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Business Law Today

Professionalism:
It's no joke
By Charles E. McCallum
Lawyer jokes and cartoons have become a part of our culture. Most lawyers will laugh at them, even though they may not be very funny and if targeted at a minority group would be abhorrent. But even those that are funny and provoke a genuine laugh should give lawyers pause. Are we just misunderstood, or are we doing something seriously wrong?

Many lawyer jokes and cartoons make one or more of the following points:
  • Lawyers care only about making money. These jokes and cartoons suggest that lawyers care more about their fees than about their clients. (Such as: Lawyer discovers that a client paying fees inadvertently gave the lawyer two $100 bills stuck together. The lawyer recognized that he faced an ethical dilemma: "Should I tell my partner?" or cartoon: Lawyer sitting across desk from worried client says: "Well, Mr. Jones, how much justice can you afford?")
  • Lawyers care only about themselves. Jokes and cartoons of this category imply that lawyers care only for themselves — they have no compassion for others. (Such as: Devil offers lawyer wealth and fame in exchange for the souls of the lawyer's wife and children. After thinking for a minute, the lawyer says, "What's the catch?")
  • Lawyers are deceitful. These jokes and cartoons characterize lawyers as dishonest. (Q: How can you tell if a lawyer is lying? A: His lips are moving.)
Why are we so poorly regarded? Partly, I think, because we have strayed from our professional ideals. How can we get back to them? To answer that question we first need to define what we mean by a "profession," a term I use here to refer to what have historically been called the "learned professions" — law, health care and the clergy.

These days, the words "profession" and "professional" are sometimes used more loosely to refer to individuals engaged in a wide variety of other trades and occupations. While such individuals may share similar training (and, in some cases, licensure), the primary focus of their associations is, like medieval guilds, to advance the interests of their members. They are more trade associations than professional organizations.

What, then, defines a "profession," as I use the term? I will suggest seven attributes that characterize professionals. I preface my suggestions as to what characterizes a professional with two general observations:

First, there is an ethical/moral dimension to what it means to be a professional. This is recognized in the Preamble to the Model Rules of Professional Conduct, which acknowledges that lawyers must be guided by "personal conscience" and the exercise of "moral judgment." A sound moral compass is essential.

Second, as David Maister observes in True Professionalism, "Professionalism is predominantly an attitude, not a set of competencies." Great professionals are distinguished, he says, not by their abilities but by the pride they take in their work, their commitment to quality, and their devotion to the interests of the client. To that I would add the notion of passion. The true professional is passionately committed to quality, passionately devoted to the interests of the client, and passionately devoted to the public interest and the administration of justice.

To be of value to the client, of course, that passion cannot be blind, but must be joined with and energize the lawyer's exercise of independent professional judgment. The professional thus has the difficult task of being passionately committed to the client's interest and at the same time professionally detached.

Against that background of moral dimension and passionate commitment, I suggest that the following are the principal attributes of the learned professions (including the law). While consistent with what has been written on the subject, these suggestions are based primarily on my experience of more than 40 years in the practice of law, and on what I was taught in law school and learned from mentors and role models in the profession.

1. Dedication to serving clients before self. A lawyer puts the interests of her clients before her own interests. The lawyer has an intense, fiduciary-like relationship with her clients, and accepts responsibility for advancing their interests. This relationship and responsibility underlie the ethical rules (confidentiality, avoidance of conflict of interest, zealous advocacy) that flow out of the lawyer's overriding duty of loyalty to the client.

The very best lawyers have a fanatic, almost compulsive, dedication to client service. They learn as much as they can about their clients' business, listen closely to those clients' needs, and try to think like those clients in order better to serve them. If a single Latin word were to be the motto for the legal profession, it would be servimus ("we serve"). This zealous dedication to service is founded on a deeply caring attitude.

