Why Worry About Professionalism Anyway

WHY WORRY ABOUT PROFESSIONALISM ANYWAY?

WHAT CAN WE DO ABOUT IT?

by Charles E. McCallum

Remarks prepared for State Bar of Wisconsin

Seminar on Professionalism – February 14, 2007

WHY WORRY ABOUT PROFESSIONALISM ANYWAY?

We should worry about professionalism primarily because the essential attributes of professionalism define an important set of obligations that are correlative to the privileges we enjoy. If we fail in those obligations then we lose, our clients lose, and society loses. Those professional attributes are, for most of us, a good part of the reason we entered the practice of law.They are the elements that give us the greatest satisfaction with our professional lives. I have suggested that there are seven key attributes of our profession:

• Serving clients, helping others, is at the core of our professional being. Good lawyers daily subordinate their personal lives to the needs of their clients, not simply to log on more billable timebut for the satisfaction of being needed, being wanted, and being appreciated. I have suggested that the motto of the legal profession might well be the Latin word servimus, which means “We serve.” The best lawyers are compulsive about client service. They can’t help themselves. Perhaps you have heard the guillotine joke. Three prisoners are condemned to die on the guillotine. In that country the victim is placed on the guillotine looking upwards, but is offered a blindfold. The first, a priest, declines the blindfold, There is a drumroll, the rope is cut, the blade descends and then, at the last minute, hangs up before reaching the prisoner’s neck. The crowd roars, because in this country there is a tradition that in such a case the prisoner goes free. The second prisoner, a wealthy tradesman is brought forward. He also declines the blindfold. Again there is a drumroll, the blade descends, and again hangs up. The crowd roars again and the prisoner goes free. The third prisoner, a lawyer, is brought forward. He is put into place, and again declines the blindfold. Once more there is a drumroll, but before the rope can be cut the lawyer calls out “Wait,” and, pointing up at the blade, says “I think I see what’s wrong up there.” Like that lawyer, most of us can’t resist trying to fix things.
• Serving the public interest is also an essential part of our professional lives. It is because of our duties to the public that we may not knowingly assist a client to commit a crime or a fraud, nor knowingly mislead a tribunal or another party in the course of a representation. In addition to these constraints, we are, as declared in the Model Rules of Professional Conduct, “public citizens,” with a duty to seek to improve the law, to improve the profession, and to improve access to justice. The satisfaction we derive in this aspect of our professional lives is that of the builder. The things we make are intangible – organizational structures, agreements, legal precedents, settlements. But they are important things and we can take pride and satisfaction in them as our handiwork.
• Good character is important to us. We value honesty and integrity and want them to be our reputation. We want to be trusted, and we want to be able to trust our peers. We want our word to be our bond. The vast majority of lawyers are, in my experience, straight shooters who want to do what’s right, and enjoy working with others who do so.
• Excellence is, for most of us, a lifelong goal. The ranks of lawyers are filled with overachievers and perfectionists. We take pride in the quality of our work. We have a passion for excellence.
• Context is also important to us. We aspire to be more than simple technicians. We want our work to be meaningful, and in order for it to be so, and for us to see it as such, we want to understand the overall context in which our services are rendered. By understanding that context we can serve the client better. In addition, if we are to adhere to the professional standards that support the rendition of forthright advice and the rejection of clearly improper client conduct we must see the big picture. This was recognized in a Report recently issued by the Task Force on the Lawyer’s Role in Corporate Governance of the Association of the Bar of the City of New York, which said:

“Outside counsel . . . should endeavor to be aware of the context in which and the purpose for which her services are being requested and used.”

• Specialized knowledge and skills are the tools of our profession. Lawyering is an exercise of the intellect and interpersonal skills. We are by nature problem-solvers, and we enjoy not just the solution but the exercise of reaching that solution. We appreciate and admire good writing, sound reasoning, skillful advocacy, and adroitness at negotiations.
• Independence and self-regulation of our profession expresses a final characteristic of lawyers, independence. We have chosen our profession in part because it allows us to, indeed mandates that we should, exercise independent professional judgment on behalf of our clients.

Note that I have not suggested that we re-commit ourselves to professionalism in order to respond to, to “do something about,” lawyer jokes and cartoons. Why not? I have three reasons:

• First, to try to stamp out lawyer jokes and cartoons is a fool’s errand. Those jokes and cartoons, and the stereotypes they perpetuate, are a part of our culture, and cultural stereotypes are persistent.
• Second, lawyer jokes and cartoons may not be as serious a problem as they might appear. As Professor Galanter has pointed out, the American public is ambivalent about the law and lawyers. They cherish their legal rights, and they expect legal redress for grievances. When embroiled in legal matters, they want their lawyers to win for them . . . to be their champions. But they don’t like paying for the enforcement of their legal rights. And they often don’t see why the justice of their cause is not self-evident. Most of us have had the experience of the client who believes that if he could only talk to his opponent’s lawyer he could persuade him that the opponent was at fault. And when that opposing lawyer not only pursues the case but in addition embarrasses and angers our client in the course of cross-examination, the seeds of future lawyer jokes are planted. Notwithstanding this ambivalence, however, we rarely meet anyone who is embarrassed to say that his son or daughter is a lawyer.
• Furthermore, even if lawyer jokes and cartoons were a serious problem, they cannot be countered head-on. What are we going to say? “We areso honest”? It’s a bit like answering the question, “When did you stop beating your wife?” If we did try to increase public understanding of the role of the lawyers, we would face an impossible mission since television can draw a much larger audience for sitcoms that portray the practice as made up of small firms with eccentric lawyers (albeit with colorful love lives), who have an almost exclusively criminal law or trial practice, and who skate dangerously close to moral dividing lines in every episode.

