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EDITOR'S NOTE: The following is the second of a two-part article examining the professionalism movement, and current attitudes and efforts directed towards improvement of legal
professionalism.
In Part I of this article, I briefly discussed some basic underpinnings of the current professionalism movement. This continuation is intended to provide more discussion of the concept of
professionalism, some theories on the commonly perceived decline in lawyers' professionalism, and a general outline of efforts and proposals to rectify this decline.
I. The Concept of Professionalism
As suggested in Part I, the volume of scholarship on the subject of lawyers' professionalism shows that it is a topic of substantial interest
among academics, jurists, and the practicing bar, as well as the community at large. In spite of the attention devoted to the subject, however, professionalism has no uniformly accepted
definition. The sociologist Steven Brint defines professionals as people who apply "a relatively complex body of knowledge . . . [and engage in] activities requiring advanced
training in a field of learning and non-routine mental operations of the job."1 While Brint's definition is suitable as a generic description of professionals, it does not describe the unique traits or ideals commonly applied by the professionalism movement to the legal profession.
Besides a knowledge of and ability to apply principles of the law, the general conception of legal professionalism includes loftier ideals - certain shared moral values - that imply a duty
to act in the public good and with the purpose of obtaining justice. Dean Roscoe Pound described the profession as "a group . . . pursuing a learned art in the spirit of public
service."2
Some commentators have endeavored to create more specific descriptions, with varying success. For example, the American Bar Association's Professionalism Committee adopts Dean Pound's
phrase "in the spirit of public service," but then renders the definition circular when it defines "public service" as "zealously advocating [the client's]
interests in a professional manner . . . ."3
Despite the definitional challenges, professionalism is generally understood to include civility, both among lawyers and between the bench and bar, competence, integrity, independence,
respect for the rule of law, and participation in community service. Certainly, the concept of professionalism encompasses more than mere adherence to the minimal standards of ethical
conduct. As one commentator has stated:
The term encompasses much more [than the minimum ethical standard], including the ideals, traditions, and tenets associated historically with the practice of law. It means . . . competence
in serving the client; character in highly principled conduct of professional and civic duty; commitment in service of the client and the public good. It means understanding and honoring
the rule of law and embracing principles of moral responsibility.4
Because the conception of professionalism inherently entails personal moral characteristics, it is difficult to measure empirically. For the same reason, discussion of the topic can easily
devolve into pious platitudes that leave "ordinary life far behind for the hazy aspirational world."5
However, even the casual observer is aware that reports of uncivil behavior by lawyers, both in and out of the courtroom, are real and, unfortunately, not uncommon. In addition to the
anecdotal evidence, public opinion surveys conducted by the American Bar Association and others indicate that the public has a negative opinion regarding lawyers' ethics generally, and
that such public opinion is mainly worsening.6 The Conference of Chief Justices has observed that "there is the perception, and frequently the reality that some members of the bar do not consistently adhere to principles of professionalism and thereby sometimes impede the effective administration of justice."7
II. Causes of Declining Professionalism
As with any shift in a community's culture, there is no single reason for the decline in professionalism. However, at least three factors
are most often cited: (i) the competitive demands of increasing commercialism; (ii) reflection of corresponding movements in general societal ethics and culture; and (iii) the current
structure and organization of the legal profession.
Law as a Business. Perhaps the factor most frequently cited as a cause in the decline of professionalism is "the task of making money."8 Nearly two decades ago, Chief Justice Burger warned that commercialism had put the legal profession in crisis.9 The increased focus on profits, it is argued, leads practitioners to "surrender professional independence" and "employ unprincipled tactics to achieve clients' ends."10
The recent past has seen more law schools graduating more lawyers than ever before. The challenge to professionalism arising from the increased competition for quality clients, combined
with downward pressure on billing rates resulting from a generous supply of legal services, is not difficult to understand. But neither is such challenge new. For example, at the turn of
the last century, one observer stated that "[t]he evil . . . is not so much a professional as an American fault. It has its source in our inordinate love for the almighty
dollar."11
So long as the legal profession is a means for livelihood, commercialism will exist. The challenge to the professionalism movement is to seek ways to temper the financial realities with a
commitment to pursue the common good.
Changing Social Norms.
Lawyers and judges are members of the communities in which they work and live and as such are unavoidably influenced by the community's morals and values. It seems intuitive that a lawyer's professional activities will be informed by her own morals, which in turn will be defined, at least in part, by generally accepted moral principles.
