Could Everything Be Alright Without Me Knowing? The State of Professionalism Among Attorneys

By Joe Murphey

 

Ah, “professionalism.” You know, it’s that thing you always get confused with “ethics” when you’re scrambling to get your continuing legal education requirements at the end of the year. You seem to recall that one is more important than the other, but which one? Well, it’s ethics. Yet I write here today on its lessor cousin, professionalism.

A Study in Contrasts: Ethics vs. Professionalism

My friend and colleague David Lefkowitz is an attorney who holds attorneys accountable for their negligence. He is also an adjunct professor at University of Georgia School of Law who teaches legal-malpractice law and a prolific and sought-out speaker on the topic of legal ethics. Conversely, I have become a somewhat sought-out speaker on the topic of professionalism. There have been many CLEs where I’m speaking on professionalism, and David is speaking on ethics. Usually, I’m trundling in to do the professionalism piece just as David is leaving, having just spoken on ethics.

 

(Ethics is usually earlier on a CLE agenda; professionalism is usually at the end—when the audience has either departed or is in a food coma from lunch.) I don’t begrudge David his status of speaking on a topic more important than mine. His talks on ethics are informative, entertaining and, frankly, unsettling. It’s amazing how counterintuitive many ethics rules are. David uses scenarios to make his points. He asks for a show of hands for “how many of you would react to an ethical challenge by doing ‘A’? How many by doing ‘B?’. Almost everyone in the audience picks the course of action that is not the correct ethical choice. Scary stuff indeed. Bottom line: An attorney who breaches the rules of ethics can be sanctioned and even disbarred. It’s important stuff and is set forth in great detail in the Georgia Rules of Professional Conduct, which despite its title, refers to legal ethics, and the consequences of violating them.

 

The Aspiration of Attorney Professionalism

So, from where does the notion of attorney professionalism arise? The aspirational concept of attorney professionalism, in Georgia, is defined by these two documents: “The Lawyer’s Creed” and “The Aspirational Statement on Professionalism.” The only thing that professionalism and ethics have in common for Georgia attorneys has been that lawyers are required to receive an hour of instruction on each as part of their annual continuing legal education. (Note: Almost all states require ethics CLEs for attorneys. Some, like Georgia require both ethics and professionalism. In California they require an hour of “civility” training, which I think means professionalism.)

 

In practice and enforcement, ethics and professionalism are as different as chalk and cheese. The shorthand I use is this: If you’re unethical, you can be disbarred; If you’re unprofessional, you may be disliked. Yes, we have our “Lawyer’s Creed” and our “Aspirational Statement,” and we are encouraged to do our best to follow these guidelines, but it’s all aspirational. There are no penalties for nonobservance. Here’s what three giants of our state judiciary have had to say about professionalism versus ethics:

• “Ethics is a minimum standard which is required of all lawyers while professionalism is a higher standard expected of all lawyers.” (Harold Clarke, former chief justice of the Georgia Supreme Court)
• “We should expect more of lawyers than mere compliance with legal and ethical requirements.” (Robert Benham, former chief justice of the Georgia Supreme Court)
• “I have concluded that professionalism, in a legal sense, is to a great extent practicing the golden rule. It is not—do my opponent in before my opponent does me in—but rather, it is do unto your fellow attorneys, the judges and society as you would have them do unto you.” (Norman Fletcher, former chief justice of the Georgia Supreme Court)

 

Is Professionalism in Decline?

So, if no one gets disbarred for being unprofessional, why be professional? I don’t ask this question in a vacuum. There is a general perception that civility and professional conduct are at historical lows. Taking the high road, giving the benefit of the doubt, acting with civility—these are qualities viewed as weakness in many quarters. Many lawyers I talk to say their clients have one objective—to win. Clients don’t directly benefit from courtesies that may make our legal combat more palatable from a lawyer’s perspective.

 

During many CLE talks about professionalism, I’ve received unequivocal feedback: The vast majority of lawyers think professionalism is, if not dead, on life support. At seminars, I ask lawyers who have been practicing for 20 years or more to raise their hands if they believe there has been an erosion of professionalism over the past two decades. All hands go up. Not most—all hands go up. I ask them to keep their hands up if their personal level of professionalism has eroded over the past 20 years. All hands go down. So, apparently there IS a problem, but no one will admit to being part of it. Or, as many longtime lawyers tell me, “It’s the new generation of lawyers that has made things worse.”