WHAT PITFALLS SHOULD WE AVOID?

Misplace priorities

I tell my children that money is a good measure of a man’s wealth, but a poor measure of his worth. To a considerable degree what has gone wrong in the profession of law arises out of misplaced priorities, with the desire for moneydistorting priorities and causinglawyers to lose sight of their duties . . . to the client, to the public interest, to the law, to the administration of justice.

I don’t mean in saying this to imply that there is anything wrong in making a good living, indeed, in making a lot of money, in the practice of law. But it cannot be our primary focus. As David Maister, a keen observer of the practice, has said, “Being a professional is neither about money nor about professional fulfillment. Both of these are consequences of an unqualified dedication to excellence in serving clients and their needs.” Maister likes to ask lawyers why they do what they do. If one of the answers is not “I like helping people,” he says, then he knows he is talking to a professional in trouble.

The Report of the New York City Bar Task Force points out a darker side to misplaced priorities:

“Another change in the profession . . . has been its evolution toward a more competitive, bottom line orientation, with client relationships often in play and critical to the compensation of partners. This environment creates pressures on law firms and lawyers to acquiesce in questionable client conduct rather than place the client relationship at risk by pressing unwelcome advice.”

It is a matter of emphasis. Law firm consultants, and some law firm managers, have been facilitators of the misplacement of emphasis.

Loss of moral compass

There is a moral dimension to the practice of law. This is recognized when the Model Rules of Professional Conductsay that lawyers are guided by “personal conscience” and must exercise “sensitive professional and moral judgment.”

Looking at nine recent corporate scandals, including Enron and WorldCom, the New York City Bar Task Force concluded that changes, largely driven by pursuit of money, in the culture of the law practice had resulted in some lawyers bending to management pressures and failing “to ask the questions or take the actions that might have prevented or mitigated corporate misconduct.”

The pursuit of money is not the only thing that causes atrophy of our moral compass. A desire for recognition andexcessive pride verging on hubris, can also tempt a lawyer to detach himself from his moral grounding. Some lawyers areopenly cynical about lofty motives and embrace the notion that to do the right thing may not be smart. But despite the cartoonists, most of use do believe that honesty is the best policy. Why should we be ashamed to admit that belief?

Loss of passion

It is out of vogue these days to have, and to be seen to have, passion for one’s work. The popular culture has swung in the direction of a more self-centered self-indulgence. But the fact is that we are to a significant extent defined by what we do during the greater part of our waking hours. If we are lucky, we enjoy it. And if we enjoy it, we should be proud to say so.

WHAT, THEN, SHOULD WE DO?

David Maister observes that professionalism is “predominantly an attitude, not a set of competencies. A real professional is a technician who cares.” True professionalism, he says, implies “a pride in work, a commitment to quality, a dedication to the interests of the client, and a sincere desire to help.”

The first thing we can do is individually to re-commit to the ideals of our profession. And we need to talk about those ideals, with pride. In addition, I suggest the following:

• Enjoy your clients. You got into this field because you like people. Indulge yourself in making friends of your clients.
• Become a volunteer. Any number of community organizations would benefit from your services. Pick a place to volunteer that interests you. Perhaps it is your church. Or a school board. Or an arts group. Or an orphanage. Or an animal shelter. I once counseled a young lawyer who said, “You know, I don’t really like symphony music or art museums. How can I be a volunteer?” I asked him what he did like, and he said that he liked to fish and hunt. I suggested that the local chapter of Ducks Unlimited would likely welcome a young lawyer willing to take on the job of, say, revising their bylaws.
• Get active in the bar. Your local bar, the state bar, the ABA. You can over a lifetime do all three. Active involvement in the work of the organized bar gives an unparalleled opportunity to meet and get to know other fine professionals. It will enrich your life. You will be able to engage collaboratively in the improvement of the law. You will make new friends.

CONCLUDING REMARKS

The goals defined by the seven professional attributes I have discussed are lofty ones. It is the style these days to deride lofty goals. But no one ever attained greatness by aiming low. Although pomposity deserves to be punctured, these noble sentiments are not pompous.

If we can reground ourselves in the profession, and become convinced that our profession has worthy goals and aspirations, we will feel better about ourselves and what we do in a world in which lawyer jokes and cartoons abound and more trenchant hostility evidences itself from time to time.

I have practiced law for almost 43 years. Every year I have been in the practice, including this year, I have been able to say, with conviction, that I have never enjoyed the practice of law more than I do now. When I say this, some affect surprise. But why should it be surprising? Every year I know a little more, I am (I hope) a little wiser, I have had a few more experiences, and I am therefore more self-confident. And every year I meet new and interesting clients and lawyers.

I have had lawyers tell me that they intend to discourage their children from pursuing a career in the law. I doubt that many actually do so, but I can’t think why any would. It is a noble profession, and if we all work at it, we can keep it that way. I am proud to be a part of it.

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