENARIO:

14. Rule #2 TRANSACTIONAL CANDIDATE:
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”1.
1. (see State Bar of California. California Attorney Guidelines of Civility and Professionalism. Adopted July 20, 2007).

15. Rule #3 CURRENT: TRANSACTIONAL CANDIDATE:
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 submission 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.
TRANSACTIONAL CANDIDATE:
Scenario 1: During negotiations, Buyer insists on earn-out. Seller responds: ?
Scenario 2: Seller wants to receive a Icb-5 rep. Buyer responds: ?
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.

16. Rule #4 CURRENT: TRANSACTIONAL CANDIDATE :
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.
TRANSACTIONAL CANDIDATE :
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.

17. Rule #5 CURRENT: TRANSACTIONAL CANDIDATE :
Lawyers shall not lightly seek sanctions and will never seek sanctions against or disqualification of another lawyer for any improper reason.
TRANSACTIONAL CANDIDATE :
Lawyers shall not seek to influence clients’ negotiation tactics and goals for improper reasons.

18. Rule #6 CURRENT: TRANSACTIONAL CANDIDATE :
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.
TRANSACTIONAL CANDIDATE :
Lawyers shall adhere to their express promises and agreements made with any party involved in the negotiation, oral or written. An attorney should avoid negotiating tactics that do not accurately reflect the client’s wishes or strategy or previous oral agreements.

19. “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”1
1. See Canaday, Richard. “Golden Rules: Tips for Fostering Civility in Business Transactions.” Oregon State Bar Bulletin, May 2013).

20. Rule #7 CURRENT: TRANSACTIONAL CANDIDATE :
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.
TRANSACTIONAL CANDIDATE :
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 review1. An attorney should use boilerplate provisions only if they apply to a transaction.
1. See Canaday, Richard. “Golden Rules: Tips for Fostering Civility in Business Transactions.” Oregon State Bar Bulletin, May 2013

21. REDLINING ISSUES POTENTIAL FOR SURREPTITIOUS CHANGES
Suppose I send you a signed, original, hard-copy contract and ask you to countersign and return it.
Do you do a word-for-word manual comparison, to make sure the hard copy matches the agreed electronic document?
If so, you'd be spending time that surely could be put to better use, especially (say) at the end of a fiscal quarter, when a lot of contracts are in negotiation at once and negotiator time is a scarce resource that has to be used economically.
But if you don't do a word-for-word comparison, how do you know I didn't surreptitiously change something before printing the document for signature?

22. REDLINING ISSUES
The overwhelming majority of lawyers would never try to pull something so underhanded. If you were to get caught, your reputation could be severely damaged. Other lawyers might start refusing to deal with you. Your negotiation partner (turned enemy) could well report you to the state bar.
However, even innocent mistakes happen:
Track-changes:
Internal version control (i.e. not making a new version after a draft had been circulated)
Is the redline provided correctly marked against the prior version that had previously circulated?

23. REDLINING ISSUES REAL-WORLD EXAMPLES OF SURREPTITIOUS CHANGES
Surreptitious changes to contract documents do happen. See, for example, Hand v. Dayton-Hudson, 775 F.2d 757 (6th Cir. 1985); in that case, the appellate court affirmed the trial court's judgment reforming (that is, editing after the fact) a release that had been surreptitously altered before signature.. In this case, Mr. Hand carefully retyped a release in such a way that the other part would never expect that changes had been made. 
The defendant was excused from not having read the new document because the general rule of being held responsible for contracts one signs, even if one has not read them, is not applicable when the neglect to read is not due to carelessness alone, but was induced by some stratagem, trick, or artifice on the part of the one seeking to enforce the contract.

24. REDLINING ISSUES
As a prank, a prospective tenant, reviewing the Word document of the agreement form, inserted a requirement that the landlord provide birthday cake on the weekend nearest the tenant's birthday. The landlord didn't notice the insertion. Tenant's additional clause takes the cake
And a court might not come to the rescue as happened in the Hand case. For example:
A Russian court reportedly enforced a "contract" created by a man who changed a bank's credit-card agreement, then (successfully) sued the bank when it didn't comply with the altered terms. See Nick Shchetko Russian Man Turns Tables on Bank, Changes Small Print in Credit Card Agreement, Then Sues ,Minyanville.com (Aug. 7, 2013).
In Cambridge North Point LLC v. Boston and Maine Corp., No. C.A. No VCS (Del. Ch. Ct. June 17, 2010), the court refused to declare that a $3.5 million payment obligation was unenforceable on grounds that it allegedly had been "quietly" inserted into settlement agreement.