 

It Was So Much Better Back in My Day!

If there is any concept that has remained unchanged throughout the ages, it’s the notion held by the older generation that “kids today” lack the moral fiber, sense of honor and overall substance of their forebears. Here’s proof to that point:

• “Probably there is no other period in history in which young people have given such emphatic utterance to a tendency to reject that which is old and wish for that which is new.” (“Young People Drinking More,” Portsmith Evening News, 1936)
• “We defy anyone … to deny that there is, as never before, an attitude of the part of young folk which is best described as grossly thoughtless, rude and utterly selfish.” (“The Conduct of Young People,” Hull Daily Mail, 1925)
• “A fearful multitude of savages … ride astride horses, drink, swear, fight, smoke, whistle and care for nobody. The morals of children are ten-fold worse than formerly.” (Anthony Ashley Cooper, 7th Earl of Shaftesbury, Speech to the House of Commons, 1843)
• “I find by sad experience how the towns and streets are filled with lewd wicked children, and many children as they have played about the streets have been heard to curse and swear and call one another names.” (A Little Book for Children and Youth, Robert Russell, 1695)
• “Modern fashions seem to keep on growing more and more debased. The ordinary spoken language has also steadily coarsened.” (Essays in Idleness, Yoshida Kenko, 1330)
• “Our sires’ age was worse than our grandsires’. We, their sons, are more worthless than they; so in our turn we shall give the world a progeny yet more corrupt.” (Book III of Odes, Horace, First century BC)

So, literally for centuries, there has been a sense that morals, ethics, civility, and I daresay professionalism, have been in decline. I certainly feel the level of honor and professional courtesy among lawyers when I began practicing 35 years ago has diminished. But has it really? Or am I like the authors from the pages of history above who just feel that way. As Atlanta-based singer-songwriter Shawn Mullins says in the ballad “All in My Head”, “Could everything be alright [sic] without me knowing?” Moreover, even assuming there’s been a decline in professionalism, what can any individual attorney do to stem the tide? Or, for that matter, should attorneys even concern themselves about being professional if the opposition is cutting professional corners to gain a competitive advantage?

 

A Mediator’s Perspective on Professionalism—and Why You Should Aspire to It

I’ve tried a lot of cases (nearly 200) but none recently. For nearly 20 years now my contact with attorneys has been as a mediator—in the conference room, not the courtroom. You might conclude (fairly) that I’m out of touch with the demands on professionalism faced by attorneys in the pitch-battle, rough-and-tumble world of litigation and trials. But lawyers at mediation have a lot to say about the professionalism of their peers, and I’m a good listener. And here’s what I have concluded.

 

A reputation for unprofessional conduct impairs an attorney’s ability to negotiate at mediation. Conversely, attorneys who are respected as being professional in their dealings always gets the benefit of the doubt, and their clients the better end of the bargain. I find this especially true when there are “unknowns” at mediation, which is often the case in pre-suit or early-stage mediations. There are attorneys who will represent to their colleagues, “I can assure you that if you conduct discovery, you will find X to be true” who are taken at their word. Others are not. And that comes down simply to a reputation for being honest, plain-dealing, and, in short—honorable. Add to that the other element of professionalism—civility and a tone of respect for others, and you have the recipe for the best negotiated outcomes at mediation. With many more cases ending by settlement than trial, getting a good, negotiated outcome is essential to being an effective advocate. Lawyers who can’t be trusted, and who can’t advocate without being disrespectful in their dealings, are at a disadvantage.

 

It would be pollyannaish to imply that rude lawyers who play fast-and-loose with the notions of professionalism don’t find success in negotiations, as they often do in court. Sometimes bullies sadly get their way. But I’m reminded of a warning a senior partner gave me many years ago when I was contemplating taking a shortcut on the pathway of professionalism: “Just remember: you gotta [sic] work in this town.” I did remember. I think I have almost always taken the high road of professionalism—and I have been blessed with plenty of work. I believe that’s no coincidence.