The Ins and Outs of Legal Professionalism
Professionalism in the context of the law is not definable by one word or one phrase. However, one leading legal professional organization states Legal professionalism can be summed up in this way: Lawyer Professionalism reflects the moral, ethical, and civic obligations of a lawyer to support our system of justice and to strengthen the legal profession.
A lawyer’s professionalism is the foundation for effective practice. All lawyers and judges are expected to conduct themselves with professionalism under all circumstances. Recognizing that we are all human, the rules of law practice thus include clear guidelines for professional conduct. Lawyers who fail to recognize and exhibit professionalism will likely find themselves being reported to the appropriate state authority . In all jurisdictions, attorneys and judges are expected to act professionally and respectfully to the rules and standards guiding their profession; The American Bar Association Model Rules of Professional Conduct (the "Rules") sets forth the basic standard for appropriate conduct in the practice of law along with ethics rules, which are discussed in the respective sections of this website.
Ultimately, legal professionalism is about the honoring of a social contract – that the service lawyers provide in the courts (and clients pay for) will help see just outcomes in the resolution of disputes that affect everyone. Legal professionalism is essential to the rule of law and the functioning of our entire justice system. In short, professionalism is good for business.
Five Key Attributes of a Professional Lawyer
At the core of legal professionalism is a clear understanding of what it means to be a professional lawyer. Professional lawyers are those who strive to be honest, competent, reliable, responsible, and empathetic. They exhibit integrity and accountability in everything they do, and they treat their clients to stellar customer service.
"Integrity is the glue that holds our profession together," states Supreme Court Chief Justice John G. Roberts Jr. in his 2016 Year-End Report on the Federal Judiciary (the most widely read judicial document in the world). "Integrity requires lawyers to work for the overall public good, not merely the interests of a particular client."
"Competence" has been defined as "the possession of suitable skill, knowledge, and experience for the purpose of accomplishing something." In the legal profession, that translates to having a firm grasp of the law and its intricate rules and regulations. Competent lawyers have the ability to tailor the law and its tenets to meet the needs of each specific client. In other words, they clearly and succinctly explain the law so clients cannot only understand it, but also see how it applies to their personal situation.
Take, for example, a specialized set of labor laws. If a lawyer offers advice on one law that is not pertinent to a client’s particular circumstance, then that attorney, no matter how well meaning, is not being competent. If a lawyer fails to correct a misunderstanding on a point of law, then he or she is not being competent. Failing to obtain a client’s signed consent to represent them is not being competent. And failing to refer the client to another lawyer with more expertise in the area of law is – at a minimum – not being competent.
A key component of competence is being able to correctly predict how a particular judge will respond or rule on a certain issue. Lawyers who have practiced in their jurisdiction for some period of time are often adept at demonstrating this "trait." For example, in a family law case, if a lawyer has practiced there long enough, he or she knows which family law judges are inclined to award full visitation rights to grandparents, and which ones are not. How does that help a client? It can mean the difference between winning – or losing – a motion or a case in the family court. However, state-by-state, and county-by-county, these results may differ from one jurisdiction to another.
Other traits of professional lawyers include accountability, empathy, and treating their clients to stellar customer service. Accountability "means being accountable for the representations lawyers make to judges and other parties." It means being independent-minded, reliable, and competent. It also means being able to recognize the limits of one’s own abilities and experience and knowing when to collaborate and when to refer clients to others who more experienced in a particular area of the law.
Empathetic lawyers know how to listen to their clients. During a lawyer-client meeting, this may mean making an effort to set aside any pre-conceived ideas (or biases) about what a client’s needs. It may also mean pushing aside any lingering thoughts about a lawyer’s last appointment and instead focusing on the client’s needs at that moment.
The Importance of Ongoing Legal Education
For the modern lawyer, continuous self-education is an essential component of professionalism. To that end, continuing legal education is a requirement in every U.S. state and controlling jurisdiction. For many, gaining CLE credit is also a great excuse to keep up with legal trends and recent case law. CLE requirements range from only one ethics credit in some jurisdictions, to 30 hours in California and over 50 in Georgia, which boasts the most stringent requirements in the United States. Ensuring you fulfill your state’s requirements not only allows you to maintain your license, but also enables you to engage with your peers and keep your legal knowledge fresh. Whether you’re invited to speak or obtain your CLE from an online provider, the goal of learning the latest legal practices and tricks of the trade to benefit your clients and improve your practice should be your focus. In many cases, there are valuable resources right at your fingertips, and you simply need to make the time to access those benefits without unnecessary travel or cost. Keep an eye out for programs and materials issued by your state and national associations, your CLE provider(s), your lawyer or attorney group, and your court system.
