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P R O B A T E & P R O P E R T Y
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Professionalism for the Real Estate Law Practitioner
By Peter W. Salsich Jr.
Ethics and professional responsibility in the legal profession have been hot discussion topics in recent years. Many writers and commentators chronicle a sharp decline in professional ideals and standards. Numerous factors are cited, including the large increase in the number of lawyers in the United States and resulting competition for clients, over-emphasis on business practices, growth in the concept of law as a vehicle for social change, increasing diversity among lawyers and the popularity of the “post-modern” idea that “there is no [moral] truth to be discovered; there is only power.” See, e.g., Robert F. Cochran, Jr., Professionalism in the Postmodern Age: Its Death, Attempts at Resuscitation, and Alternate Sources of Virtue, 14 Notre Dame J.L. Ethics & Pub. Pol’y 305, 310 (2000).
A significant portion of the debate over professionalism has focused on the phenomenon of the large, multi-city/multinational law firm and the attendant emphasis on the business side of the practice. Must reading for anyone interested in this aspect of the debate is a symposium, Attorney Well-Being in Large Law Firms: Choices Facing Young Lawyers, 52 Vand. L. Rev. 871-1050 (1999). The lead article by Patrick Schiltz, a professor at Notre Dame Law School and former partner at a large law firm in Minneapolis, is highly critical of the large firm environment and what he believes is that environment’s negative impact on the lives of young lawyers. Responses agreed and disagreed with Professor Schiltz’s criticism, producing a lively and useful debate in print.
Numerous bar associations and other organizations of lawyers have responded to the concern about professionalism with statements reaffirming commitments to professional ideals and standards. For example, the Board of Governors of the American College of Real Estate Lawyers (ACREL) adopted a statement of professionalism that was designed to be “an integral part of the selection process for membership” in September 1997. Statement of Professionalism, Amer. C. Real Est. Directory 1 (2001). ACREL’s Statement of Professionalism commits members to a fourfold aspiration: commitment to the client, commitment to integrity, commitment to the profession, and commitment to the community. Although aspirational in nature, the Statement tracks ACREL’s purposes, among which are “to promote high standards of professional and ethical responsibility in the practice of real estate law.” Purposes, Directory at p.1.
Defining Professionalism and Framing the Discussion
Scholars have defined “professionalism” in a variety of ways over the years. Roscoe Pound defined “professionals” as persons who “pursu[e] a learned art as a common calling in the spirit of public service—no less a public service because it may incidentally be a means of livelihood.” Roscoe Pound, The Lawyer From Antiquity to Modern Times 5 (1953).
Anthony Kronman in his book The Lost Lawyer notes that “one important element in a group’s claim to professional status has very often been the belief that the work its members do engages a sufficiently broad range of human capabilities to have a transformative effect on the members’ personalities, to shape their identities in a lasting way by promoting the development of a distinctive professional character.” Anthony T. Kronman, The Lost Lawyer 371 (1993). W. Bradley Wendel argues that the professional responsibility of lawyers is founded on three public values “that derive from the social function of lawyers and from the traditions and practices of the legal profession.” W. Bradley Wendel, Public Values and Professional Responsibility, 75 Notre Dame L. Rev. 1, 7 (1999). These public normative principles are “the principle of undivided loyalty to one’s client, the duty to seek justice, and the ethic of care or mercy which asks lawyers to consider the effect of their actions on human relationships.” Id. at 37.
Timothy Terrell and James Wildman, a law professor and a managing partner of a large law firm, recommend that lawyers focus on the “essence of professionalism,” which in their opinion contains the following interrelated values:
• an ethic of excellence;
• an ethic of integrity;
• a responsibility to say “no”;
• a respect for the system and rule of law;
• a responsibility to say “why”;
• a respect for other lawyers and their work;
• a commitment to accountability; and
• a responsibility for adequate distribution of legal services.
Timothy P. Terrell & James H. Wildman, Rethinking Professionalism, 41 Emory L.J. 403, 424-431 (1992).
These definitions, however, provide only a general framework for this discussion. Putting professionalism into practice requires consideration of the role the lawyer plays in representing a given client.
