I had the recent honor to address the members of the Cumberland School of Law’s Law Review on the topic of professionalism. As I prepared my remarks, I was once again struck by the critical importance of ethical and professional behavior to the fundamentals of our profession. We are all aware of the wide range of events in recent years that have caused tremendous upheaval in the legal profession. Current economic realities have resulted in many layoffs and deferral of employment for younger lawyers in larger firms, and slow-down in legal employment opportunities generally. New lawyers, especially, have significant challenges ahead, but all of us are wise to revisit the inherent importance of professionalism to the practice of law.
Several weeks ago, my Cumberland Law School Class celebrated its 35th reunion. When we began practice in 1977, there were no computers, no cell phones, limited word processing functionality and a total absence of electronic filing capabilities. Technological advances were limited and slow to develop. We used law clerks and runners to file documents and to deliver documents from attorney to attorney. The turn-around time to review, comment, and return documents was often days and sometimes a week. Word processing was limited to IBM typewriters that contained memory sufficient for salutations and greetings, but not much more.
The first word processor in my office was a Xerox 850 which was roughly the size of a telephone booth. It had memory enough for about 1,000 characters which limited the documents that could be stored in the processor. While it offered the opportunity to revise documents without having to retype each and every word, its memory capability was extremely limited.
Big news came when facsimile (fax) machines were introduced and we could send documents or pleadings to opposing counsel in minutes. Faxed documents were printed on filmy wax paper that often smudged and easily deteriorated. They helped to speed the process, but originals still had to be delivered by hand. When we needed to communicate quickly with other attorneys, we actually used land-line telephones! We conversed with one another, which developed relationships and provided collegiality.
Today we use cell phones and communicate primarily through email. Documents are printed in their original form, revised, and returned within a matter of minutes. Files are increasingly kept on computer hard drives without a “hard copy” in the file. We are confronted often with discovery requests through electronic means, and must adhere to new requirements for storage of discoverable material and review of discovery documents once produced. In order to practice effectively today, we must understand and use developments in technology. Without question, the profession that new lawyers enter today is vastly different from the profession that my classmates and I experienced 35 years ago.
Despite these sea-changes, all of us, new and not-so-new, are well advised to remember the definition of a profession. One of my favorites is that espoused by noted scholar and educator Dean Roscoe Pound: “the term refers to a group pursuing a learned art as a common calling in the spirit of public service. No less a public service because it may incidentally be a means of livelihood. Pursuit of the learned art in the spirit of public service is the primary purpose.”
Does Dean Pound’s definition describe the practice today? Do we practice law in the spirit of public service or do we practice solely as a means to earn a living?
When I look at the nature of our profession today, I see advertising in every medium and in various forms. Some are classier than others, but all are designed to increase the attorney’s exposure to the general public and to generate new business. As I began to practice, clients were referred by other lawyers, other clients and/or personal contacts within the community. Advertising was not only frowned upon, but limited in nature and not a common practice in Birmingham, or even across the State. Today, we often see lawyer advertising, and in some cases it projects an image in the public mind that is less than positive.
A 2008 Gallup Poll found that only 18% of those surveyed would rate the honesty and ethical standards of lawyers as high or very high. Lawyers were rated lower than medical doctors (64%), bankers (23%), and my favorite, building contractors (22%). What does that suggest about the collective image of the profession? The most disconcerting part of the 2008 Poll was that 57% of those responding believed that most lawyers are more concerned with their own self-promotion than their client’s best interest. The image of lawyers may have deteriorated to the point where Dean Pound’s definition of a professional may not apply to a vast number of attorneys practicing across the country.
It is incumbent on all of us to remember that each of us influences not only the public image of lawyers, but also the opinion that we have about each other and about our profession. The stress of producing billable hours and generating revenue often results in having to make choices between doing what is right and correct versus what is expedient and economical. New lawyers, particularly, face
tremendous challenges as they begin the practice of law. When a new lawyer hangs out a “shingle,” for example, is it ethical to bill a client for the time required to acquire the practical knowledge necessary to handle a particular matter? Should a client pay for the “learning process?” What about errors made in the representation of a client? Filing a complaint in the wrong court or preparing a document incorrectly? Are these costs that a client should bear? The manner in which these issues are handled bear directly on the concept of professionalism and relate to the public’s view of our profession.
The tenets of professionalism are a recurring topic in Bar Association activities, often limited to CLE and legal ethics trainings. Participation in pro bono assistance by lawyers is essential to the “calling” of the law, and is intrinsic to the public benefit aspect of Dean Pound’s definition of a profession. But perhaps more important to the concept of professionalism are the very basics of our day to day practice, which greatly impact our relationships with clients, each other, and the image of our profession as a whole. In my view, the basics can never be overstated, for new and seasoned lawyers alike. We should treat each other with civility and in the manner in which we would like to be treated. If we feel we have been dealt with unfairly, we should have a polite conversation with the “offending” party. We should be on time for appointments, especially in court! Everybody else’s time is as valuable as our own.
We should practice courtesy and civility in all professional dealings regardless of ill feelings that clients may have toward each other. Learn to disagree without being disagreeable. Effective representation does not necessarily require antagonistic or acrimonious behavior. Vulgar language and disparaging remarks towards other counsel, parties, or witnesses does not enhance our respective goals. We must cooperate with opposing counsel as much as possible without damaging the interests of our clients, and we should use compromise as a valuable tool. We must be reasonable in considering requests for extensions of time or waivers of procedural formalities, and employ flexibility on scheduling matters. My experience is that Judges, in particular, dislike discovery conflicts. Though discovery processes are essential to uncovering facts necessary to advance a client’s interest, they can also be misused, which increases costs, delay, and client frustration. We must remember that each of our actions contributes to the collective public view of us as lawyers, our profession, and our judicial system.
For many of us, these remarks may seem elementary, but for all of us, they are essential ingredients in the professional practice of law. If we make promises and agreements with other attorneys, we must keep them. When we enter into an attorney-client relationship, we must recognize and honor the sanctity of that relationship. The services we perform and the arrangements we make with clients must always be in writing. And we must always treat Judges with respect, regardless of whether we agree with them or not. The office deserves respect regardless of whether we believe the individual occupying it does.
For younger lawyers, please ask for help and guidance whenever necessary. Our Bar has an outstanding mentoring program, and many firms do as well. If you are overwhelmed, help is available. Participate in our State and Local bar associations and take advantage of programs and services offered. Stress, depression, and substance abuse issues are well documented in our profession. Lawyer Assistance programs exist to help lawyers deal with these problems. If you are new to the profession, remember that you have resources to help you be a better advocate, lawyer, and individual.
There are not many professions where one can make a difference in society and also earn a living. Lawyering is integral to the structure of our democratic way of life and instrumental in all aspects of American government. We can make a collective difference, but only if we use integrity and honesty as the basic templates for our day to day practices. If we embody the values of professionalism in our collective practices, Dean Pound’s definition of our profession may once again ring true.