Some part of what has gone wrong in the practice of law arises out of misplaced priorities, with some lawyers allowing accumulation of wealth to be placed ahead of dedication to service. I do not mean by this to suggest that lawyers should not be businesslike in the conduct of their profession. To the contrary, efficiencies and specialization should result in services being delivered "better, faster and cheaper," a benefit to clients. Nor do I mean to suggest that a lawyer is not entitled to earn a very good living.

But, as Maister observes in True Professionalism, "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 says that one of his favorite questions is to ask lawyers, "Why do you do what you do?" The answer he always listens for is "I like helping people." If that one is missing, he says he knows that he is dealing with a professional in trouble.

2. Dedication to serving the public interest. The lawyer as professional has duties, as a "public citizen," to work to improve the law, to assist the courts in the administration of the system of justice, and to assure access to justice by all, including those who cannot afford to pay for adequate legal assistance. Also, lawyers have a duty of public service as volunteers in nonprofit organizations or in unpaid appointed or elected governmental positions. It is to a large extent in consideration of their public service obligation that lawyers have been granted substantial privileges, including professional independence and self-governance.

The professional responsibility of every lawyer to provide voluntary pro bono publico legal services to those unable to pay is set forth in the Model Rules of Professional Conduct. Another equally important professional public service obligation is law reform, and in particular reforming the law and government processes so as to reduce the public's need for legal services.

We should take care to avoid the criticism that has been leveled at the medical profession — that it has focused on remedial services (requiring more professionals) rather than on preventive services (reducing the need for professionals). Our role model might be dentists, who endorsed fluoridation of water supplies and fluoridated toothpaste because they reduced the incidence of tooth decay, despite the fact that this would over time reduce the need for dental care.

3. Honesty and integrity. The Model Rules of Professional Conduct unambiguously require uncompromising honesty and integrity. A lawyer may not engage in conduct involving "dishonesty, fraud, deceit or misrepresentation," even when in a specific instance honesty works to the client's disadvantage. Thus in representing a client a lawyer may not make a false statement of material fact or law to a third person, nor may she fail to disclose a material fact when necessary to avoid assisting a client's criminal or fraudulent act. And a lawyer may not knowingly mislead a tribunal or offer evidence that the lawyer knows to be false.

Integrity means strict adherence to a code of ethical values. Recent developments in the world of business law underscore the importance of strict adherence to ethical values. For example, a lawyer may not misrepresent his identity in the course of conducting a corporate internal investigation or, as is alleged to have occurred in the Hewlett-Packard scandal, knowingly engage a nonlawyer to do so, even if the misrepresentation does not violate applicable law. That is, a lawyer may not behave dishonestly simply because it is not criminal to do so.

Nor may a lawyer turn a blind eye when it is obvious that her services are assisting the client in the commission of a fraud or a crime, as is alleged to have occurred in the Enron debacle, or give a legal opinion to be relied on by third parties that is based on factual assumptions that the lawyer cannot reasonably believe to be true.

Honesty and integrity go together with loyalty, reliability, fairness and compassion to make up "character," which is sometimes defined simply as moral excellence. That good character is essential to professionalism is evident from the fact that processes for admission to the bar include an investigation of the applicant's character and fitness.

4. Dedication to excellence. The professional has high standards for professional services, and none higher than those he demands of himself. However many times a professional may have done a particular task, he will seek each time to do it better than before. And even though the client may impose a cap on the fees for the project, the professional will do what it takes to do the job right, regardless of the fact that he may not be paid for all of his work. The phrases "good enough" and "this will do" are anathema to the professional.

5. Practice in context. The professional serves his client with knowledge and awareness of the "big picture" — the overall setting and context in which services are rendered. A doctor, for example, cannot fulfill his professional duty to his patient by prescribing for one condition while ignoring the patient's overall health and the potential interactions of the medication with the patient's other conditions.

In the same way, a lawyer cannot fulfill his professional duty to the client simply by delivering an excellent real estate deed if he fails to at least raise with the client other potential issues in the acquisition of real estate, such as environmental risks. For this reason the lawyer, as a professional, seeks to know and understand the context in which the client operates and in which the lawyer's services are being used.