The Conflicting Roles that Lawyers Play
Scholars have noted that lawyers’ responses to ethical issues arising in their practices tend to be influenced by the often conflicting roles they may be playing. Professors Tom Shaffer and Bob Cochran have identified four roles that lawyers play and four corresponding approaches to moral choices concerning “whether the lawyer and client should take actions that will work to the disadvantage of other people.” Thomas L. Shaffer & Robert F. Cochran Jr., Lawyers, Clients and Moral Responsibility 3 (West 1994). Lawyers may, at times, have to play one or more of these roles to accomplish their clients’ transactional goals.
• The godfather. The “lawyer as godfather” takes control of a situation on behalf of the client, the “godchild.” The client neither controls the lawyer nor decides what the lawyer should do. Instead, the lawyer decides “questions unilaterally in terms of the imputed ends of [client] selfishness.” The lawyer uses advocacy and planning skills to carry out the client’s wishes. The lawyer as godfather is “a modern manifestation” of paternalism, “direct[ing] the client to act selfishly” and limiting the client’s freedom for the good of the client.
• The hired gun. The “hired gun” role dictates that lawyers do whatever clients want done, so long as it is not illegal. The lawyer’s role is not to question the morality of the client’s position nor to impose the lawyer’s moral code on the client. Lawyers can decline to accept representation, but once representation is accepted the client is entitled to the unquestioned loyalty of the lawyer.
• The guru. In the “conscientious objector” role, a lawyer’s activities are based not merely on what clients expect but also on the dictates of the lawyer’s conscience. Lawyers and clients make decisions, separately, without being influenced by the other. If a lawyer does not believe that a requested action is morally correct, the lawyer is free to refuse to perform the action, even after accepting representation. Withdrawal from the case is the lawyer’s way of reconciling the moral concerns with the interests of the client.
• The friend. In the “caring friend” role, lawyers and clients work together, in a spirit of mutual respect and trust, to accomplish a task in a way that can make each a better person. The lawyer cares for the moral growth of the client and, through effective use of listening and counseling skills, assists the client in deciding the right course of action to take. Id. at 5-54.
Although these roles traditionally have been viewed as mutually exclusive approaches, the Model Rules of Professional Conduct attempt to combine several. The Preamble to the Model Rules states: “Virtually all difficult ethical problems arise from conflict between a lawyer’s responsibility to clients, to the legal system and to the lawyer’s own interest in remaining an upright person while earning a satisfactory living . . . . Such issues must be resolved through the exercise of sensitive professional and moral judgment guided by the basic principles underlying the Rules.” American Bar Association, Model Rules of Professional Conduct 2 (1983).
Commitment to the Profession
• Civility. The Golden Rule is a good place to start a discussion of civility. The perception of incivility among lawyers exists both within and outside of the legal profession. Commentators attribute the decline in civility to many factors, including demise of the lawyer-statesman ideal, rise of a business emphasis in the practice of law, increasing diversity in the profession and corresponding differences in attitudes and values, overzealous advocacy manifested in misuse of discovery and other procedural rules, allowance of uncivil behavior by judges in their courtrooms and media emphasis on overzealous lawyers.
Emanuel Halper, writing from the perspective of over 40 years of practice of real estate law in and around the New York metropolitan area, urges lawyers to “change the atmosphere.” Emanuel Halper, Lawyers Doing Battle, 27 Real Est. Rev., Winter 1998, at p. 62.
When I read the first draft of a contract, mortgage, or lease that someone sends to my client I usually get the feeling that the drafter hates us. Hates, not abstractly, but deeply, really, vituperatively. I often read leases prepared by a landlord’s lawyer. As I wade through its turgid prose down to the last run-on sentence I sometimes wonder whether my client (the tenant) really has the right to occupy the premises. . . .
[W]hen my client is the landlord, reviewing a form lease prepared by a powerful tenant can also leave me incredulous. Some tenant form leases provide for so many opportunities to withhold rent payments that I wonder whether the tenant is really willing to pay any rent at all. .
. .Since most lawyers don’t litigate, and they spend most of their lives negotiating, it would seem a particularly good idea for them to discard old notions and to rethink their role in society. They are professional negotiators. . . .
Id. at 62, 64.
Two ways that lawyers can begin to change this atmosphere are through mentoring and continuing education programs.
