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EDITOR'S NOTE: The following article is the first of a two-part series examining the professionalism movement, and current attitudes and efforts directed towards improving professionalism
-including civility and integrity -in the legal profession.
I. The Concept of Professionalism
In his oft-cited Democracy in America, Alexis de Tocqueville observed this about lawyers in the early nineteenth century: "If I were
asked where I place the American aristocracy, I should reply, without hesitation, that it is not among the rich, who are united by no common tie, but that it occupies the judicial bench
and the bar."1 An aristocrat himself, Tocqueville's observation was not likely intended as a denouncement of lawyer elitism. Rather, his purpose was probably to describe his perception, as a political journalist, of the critical role that lawyers played in the early development and maintenance of a reliable democracy. Most of the signers of the Declaration of Independence were lawyers. Many of America's early statesmen were lawyers. Perhaps in Tocqueville's view, the place occupied by lawyers in early American society was most comparable to the place the aristocracy was supposed to occupy in the classic European tradition -leaders and statesman dedicated to protecting and advancing the public good.
Such an assessment is appealing. Our profession would certainly be justified to take pride in a role as societal fiduciary. The same Tocqueville quote was cited favorably by a former
president of the American Bar Association, Martha Barnett.2 While allowing that lawyers "have never been popular," she asserted that:
[L]awyers have always enjoyed a special status -and indeed a special place -in the hearts of Americans because the public believed that the legal profession had a mission that was
bigger than the business of practicing law. They understood the concept of the ‘lawyer-statesman’ who combined practical wisdom and statesmanship to advance society and its democratic
values.3
Whether and to what extent the legal profession actually occupied such an elevated status in the minds of the general public is a point of debate in the current "professionalism
revival."4 But without regard to the public's historical sentiment, it is generally accepted among the legal profession that lawyers have a duty or responsibility to conduct themselves in accordance with a high set of moral values. These high moral values -which seem, in relevant commentary and scholarship, universally to include integrity, civility, competence and independence, among other things -are the concept of professionalism. One commentator stated:
At the most abstract level...everyone agrees that professionalism consists of something more than the ordinary rules of legal ethics that simply prohibit the worst sorts of behavior by
lawyers. Professionalism is loftier -an attitude, manifest in actions, demonstrating that the lawyer holds to fundamental principles that transcend any immediate project.
Professionalism makes one's vocation an aspiration. While ordinary lawyering can bring success, professionalism evokes praise.5
II. A Sense of Declining Professionalism
Certainly, most members of the legal profession endeavor to conduct themselves in a manner that is consistent with the ideals of
professionalism. Nevertheless, professionalism problems are neither new nor rare.
For example, at a Yale University commencement in 1776, the speaker discouraged the young graduates from pursuing a legal career. His warnings to the students -that the legal profession
was riddled with meanness and deception, was needlessly litigious, and postponed trials in order to earn higher fees -could easily have been lifted from the editorial page of a
contemporary newspaper.6 The commencement speaker's negative opinion is curious when juxtaposed with Thomas Jefferson's characterization of the lawyers who signed the Declaration of Independence in the same year as "demi-gods."
There is a widely-shared perspective that incivility among lawyers, rude behavior, disrespect for the courts and judges, and other non-professional interactions are taking place with
increasing frequency.7 Indeed, there is no shortage of law review articles, bar association studies and treatises that address the critical importance of improving professionalism. And as of the beginning of last year, professionalism commissions (called by a variety of names) had been established in ten states, and several others states have followed during the past year.8
III. Application of the Ideals of Professionalism
Unfortunately, there is by no means a consensus of opinion on how to apply the ideals of professionalism in the practical context of the legal profession. Many commentators are concerned that the current ethical rules will not be adequate to the task.
Another former president of the American Bar Association, Jerome J. Shestack, said:
The problem that has evolved with the current rules is that they seemingly create minimum standards that have come to be regarded as the maximum statement of the prevailing ethical
level. At the same time, the rules are often viewed the same way as people look at the Internal Revenue Service regulations -how far can I push the envelope without actually violating
the regulations? Such a viewpoint does not enhance a strong, professional commitment to ethics.9
Similarly, another commentator has stated that the "contemporary evolution of ethical codes into quasi-criminal rules of minimum conduct largely abandons their role as a source of
vocation or calling."10 The distinction between the current ethical rules and professionalism is one of scope, with the ethical rules being a subset of the professionalism ideals. The distinction is also one of substance, with the ethical rules based in a "morality of duty" and professionalism based in a "morality of aspiration."11 Under the current rules construct, errant lawyers are brought into compliance with ethical duties through punishment. Motivation to achieve the loftier ideals of professionalism -which would require the internalization of certain shared moral values -will undoubtedly require a more multifaceted approach reliant on cooperation at both individual and institutional levels.
