Professional
Responsibility
Some Late, Errant, Fugitive Thoughts About Lawyer Professionalism
Should we expect "professionalism" from fellow lawyers? And
if we expect it, what is it? [Questions suggested by Joe
G. Roady, What is Professionalism? And Do We Really Have the Right To
Expect it from Our Colleagues?Bulletin (Bar Association of Eric
County, June 1996)]
Joe Roady talkd about how he spent his first 22 years of practice with a Houston lawyer named Joyce Cox who taught him that "[t]he lawyer's duty was not just to his or her client, but to the institution itself. Indeed, the concept of duty was (and still should be) at the heart of a lawyer's life: the high duties owed to clients, to courts, to other lawyers, to the system of law. To Joyce, professionalism was not a mere ideal; it was a reality." We might say that a lawyer's ethics will depend greatly upon his or her sense of the magnitude of the enterprise that you've undertaken, the great respect you have the institutions associated with that enterprise and the personal sense of duty that you've taken on by way of being associated with law. The rules of professional conduct, which form our code of ethics, points explicitly to and articulates some aspects of this duty, but it seems rather obvious to me that Joyce Cox wasn't teaching Joe Roady how to read the Rules of Professional Conduct. To have the kind of character one needs to be a professional goes beyond the idea of following ethical rules.
Roady finds that the sense of professionalism based on duty and reverence of law has undergone considerable erosion over the years. Indeed, the erosion is sufficiently serious that commenting on it has become rather commonplace. And yet, there is, and should be, something painful for those of us associated with the legal profession to contemplate what has happened in the last several decades. This is the way Roady describes what he sees from his 33 years of practice:
I have witnessed the commercialization of the profession, which has served to lessen it in the eyes of many to a mere trade with greed, selfishness and crassness being the expected conduct, rather than the exception. Despite the efforts and protestations of the leaders of the Bar that the high standards of the profession are still intact, I have seen conduct which bore no resemblance to the high standards of professionalism which we claim still exist. I have seen a breakdown of civility and of respect to opposing parties, to opposing lawyers, and to the judiciary.
Here are some of the examples that Roady presents as anecdotal evidence of the conduct that he views as unprofessional:
- In a deposition, when I demanded that a witness produce a withheld
document, his lawyer refused to produce it and said, "All you're getting
from me is a punch in the mouth!"
- At the end of a deposition at which many of the deponent's documents
had been marked and discussed, the lawyer refused to allow the court
reporter to take the documents to copy and attach to the deposition,
and continued to refuse until required by a court order.
- After a lawyer agreed to set up out-of-town depositions, he failed
to do so, and failed to appear (although my client and I did appear),
after which (much later) he told me that if I ever accused him , he
would deny it, but that his actions were intentional, designed to cause
expense and aggravation to my client.
- A lawyer verbally abused a court reporter (and brought her to tears)
and tried to require her to continue a deposition after the other side
announced a recess to pursue a motion for protection.
- A lawyer proudly proclaimed that if you haven't had grievances filed
against you, you are not doing your job as a litigator.
- A lawyer, on the eve of a long-awaited trial, made an ex parte
contact with the judge and obtained a continuance.
- A lawyer agreed to stipulate undisputed facts to save time and expenses
and then disputed every fact, making the case greatly more expensive
for all parties.
- A lawyer consistently and intentionally misrepresented to the court the facts and holding of cases, designed to create confusion by attempted deception.
Roady finds that what's lacking today is civility and commonsense. And without a measure of both we are as Roady claims, "in trouble." The problem is not that professionalism ceases to exist, as Roady notes, and most lawyers know, it does exist and most of us have the good sense to appreciate it when we see a lawyer who embodies it. What troubles us most, is that the kind of professionalism Roady thinks should be guiding us is in short supply. There are just enough lawyers who either don't care what anyone thinks about their professionalism, or have gotten themselves channeled into thinking that success can be gained by running roughshod over others, devious practices, and giving fellow lawyers a hard time, that the satisfaction any lawyer can take in the practice of law is imperiled.