Holding Yourself to Ethical Standards
Legal professional ethics is a legal practice area in its own right. How well you master the parameters of legal professional ethics has a direct impact on your ability to run a successful practice. It directly affects your firm’s reputation, your ability to attract and retain clients and lawyers, your personal reputation, and whether you’ll wind up facing disciplinary action.
Responsible for providing guidance to attorneys on professional behavior, including issues of candor, fairness and confidentiality, are the American Bar Association’s (ABA) Model Rules of Professional Conduct. Overseeing state bar associations’ use of these ethical guidelines are the ABA’s Standing Committee on Ethics and Professional Responsibility and many state bar associations’ ethics assistance programs.
A word about references to the American Bar Association’s Model Rules of Professional Conduct. Please keep in mind, that though the ABA model rules are influential, they do not constitute law and have no binding legal force. Each state individually adopts the rules their attorneys are responsible for following. While most states have adopted rules similar or identical to the ABA model rules, a few have not. Even when the state rule does not specifically address the circumstantial situation being questioned, what is critical is that state law and the rules of professional conduct are not contravened.
Managing Your Practice with Professional Conduct in Mind
Professionalism is about trust, respect, and confidence. Remember in medieval England when we all used to go to the same people for advice on personal issues? If you had a problem, you went to the church. If you needed advice, you went to the law. People sought our help through personal relationships with the people who provided them advice and guidance. Over time, these relationships became transactional. We now work with our clients from a distance. This means our clients have to build their trust for us through something other than personal relationships. When our relationship with our clients comes through the law firm, then we must have a culture of professionalism. Clients will trust your opinion more if they know that your law firm has been around for generations. If they know that your law firm has gotten many multi-million dollar verdicts with its clients.
We all have clients who simply don’t understand what we are trying to do for them. They only see what they want to focus on. While some people might joke about how much their lawyers make, the bigger joke is on them when they get no help from their selected person. Yet they trust that person. Our clients sometimes see things from such a close vantage point that they miss the bigger picture. It is incumbent upon us to show them that bigger picture. Another area of professionalism is to take the time to really explain to them what is happening in their case. Don’t ever assume they know what is going on. Your client may have been through a thousand car wreck cases but that does not mean that they know what you are doing on this one following a similar incident . In fact, even if they do know, part of professionalism is to keep them informed.
I had a client last week who assured me that she had taken care of all her bills. I encouraged her to check with her bankruptcy attorney. No harm was done to check. She called the bankruptcy court and learned that her attorney’s office had not filed the documents properly. As a result, her $20,000 medical bill went unpaid and her credit will be affected. She was so appreciative for me to insure that she had taken care of all her obligations. Professionalism requires us to stay in touch with our clients. I have read studies that show that clients will leave after the 7th phone call or letter has been ignored. Okay, the chart may not be correct but the premise is. Clients expect us to stay in touch.
By staying in touch, we build the trust and relationship with them they have grown to desire. I check in with my clients at a minimum of once a month. Some clients I talk to several times a week. We all have our way we stay in touch. I tend to let them know I have not forgotten them with a note or letter. I send out a card every month to my clients. While I do not remember every client’s birthday, I do remember the date of their accident. I try to send a card that day as well as their birthday. They love those cards and letters. It is another great way to build trust with them. Even clients who have not ended up with a big case seem to appreciate the notes and cards. Many say they look forward to get one. It builds a relationship. That is professionalism to me.
The Challenges Facing Professionalism
While the concept of legal professionalism is firmly rooted in ethical mandates, it also requires dedication to the long-term vision of our profession as a whole. Upholding the hallmarks of professionalism during the most trying of times can be both difficult and even counterproductive to a lawyer’s immediate objectives. Recognizing the potential to cause lasting harm to our clients and our profession as a whole, the Rules of Professional Conduct are particularly clear when it comes to professionalism. Therefore, when faced with ethical dilemmas, a lawyer’s resolution should always be to address the situation in a manner that promotes our shared ethical standards of civility and courtesy. Common challenges created by high stress situations or conflicts of interest are discussed below. High stakes and high stress can be an inevitable part of many legal matters, whether it is a criminal defense matter, a high-stakes litigation case, or a major corporate acquisition. In many instances, lawyers have a tendency to become immersed in the details of a case due to the demands of their clients and the urgency of the situation. However, engaging in behavior that is less than professional because tensions run high will not only reflect poorly on the lawyer, it may also have a negative impact on the client’s case. For example, in a criminal defense case that is fraught with stress, a new and unanticipated development may require a plea deal or other action that is not in the client’s best interest being completed hastily. A lawyer who is not able to maintain professionalism during these high stress situations may become unreasonably abrasive and difficult to work with during these circumstances. To avoid this type of situation, lawyers must stay focused on the matter at hand and maintain a complete commitment to seeing the case through to its conclusion. Conflicts of interest present another significant challenge when it comes to legal professionalism in today’s law offices. Clients often want to switch lawyers when they discover that they share counsel with a member of an opposing party. When this occurs, it is in the best interest of the firm and all clients involved to present an opportunity for the client to choose whether they are comfortable having a shared attorney working on the matter. In some cases, clients may decide that they do not have a conflict and are comfortable continuing to work with the attorney involved. In other cases, they may wish to select new counsel. Management of difficult clients can also create a challenge. At times, attorneys are confronted with clients who are dishonest, fraudulent, unethical, and abusive. While the costs of letting these types of clients go may be considerable, allowing the client to remain on board could be more costly. It is therefore vital for lawyers to be well aware of the personalities of their clients and be unwilling to work with a client they know is going to create extreme personal costs to them.