• The Importance of Mentoring. The report of the ABA Task Force on Law Schools and the Profession documents the enormous changes that have taken place in the legal profession since 1970, including the increase in the number of new lawyers and their diversity and the trend toward larger law firms run like modern businesses. American Bar Association, Legal Education and Professional Development—An Educational Continuum (Robert MacCrate ed., West 1992) (hereinafter MacCrate Report). Despite a dramatic growth of organized professional training programs within law firms, corporate law departments and government agencies, anecdotal evidence such as conversations with former law students and other lawyers indicates a growing inability to manage the “tension between zealous client representation . . . and lack of courtesy and [use of] frivolous pleadings and motions.” Kathleen S. Schoene, Lawyer Professionalism: Not an Oxymoron, St. Louis Lawyer, July 1995, at 3.
Judges and academics have suggested that a mentoring program between experienced attorneys and new attorneys could be a useful way to help students make the transition to law practice and to inculcate the values espoused by the profession. Mentoring should include advice and counsel on how to balance the demands of professional practice with the human values of family life and community involvement.
ACREL’s Statement of Professionalism commits members to “training and mentoring new and less experienced lawyers and voicing respect for the legal system.” Virtually all of the recent articles and commentaries about the state of the legal profession have included strong exhortations to revive the practice of mentoring.
The opportunity for one-on-one contact is mentoring’s great benefit, but also its cost. Given the sheer number of new lawyers each year, a serious mentoring program would require extensive commitments from experienced practitioners. But mentoring offers the teaching techniques of personal example and immediate feedback. In the words of Justice Sandra Day O’Connor, “it is by deed rather than by decree that attorneys teach each other that it is possible to ‘disagree without being disagreeable.” Sandra Day O’Connor, Professionalism, 76 Wash. U.L.Q. 5, 10 (1998).
A mentorship program for real estate lawyers should focus on inculcating professional values in a transactional environment. Lessons in civility, honesty and integrity can be given during drafting, negotiation, and other aspects of transactional practice.
• Practitioners as Educators. Law schools increasingly turn to the practising bar for assistance in offering courses and seminars in real estate development and finance. The MacCrate Report, an extensive study of the legal profession including law school, the practice and the court system, recommended that law schools invite practitioners to teach advanced courses in their areas of practice to enable students to be exposed to models of excellence in practice as well as to receive instruction in specialized areas of the law. MacCrate Report, supra at 245-246. ACREL has established a new committee to assist members in teaching by developing teaching materials to complement traditional casebooks and by linking interested members with interested schools.
The transactional nature of real estate practice presents an excellent opportunity to examine alternative dispute resolution techniques and lawyers’ professional responsibility. In introducing students to negotiation and mediation problems, the author is helped immeasurably by an article written by the late Prof. Curtis J. Berger, Hard Leases Make Bad Law, 74 Colum. L. Rev. 791 (1974), and by a series of articles by Emanuel Halper, Can You Find A Fair Lease?, 14 Real Est. L.J. 99 (1985); Magic Words, 27 Real Est. Rev., Summer 1997, at 86; and Lawyers Doing Battle, supra.
Professor Berger’s article was based on a study of 103 reported landlord-tenant cases in New York courts from 1970 to 1972, about evenly divided between commercial and residential tenancies, involving standard form printed leases heavily stacked in favor of the landlord. He wrote that he was not surprised to find that judges were reluctant to give landlords what they asked for and, in most cases, literally deserved. In concluding his study he posed a question concerning what he calls the issue of “contract integrity”—the integrity of the paper that seals the bargain. “Here I use ‘integrity’ in a dual sense. I refer both to the honesty or fairness of the contract and to its even-handed completeness.” Berger, supra, at 814. He distinguished between contract integrity and contract unconscionability, arguing that they occupied the “opposing ends of the spectrum.” Id. at 815. The doctrine of unconscionability that is studied in the first semester of contracts law represents to him “a doctrine of last resort,” so that “virtually any contract that does not shock the conscience is presumptively valid.” Id. He then concludes by suggesting that the legal system “should espouse a higher norm. . . . Each party who signs an agreement should sense its truth and essential fairness and should believe that the paper fully states his rights and remedies, that it captures both parties’ understanding, that it conceals no hookers, and that it is understandable.” Id.
Emanuel Halper argues that lawyers negotiating and drafting real estate contracts should emphasize and strive for fair agreements. While admitting that he has drafted one-sided leases, he stresses that “[t]he main advantage of drafting a fair lease is that you might get it signed.” Halper, Can You Find a Fair Lease? supra, at 121. He also argues that “real estate documents are much too hard to read” and recommends that lawyers should pay more attention to “[w]riting understandable documents. . . .” Halper, Magic Words, supra, at 86, 87.