Jeffrey M. Vincent, in his article, "Aspirational Morality: The Ideals
of Professionalism," which appeared in a January/February 2003 issue
of the Utah State Bar Journal [on-line
text] begins his article by pointing us to Alexis de Tocqueville's
observation in Democracy in America that if there were an aristocracy
in America, that it is not of the rich, but the lawyers of the bench and
bar. [Alexis de Tocqueville, 1 Democracy in America
355 (Francis Bowe ed., 4th ed., 1864)(Henry Reeve trans.)] There
are undoubtedly still those in the practice of law who have some aristocratic
bearing, and we might wish for more than we have (knowing well as we do
that aristocratic bearing and demeanor is no guarantee of ethical practice).
I grew up on a farm in Western Kentucky and didn't know anyone who I would have described then or now as an aristocrat. We probably had some lawyers in Benton, the county seat of Marshall county, where I grew up, who might well have been local aristocrats, but I was to young to know these gentlemen, and my family having no need for the services of lawyers, we knew them only by name and reputation. To this day, I've traveled in circles that have kept me a fair distance from men and women who would be considered aristocrats. I'm more likely to read about the aristocracy and their world in the lawyer novels of Louis Auchincloss or Arthur R.G. Solmssen than I am to know anything about this world first hand. Whatever situation we may find the legal profession in these days, I don't expect anyone to place much hope in a reemergence of the legal profession as a revised American aristocracy. My students don't see themselves being trained for such a role, and thus, they, as I, must rely upon a different way of thinking about ourselves as lawyers if we are concerned about professionalism.
If you're in the least bit interested in the world of the lawyer as aristocrat, the most enjoyable way to introduce yourself to this world is in the writing of Louis Auchincloss. See e.g., The Great World and Timothy Colt (New York: McGraw Hill, 1965)(perhaps the best of Auchincloss's lawyer stories), or Diary of a Yuppie (New York: Houghton Mifflin, 1986)(a lesser literary effort but with more contemporary characters, reflecting a young lawyer's revolt against a more aristocratic senior partner). More recently, I've discovered the work of Arthur R.G. Solmssen, a Philadelphia lawyer/novelist, who has written three wonderful books, all now out-of-print, featuring Philadelphia lawyers and insight into what might be called the new aristocracy found in the modern, powerful law firm. The Solmssen novels ar: Rittenhouse Square (New York: Little, Brown & Company, 1968), Alexander's Feast (New York: Little Brown and Company, 1971); and The Comfort Letter (New York: Little Brown and Company, 1975)(which is as well-written as a Scott Turow novel, and with rather good character development, and better plotted than most legal thrillers; The Comfort Letter is an awfully good novel).
Stiffer reading than the Auchincloss and Solmssen novels, but a book that every lawyer should read and contemplate, is Anthony Kronman's The Lost Lawyer: Failing Ideals of the Legal Profession (Cambridge: Harvard University Press, 1995) (described by the Harvard University Press as a "stirring analysis" which "describes a spiritual crisis affecting the American legal profession" and "attributes it to the collapse of . . . the ideal of the lawyer-statesman: a set of values that prizes good judgment above technical competence and that encourages a public-spirited devotion to the law.") [an except from The Lost Lawyer describing the book] [review]
Peter R. Jarvis, in "Aspiring To Be a Lawyer-Mensch" suggests that we may not be any more likely to set out to be lawyer-statesmen than we are to consider ourselves aristocrats. Consequently, most of us find ourselves in a situation where we going to need to look closer to home for the models and images that guide and channel our aspirations as professionals. Since most of us don't set out to be statesmen, we may have to find alternative models and images. We have, of course, the wonder image of Atticus Finch, in Harper Lee's To Kill a Mockingbird,which prompted a fine essay by Tom Shaffer about the novel, Atticus Finch and lawyer ethics, and it seems also to have prompted his argument that we might revitalize the notion of the lawyer as gentleman.