Certainly, social mores have changed in recent decades. Sociologists and psychologists have observed that the convenience of modern life has corresponded with an expectation of instant
gratification. Unabashed partisanship and argumentative dialogue have become fodder for popular media programs reliant on public conflict, many of which also portray excessively
aggressive styles of lawyering. Cynicism and moral relativism have taken hold. Some observers argue that these new social norms, among others, have led to a focus on the quick win instead
of a reasoned approach to conflict resolution, a popularization of the "bulldog" lawyer, and other ethically deteriorative practices.
This line of thinking has been the subject matter of certain sociologists who posit that professions are defined merely by the social functions that they serve, and as such are reflective
of prevailing moral principles of the community at large. This kind of social function analysis is employed by sociologists primarily as a descriptive tool - the observation is made that
lawyers' social function has shifted from advisor to functionary, and as a result the governing moral principle of the legal profession has shifted from public service to
"expertness" or specialization. Whether such a shift is desirable as a normative proposition is a matter of strenuous discussion in the professionalism movement.
Structural Challenges.
There are other issues that are also suggested as challenges to lawyers' professionalism. These include the increasing size of law firms, and consequently, the absence of senior lawyer mentoring and role-modeling, the growing emphasis on advertising (which is closely related to the market competition issues described above), and institutional incentives toward complexity and aggressive application of the procedural rules.
III. Proposed Solutions
As stated in Part I of this article, there is no consensus of opinion on how to improve professionalism. An early attempt to propose practical steps for
the recent professionalism movement was undertaken in 1986 by the American Bar Association Commission on Professionalism (the "Commission").12 Among other things, the Commission suggested an increase in law school ethics education and an infusion of ethics into traditional coursework, mandatory continuing legal education, reliable discipline for unprofessional behavior, and emphasis on the role of lawyers as officers of the court.13
Numerous initiatives have been launched by law schools, state and local bar associations, and others in an effort to address the professionalism issue. In an apparent effort to organize
the disparate initiatives, in 1999 the Conference of Chief Justices published the National Conference on Public Trust and Confidence in the Justice System, National Action Plan: A
Guide for State and National Organizations14 (hereafter, the "National Action Plan"). The following is a description of some of the primary recommendations
included in the National Action Plan.
Coordination. Recognizing the diverse constituency of the legal profession, most proposals to rectify the decline in professionalism begin with a prescription of coordination.15 Practicing lawyers are engaged in business, government, public interest organizations, and of course in traditional roles on the bench, at law firms, and in academe. Such diversity can make coordination difficult.
The National Action Plan "calls upon the supreme courts [in each state] to 'take a leadership role in evaluating the contemporary needs of the legal community with respect to lawyer professionalism and coordinating the activities of the bench, the bar, and the law schools in meeting those needs.'"16 In response, the highest courts in many states-including the Utah Supreme Court - have established professionalism or civility committees for such purpose.
Improving Lawyer Competence. The National Action Plan's recommendations regarding lawyer competence include several distinct aspects. First, each state is encouraged to develop and implement comprehensive continuing legal education (CLE) courses, including substantive programs on professionalism and competence. Many bar associations already offer a broad range of CLE opportunities. In addition to the ordinary CLE requirements, the National Action Plan advocates requirements that all lawyers, but particularly new lawyers, take mandatory courses on professionalism, and that ethics and professionalism components be integrated in all CLE coursework. Naturally, the effectiveness of professionalism CLE will depend in large part on the receptiveness of the individual participant.
Second, the National Action Plan recommends the establishment of methods, such as an "ethics hotline," to provide lawyers with assistance in compliance with ethical and professional codes. Related suggestions include the publication of advisory opinions, either on the Internet or in printed, annotated volumes.
Other recommendations concerning lawyer competence include the establishment of mentoring programs for new lawyers to counteract the increasing impersonality of the profession. In fact,
programs addressing this need have been created independently of the coordinated professionalism movement. One successful example is the American Inns of Court, which was created in 1980
with the mission "to increase the excellence, professionalism, civility and awareness of judges, lawyers, law professors and students."17
Improved Bar Admission Practices. The National Action Plan suggests that the bar admission process should be reviewed to ensure that it reflects a focus on fundamental
competence and good character among new lawyers. Commentators on this topic have noted the need for preparatory steps at the law school level, and have encouraged the development of law
school courses specifically dealing with professionalism issues. In addition, recognizing that law school professors are often the first role-model of lawyering for inceptive lawyers,
proponents of professionalism have also urged faculty to take a keener interest in the issues of professionalism.