25. REDLINING ISSUES WHAT ABOUT INSISTING ON A “REDLINE” REPRESENTATION?
Each party represents that it or its counsel has "redlined" or otherwise called attention to all changes that it made and sent to the other party in previously-sent drafts of the Agreement, including but not limited to drafts of any attachments, schedules, exhibits, addenda, etc.
Additional reading
See the extended discussion of redlining etiquette in an entry at contract-drafting guru Ken Adams's AdamsDrafting blog.
Business context: The potential for surreptitous changes

26. Rule #8 CURRENT: TRANSACTIONAL:
When permitted or required by court rule or otherwise, lawyers shall drafts 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.
TRANSACTIONAL:
Scenario: Buyer and Seller are in heated negotiations. Buyer tells counsel: “Deal is off! Pencils down!” Seller’s lawyer contacts Buyer’s counsel as to status.
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. Lawyers shall promptly return phone calls and other correspondence from other counsel and shall advise client.

27. Rule #9 CURRENT: TRANSACTIONAL:
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.
TRANSACTIONAL:
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.

28. Rule #10 CURRENT: TRANSACTIONAL:
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.
TRANSACTIONAL:
Lawyers should avoid quarrels over matters of form or style and will concentrate their energy and resources on matters of substance and content1.
1. See Canaday, Richard. “Golden Rules: Tips for Fostering Civility in Business Transactions.” Oregon State Bar Bulletin, May 2013

29. Rule #11 CURRENT: TRANSACTIONAL:
Lawyers shall avoid impermissible ex parte communications.
TRANSACTIONAL:

30. Rule #12 CURRENT: TRANSACTIONAL:
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.
TRANSACTIONAL:

31. Rule #13 CURRENT: TRANSACTIONAL:
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.
TRANSACTIONAL:
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 arbitrary deadlines1. Lawyers should avoid negotiating tactics that are intended solely to gain an unfair advantage or take unfair advantage of a superior bargaining position.
1. See State Bar of California. California Attorney Guidelines of Civility and Professionalism. Adopted July 20, 2007

32. Rule #14 CURRENT: TRANSACTIONAL:
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.
TRANSACTIONAL:
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.

33. Rule #15 CURRENT: TRANSACTIONAL:
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.
TRANSACTIONAL:
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.

34. Rule #16 CURRENT: TRANSACTIONAL:
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.
TRANSACTIONAL:
“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”1.
1. See State Bar of California. California Attorney Guidelines of Civility and Professionalism. April 18, 2007 draft, proposed long version.

35. Rule #17 CURRENT: TRANSACTIONAL:
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.
TRANSACTIONAL:
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 documents1. Lawyer 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 client2. Lawyers shall be mindful of value for the client and explore alternative methods of accomplishing the client's goals more simply and economically3.
1. See State Bar of California. California Attorney Guidelines of Civility and Professionalism. April 18, 2007 draft, proposed long version.
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. Adopted July 20, 2007

36. Rule #18 CURRENT: TRANSACTIONAL:
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.
TRANSACTIONAL:
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 misunderstandings in the future.

37. Rule #19 CURRENT: TRANSACTIONAL:
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.
TRANSACTIONAL:
In responding to document or information requests, 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.

38. Rule #20 CURRENT: TRANSACTIONAL:
Lawyers shall not authorize or encourage their clients or anyone under their direction or supervision to engage in conduct proscribed by these Standards.
TRANSACTIONAL:
Lawyers shall not authorize or encourage their clients or anyone under their direction or supervision to engage in conduct proscribed by these Standards.

39. Other 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”

40. Other Thoughts
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 voic 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.  

41. Other Thoughts
"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”

42. Can Zealous Advocacy…

43. …become unprofessional and unethical advocacy?

44. Duty of “Zeal in Advocacy”
“These principles include the lawyer’s obligation zealously to protect and pursue a client’s legitimate interests, within the bounds of the law, while maintaining a professional, courteous and civil attitude toward all persons involved in the legal system.” Model Rules of Professional Conduct: Preamble and Scope, sec. 9 (see also, Where Did the Zeal Go?, Lawrence J. Vilardo and Vincent E. Doyle, III, Litigation, 38, No. 1, Fall 2011).

45. While you're screaming bloody murder on a conference call or voic , the other side has pushed the "mute" button and is probably laughing at how out-of-control you are.
WHAT YOU IMAGINE
REALITY

46. DEEDS, NOT WORDS “We can be excellent without being arrogant,
Successful without being boastful,
Tenacious without being contentious,
Self-critical without being defensive.
[A]t the end of the race there is a prize called reputation and … Our reputation is based on deeds, not words.”
Curry, Judge Richard L., Lawyers of Conscience Enforce the Unenforceable. Illinois Bar Journal 75 (1986):