6. A specialized body of knowledge and skills freely shared with other professionals.Lawyers must learn, and bar exams test, a specialized body of knowledge and skills. After admission to practice, the lawyer — as a professional — has a continuing obligation (even if not required by her state's rules of professional conduct) to update, renew and expand such knowledge and skills through continuing legal education. And, as professionals, lawyers who develop or acquire new knowledge or techniques freely share it with the profession generally, in furtherance of the public interest, just as doctors readily share with one another new treatments that may alleviate suffering or save lives.

7. Adherence to ethical rules and participation in self-regulation.The Model Rules of Professional Conduct are disciplinary rules of professional ethics designed to serve the interests of clients and the public. In addition to the obligation to abide by the letter and the spirit of those rules, lawyers also have the duty to work for the improvement of the profession and to assist in its self-regulation.

As a first step toward restoring professionalism, we must be mindful of and guided by those seven essential professional attributes. Understanding what it means to be a professional is not enough, however. We must articulate the message of professionalism to young lawyers and law students. This must be done in our law schools, and in our law firms, and by judges and leaders of the bar. Even more important, we must live by those professional standards in our own lives at the bar. Ultimately, it is up to the profession to re-assert professionalism.

Even if all lawyers were to "talk the talk, and walk the walk," however, we should not expect lawyer jokes and cartoons to fade from the scene. Cultural stereotypes die hard. But if we can re-ground ourselves in professionalism, we will feel better about ourselves, individually and as a profession, and less embarrassed by those jokes and cartoons. We are embarrassed by them because they are too close for comfort. We will feel better when we can be confident that they are wide of the mark.

Model Rules and the profession

Support for the suggestions set forth in this article can be found in the Preamble to the ABA Model Rules of Professional Conduct:

"A lawyer, as a member of the legal profession, is a representative of clients, an officer of the legal system and a public citizen having special responsibility for the quality of justice." Preamble [1]

"As advisor, a lawyer provides a client with an informed understanding of the client's legal rights and obligations . . . As advocate, a lawyer zealously asserts the client's position under the rules of the adversary system. . . . As negotiator, a lawyer seeks a result advantageous to the client but consistent with requirements of honest dealings with others." Preamble [2]

"A lawyer's conduct should conform to the requirements of the law, both in professional services to clients and in the lawyer's business and personal affairs. A lawyer should use the law's procedures only for legitimate purposes and not to harass or intimidate others. . . . While it is a lawyer's duty, when necessary, to challenge the rectitude of official action, it is also a lawyer's duty to uphold legal process." Preamble [5]

"As a public citizen, a lawyer should seek improvement of the law, access to the legal system, the administration of justice and the quality of services rendered by the legal profession. As a member of a learned profession, a lawyer should cultivate knowledge of the law beyond its use for clients, employ that knowledge in reform of the law and work to strengthen legal education. . . . [A]ll lawyers should devote professional time and resources and use civic influence to ensure equal access to our system of justice . . . A lawyer should aid the legal profession in pursuing these objectives and should help the bar regulate itself in the public interest." Preamble [6]

"A lawyer should strive to attain the highest level of skill, to improve the law and the legal profession and to exemplify the legal profession's ideals of public service." Preamble [7]

"The legal profession's relative autonomy carries with it special responsibilities of self-government. The profession has a responsibility to assure that its regulations are conceived in the public interest and not in furtherance of parochial or self interested concerns of the bar." Preamble [12]
McCallum is a partner at Warner Norcross & Judd LLP, in Grand Rapids, Mich. His e-mail is cmccallum@wnj.com. This article is based on a paper presented at a program entitled "Lawyer Jokes and Bashing — A Bum Rap or Painfully on Target?" at the 2006 Annual Meeting of the ABA Section of Business Law.

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