Commitment to the Community
As Roscoe Pound’s definition of a profession makes clear, public service is an essential attribute. For lawyers, public service traditionally has taken the form of service in government, in the organized bar, in the not-for-profit and civic sector, and service to individuals who are unable to pay normal legal fees. In recent years, the legal services and public defender movements have generated substantial public support, both financial and political, for free legal services to indigent persons.
This pro bono movement is supported by Model Rule 6.1, which was adopted by the ABA House of Delegates in February 1993. Rule 6.1 is aspirational in nature, recommending that lawyers render at least 50 hours of pro bono service per year. A “substantial majority” of the 50 hours should be devoted to rendering free legal services to the poor through representation of either individuals or groups designed primarily to meet the needs of low-income persons. A proposed addition to Rule 6.1 states: “Every lawyer has a professional responsibility to provide legal services to those unable to pay.” See Carl A. Pierce & Laurie D. Zelon, Pro Bono Services, 87 A.B.A. J. 64 (2001).
For the most part, the organized pro bono movement has emphasized representation of individuals and groups in adversarial situations. Fear of conflicts of interest and dilution of such services has kept some legal services programs from providing transactional services. Because real estate law practice primarily is transactional, the emphasis on adversarial representation has caused many real estate practitioners to feel left out of the pro bono movement.
The ABA Section of Real Property, Probate and Trust Law is taking steps to offer specific opportunities for pro bono transactional service. A subcommittee on Community Responsive Pro Bono Practice of the Committee on Economics, Technology and Practice Methods has been formed to facilitate pro bono practice for real estate lawyers. Its initial project is recruiting lawyers to volunteer transactional services to local affiliates of Habitat for Humanity. Four areas of pro bono service are suggested: assisting local affiliates with the purchase of land, title clearance, conveyance documents and closings; participating on a local affiliate committee or board of directors; providing educational programs and materials for the leaders of local affiliates regarding real estate issues; and contributing to the organization’s effort to establish national standard mortgage documents and the review of the proposed documents in consideration of state laws. As of March 2001 about 300 lawyers were volunteering at local affiliates in all 50 states.
Another community service opportunity for real estate lawyers is in response to opposition to affordable housing/community economic development typified by the attitude in many communities of “not in my back yard” (NIMBY). Two of the direct causes of homelessness are the lack of decent housing that is affordable to low-income families and the shortage of living wage jobs that are accessible to such families. The first of these causes is attributable, at least in part, to the attitude of the neighborhoods in which such housing and economic development activities could be located. Proposals for affordable housing for low-income families in many areas have encountered the NIMBY phenomenon: “I understand that affordable housing is needed, but do not put it in my backyard.” This attitude is manifested in large lot zoning and other restrictive local land use regulatory practices. Lawyers who advise local governments, lenders and housing providers can play an important role in efforts to change local attitudes about affordable housing.
In addition, an essential component of local affordable housing and community economic development activities is transactional. In many respects, such activities mirror traditional real estate law practice. They offer excellent pro bono service opportunities, particularly in the organizational and approval stages. As a bonus, such projects usually are fee-generating at the development stage.
Concern about the state of the legal profession is very real these days. The explosion of books, articles, commentaries and speeches on the topic makes that point eloquently. Professionalism for a real estate lawyer includes activities that help develop the art of friendship: caring for others, good listening, truthfulness, loyalty, respect for the other person’s point of view and ability “to determine the right thing to do,” in addition to skills in drafting, negotiating and knowledge of the law that are geared to the transactional nature of the practice of real estate law.
The ideals of professionalism must be reconciled with the business realities of the modern law firm. A three-fold program of mentoring, teaching and pro bono service of the kind described above, coupled with applications of the values associated with true friendship to the lawyer-client relationship and principles of civility, can be an effective formula for achieving the ideals of the legal profession within a complex business environment.
Peter W. Salsich Jr. is McDonnell Professor of Justice in American Society, Saint Louis University School of Law. A longer version of this article was presented at the Annual Meeting of the American College of Real Estate Lawyers in Boston, Massachusetts, in October 2000 and will be published in the Fall 2001 issue of the Real Property, Probate and Trust Journal.