Other Recommendations. Included in the National Action Plan's other recommendations are (i) prompt handling of disciplinary complaints, in accordance with meaningful, understandable rules and guidelines; (ii) public involvement and accountability in the disciplinary processes, including appointment of laypersons to hearing panels and boards; (iii) the implementation of public outreach programs, including the creation of public education materials and more active involvement with the legislative and executive branches of the government; and (iv) a review of court processes, procedural rules, and alternative methods of dispute resolution.
IV. Conclusion
Admittedly, professionalism is philosophical in nature - its subject matter is a loosely defined ethos of moral ideals and behavior. Its scope and application, and
even its validity, are subjects of much discussion and debate. Moreover, the decline in professionalism has multiple causes, some of which are certainly beyond the control of the
institutions tasked with maintenance of the legal profession.
The fully engaged member of the bench or bar, occupied with practical affairs, may be inclined to dismiss professionalism as a reflective and theoretical endeavor for academics and law
reviews. To be sure, it is unlikely that any of the incremental efforts toward improved professionalism described above will have an immediate or readily discernable impact on the
ordinary practice of law. However, the collective effect of such efforts should likely have a long-term positive effect, even if indirect, on lawyers' civility, competence and integrity.
After all, as the philosopher Simon Blackburn observed: "For human beings, there is no living without standards of living."18 By extension, for lawyers and judges, there could be no fulfillment in the practice or administration of the law without standards for such fulfillment. The professionalism movement seeks to solidify such standards.
Footnotes
1 Stephen Brint, In an Age of Experts 3 (1994).
2 Roscoe Pound, The Lawyer from Antiquity to Modern Times 5 (1953).
3 A.B.A. Section on Legal Educ. and Admission to the Bar, Teaching and Learning Professionalism 6 (1996) (emphasis added).
4 Wm. Reece Smith, Jr., Teaching and Learning Professionalism, 32 Wake Forest L. Rev. 613, 615 (1997).
5 Robert W. Gordon, The Independence of Lawyers, 68 B.U. L. REV. 1, 13 (1988). See also Smith, supra note 4, at 614-615.
6 See Russell G. Pearce, The Professional Paradigm Shift:
Why Discarding Professional Ideology Will Improve the Conduct and Reputation of the Bar, 70 N.Y.U. L. Rev. 1229, 1256 (1995) (citing polls).
7 National Study and Action Plan
Regarding Lawyer Conduct and Professionalism, adopted by the Conference of Chief Justices, Nashville, Tennessee, at the Forty-eighth Annual Meeting, August 1, 1996.
8 John C.
Buchanan, The Demise of Legal Professionalism: Accepting Responsibility and Implementing Change, 28 VAL. U. L. REV. 563, 575 (quoting a speech by Judge Douglas W. Hillman).
9 See Warren E. Burger, The State of Justice, A.B.A. J., Apr. 1984, at 62.
10 Smith, supra note 4, at 613.
11 James E. Moliterno, Lawyer Creeds and Moral Seismography, 32
Wake Forest L. Rev. 781 (1997) (quoting a 1906 report of the Association of American Law Schools).
12 A.B.A. Commission on Professionalism, In the Spirit of Public Service: A
Blueprint for the Rekindling of Lawyer Professionalism (1996).
13 See Brent E. Dickson and Julia Bunton Jackson, Renewing Lawyer Civility, 28 VAL. U. L. REV. 531, 537 (1994).
14 National Conference on Public Trust and Confidence in the Justice System, National Action Plan: A Guide for State and National Organizations, Feb. 1999.
15 See A National
Action Plan on Lawyer Conduct and Professionalism, adopted by the Conference of Chief Justices, January 21, 1999, Nashville, Tennessee.
16 Implementation Plan, Conference of Chief
Justices' ÔA National Action Plan on Lawyer Conduct and Professionalism, issued August 2001, p. 3 (quoting the National Action Plan).
17 Dickson and Jackson, supra note 13, at 538-539 (quoting American Inns of Court organizational information).
18 Simon Blackburn, Being Good 23 (2001).
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