A Case-by-Case Study on Legal Professionalism
A few illustrative examples may help us understand how professionalism, or the lack of it, affects a lawyer’s success and the administration of justice. In In re Capra, we read of a successful "big firm" litigator who received a public reprimand from the Florida Bar for an ex parte communication with the trial judge. The reprimand related to remarks the lawyer made to the judge about the scheduling of a status conference and also an ex parte letter sent later to clarify what he said in the status conference. The lawyer later testified that during the status conference he "was simply attempting to persuade the trial court to schedule a hearing on his motion." While that explanation was noble in some respects, unfortunately it also offered evidence of an inability to appreciate the effect of his actions on the judge, his opponents, his client and the reputation of the Bar. In the eyes of the Bar, a lawyer is just that—a lawyer. And his or her actions are likely to be viewed as an egregious breach of the professional conduct expected of lawyers, particularly those whose actions and words are carefully scrutinized (i.e., litigators). In another case, this one unpublished, the lawyer took a family law case over from another attorney after a previous attorney had filed a motion to withdraw. The previous attorney had filed the motion to withdraw because of a breakdown of relations with the client. Upon taking the case, the new attorney contacted the opposing counsel and judged the case by that lawyer’s opinion (hey, the other lawyer’s a jerk; we’re beat). The new attorney agreed to the entry of a judgment against the client that included the payment of attorney fees. The new attorney did not file a motion to withdraw, or even discuss the prior motion to withdraw with the trial judge. After entry of the judgment the new attorney sought to vacate the judgment based on attorney mistake. The trial court denied the motion and, on appeal, the Fourth District affirmed, finding that the attorney forfeited any argument for equitable relief based on his failure to act for three years after entry of judgment. But the inquiry did not end there. The Fourth District concluded that the new attorney’s conduct violated the rules of professionalism established by the Supreme Court. The Fourth District laid out the following scenario of professional conduct: The new attorney’s principal activity consisted of meeting with opposing counsel , looking over the file, and then agreeing to enter a joint stipulation for a judgment for [the opposing party] and against [his client]. His only stated strategy for doing so was to take a shot at a ‘roll of the dice’ that the trial court ‘might see things differently.’ This causes us to consider an example of the conduct that the supreme court clause [governing professionalism] sought to eliminate: ‘At the end of my case, I called the other lawyer and said, let’s go have a drink. Let’s settle this. He agreed. We sat down, and the other lawyer started talking about the case and telling me what was wrong with it. I agreed with most of his comments and reluctantly agreed to his suggestion that I pay $5,000 in legal fees.’ How do we know that such a conversation occurred between counsel? Because that conversation resulted in a bar proceeding where a violation of the rules of professionalism was found and the offending lawyer was publicly reprimanded. That opinion concluded: ‘No practicing attorney should agree to pay a fee, without more, if it was not agreed to in advance, so that their client’s interests were put at risk and, in a case like the present, even under a claim of mistake.’ In response to the concern raised in that case, the new attorney here responded by attempting ‘to persuade’ the trial judge, without disclosing what was in his mind when he sought the judgment, and then filed an ex parte letter to state his position, which he did not copy to opposing counsel or the court. Another seeming viable argument was that the previous attorney’s actions caused the mistake. That argument was addressed previously in the one cited case here, and after the case law cited above, it is clear that such a circumstance is no defense to violations of the rules of professionalism. So, what is professionalism? A good start may be reading the case law in this area. It is meant to discourage unprofessional conduct in all circumstances, no matter how petty, and no matter the level of incompetence of opposing counsel.