[See Thomas L. Shaffer, The Moral Theology of Atticus Finch, 42 U. Pitts. L. Rev. 181 (1981) (one of the best essays ever written on what we might called Atticus Finch morality); Thomas Shaffer, The Return of the Gentleman to Professional Ethics, 10 Queen's U.L. Rev. 1 (1984) [excerpts from the Shaffer article]; materials prepared for a reading of To Kill a Mockingbird in my Practical Moral Philosophy for Lawyers seminar [Elkins materials on-line]; on the general notion that nothing good should remain untarnished by the hand of a lawyer, see Steven Lubet, Reconstructing Atticus Finch, 97 Mich. L. Rev. 1339 (1999); and with the idea that no canonical text, no text widely read and revered should not be subject to the legal academic's "I've got one better" proposition, see Rob Atkinson, Liberating Lawyers: Divergent Parallels in Intruder in the Dust and To Kill a Mockingbird, 49 Duke Law Journal 601 (1999)(suggesting we've been reading To Kill a Mockingbird when we should be reading Faulkner's Intruder in the Dust, a proposition that makes sense only if you have an affinity for convoluted prose, scene and plotting likely to give most readers a headache before it delivers up anything akin to inspiration)(if your going to read Faulkner, I'd recommend As I Lay Dying or Light in August, two of Faulkner's more accessible works)]
Scott Daniels, in "A Prayer for the Professions," a President's
Message for the Utah State Bar Journal (January/February, 2002)
[on-line
text] asks a question about a situation that bothers some lawyers,
the way we are represented in jokes:
Do you know why there are so many lawyer jokes? Because lawyers are easy pickings for those looking for a laugh at the expense of an arrogant, self-important creep. Let's face it: we have some bad apples in our barrel. Even Jesus disliked lawyers, and Jesus was an exceptionally tolerant fellow.
And who are these "arrogant, self-important creep[s]" who have left lawyers the subject of so many jokes that lawyer jokes are now a well-recognized definable joke genre? Daniels argues, perhaps unconvincingly, that the lawyers who make us the subject of jokes are lawyers at the "margins of the profession."
When I see a lawyer making a fool of himself (herself/itself) and an embarrassment of the legal profession, it's almost always the lawyer on the margins of the profession, widely known for ineptitude. It's usually these marginal ones who mention that they are lawyers as they complain to the waiter, or the dry cleaner, or the storekeeper, or act as if they are going to sue because the soup is cold or someone parked a car in front of their house. It's almost always the semi-competent who write the insulting letters; who bluster and threaten and accuse and attempt to intimidate.
Daniels goes on to suggest that we undoubtedly have some "arrogant butthead[s]" in the profession who are not likely to be reformed by required CLE hours, or by pointing out to them that they are giving the profession a bad name: "bluntly lecturing on proper behavior doesn't help . . . because they just don't get it. It seems to be congenital." Daniels, here, seems to be describing what might be called a personality type who is destined to make life miserable for her fellow lawyers:
There are a certain number of people on this planet who are full of themselves, thinking they are God's gift to humankind. Not all of these have the aptitude in math to get into premedicine. There are a certain number of people who love to bully and intimidate. Not all of them have the physical abilities required to succeed in the military, police academy, or as gym coaches in junior high. There are people who believe that every word they speak is full of wisdom and gospel truth, and that they speak for, to, or with God. The best of these went into the ministry; the worst are institutionalized; most of the rest became journalists. Still there are some left over who went to law school.
If we have a significant number of people who find their way to law school and go on to become lawyers:
consumed with the idea of their own self-importance,
then, the practice of law will be an everyday affair in which we find ourselves confronting and trying to deal with the arrogance, the disrespect, and the hardball tactics of our fellow lawyers, whose narcissistic interpretation of professionalism leaves it devoid of any real meaning.