Both internal and external justifications will influence the adoption and implementation of improved professionalism habits. Internal justifications, which are more personal in nature,
might include the assertion that acting with courtesy, dignity and respect is "a better way to live," or will provide a more fulfilling professional life, or will enable the
lawyer to become a more effective advocate because of the resulting respect she receives.12 External factors are more philosophical in nature and might include the concept that a lawyer is a recipient of the public trust through the licensure to practice law, and therefore has a duty to act in the interest of the public good and for the purpose of obtaining justice. Another more elegant external justification is based on the political philosophy of a secular and democratic society, which contemplates that the people themselves make the laws and govern themselves. In that construct, the legal professional is the agent for positive (or potentially negative) change and therefore has the weighty responsibility to infuse the legal process with societal context.13
It is anticipated that a forthcoming second part of this article will examine some of the suggested causes of the perceived decline in professionalism, as well as existing and proposed
methods for improved professionalism education.
Footnotes
1. Alexis de Tocqueville, 1 Democracy in America 355 (Henry Reeve Trans., Francis Bowen ed., 4th ed. 1864).
2. Martha W. Barnett, Keynote Address, 52 S.C. L. Rev. 453, 454 (2001).
3. Id.
4. Rob Atkinson, Law as a Learned Profession: The Forgotten Mission Field of the Professionalism Movement, 52 S.C. L. Rev. 621, 623 (2001). An additional point of debate is whether
the reason for any elevated status was the public's admiration for a higher set of values or simply the result of anticompetitive practices. Skeptics suggest that the professionalism
concept is either misplaced nostalgia for a hypothesized, happier era when law was purportedly less competitive and market-driven, or perhaps simply a ruse to allow lawyers to control the
market for legal services and exclude potential non-lawyer contributors from the legal dialogue. See generally Dean Kilpatrick & Robert L. Nelson, Professionalism from a Social
Science Perspective, 52 S.C. L. Rev. 473, 477 (2001); Deborah L. Rhode, In the Interests of Justice: Reforming the Legal Profession, 2 (2000). This debate is quite involved and
is beyond the scope of this article.
5. Timothy P. Terrell, Professionalism as Trust: The Unique Internal Legal Role of the Corporate General Counsel, 46 Emory L. J. 1005 (1997).
6. See Barnett, supra note 2, at 453.
7. See Rhode, Professionalism, 52 S.C. L. Rev. 458, 467-68 (2001).
8.
Florida, Georgia, New Jersey, New Mexico, New York, North Carolina, Ohio, Oregon, South Carolina, and Texas all had such commissions as of the beginning of last year. A.B.A. Standing Committee on Professionalism, A
Guide to Professionalism Commissions ix, 4-6 (2001) (hereinafter, the "Guide to Professionalism Commissions"). Some of the commissions are organized differently,
including not only in their mission and activities, but also in the way that they are operated and funded. Judges and lawyers who desire to establish a new professionalism entity in the
future will consequently have an array of experiences on which to draw. An informal review of bar association websites reveals that other states have created similar commissions since the
publication of the Guide to Professionalism Commissions, and the creation of such commissions is being planned in other states, including Utah.
9. Jerome J. Shestack, Taking Professionalism Seriously, A.B.A. J., Aug. 1998, at 70.
10. Roger C. Cramton, On Giving Meaning to "Professionalism", Teaching and Learning Professionalism 7, 10-11 (1997). For more information on the history of the
A.B.A. Model Canons of Ethics, see Frank X. Neuner, Jr., Professionalism: Charting a Different Course for the New Millennium, 73 Tul. L. Rev. 2041, 2042-43 (1999).
11. Id.
12. See Barnett, supra note 2, at 456; see also Justice Matthew B. Durrant, Civility and Advocacy, Utah Bar J.(June-July 2001).
13. Atkinson, supra note 4, at 627.
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