Professionalism is a much discussed subject these days, and rightfully so because it is our foundational principle. I recognize that the legal profession is now different than it was when I began to practice in 1965—in some ways better, in some more challenging. Yet, the essence of professionalism remains the same. As the preamble to the American Bar Association’s Model Rules of Professional Conduct correctly informs, “[t]he Rules of Professional Conduct are rules of reason.” And not surprisingly, this old fogey has some unsolicited, friendly, random advice about professionalism.
People like to have a good laugh at our expense. I’ll admit some lawyer jokes are pretty humorous, but for the most part, they are grossly exaggerated and unwarranted. I like lawyers, loved being a trial lawyer. I love being a trial judge. I appreciate that my days now consist of working with and hearing legal arguments from well-prepared, competent, and highly professional lawyers. The law is a noble profession, the best, comprising some of the most civic-minded, interesting, and generous people I know. But professionalism takes commitment. In discussing our profession, and that commitment, a theme to which I frequently refer is “the deal.” Those of you who studied political philosophy may be familiar with the more formal term, the “social contract.” It’s the same concept.
As in any legal contract, in the social contract, there are benefits and obligations for both parties—“the deal.” In discussing the social contract created by our American form of government, a contract to which each of us is a party, John Gardner, a member of Lyndon Johnson’s cabinet, provided a pithy description of democracy and its special benefits and obligations: “Liberty, and duty. Freedom, and responsibility. That’s the deal.” So along with the benefits of liberty and freedom that our constitutional system bestows on each citizen of our great country come the obligations of duty and responsibility. In other words, freedom isn’t free! For example, to preserve the right to a jury trial by one’s peers, citizens have a duty to serve on juries. In exchange for the right to vote, we have a duty to be informed voters.
Borrowing from Gardner’s concept of “the deal,” Lee Schulman of the Carnegie Foundation defines a similar social contract—the contract that the legal profession has with society: “Autonomy, and Obligation. Work, and Integrity. That’s the deal.” In other words—for lawyers, there is no free lunch! This “deal” is the “social trusteeship” to which the legal profession and society have agreed. Lawyers are granted a great degree of autonomy and the exclusive right to practice law and self-govern the practice of law. In return, we lawyers and judges are obligated to maintain a corresponding loyalty to society and to protect the integrity of the legal process. We alone, as advocates, arbiters of legal disputes, and authors of our professional standards, are assigned the task of protecting our Constitution and the high principles it embodies. We are all a party to that social contract, “the deal.” Each of us is professionally and morally obligated as an advocate for our clients, and as an officer of the court, to strive to uphold the very honor and dignity of our profession, thereby perpetuating society’s confidence in our profession. And, not insignificantly, to preserve our privilege of self-governance.
So what, then, ensures that we uphold our end of “the deal”? To answer this question, I turn you to an ancient Chinese proverb: “Laws control the lesser man. Moral conduct controls the greater one.” What does that mean? As applied to us lawyers and judges, the controlling laws are our ethical rules, limitations on our jurisdiction, and punitive authority. These “laws” establish the minimum requirements for the lesser man—the lesser lawyer, the lesser judge.
Professionalism, civility, conscientiousness, commitment, and generosity—these are some of the qualities that constitute our moral conduct. They are the higher plains to which all of us should, and must, aspire if we are to fulfill our part of “the deal.” These aspirational “controls,” which are embodied in every lawyer’s oath, aren’t imposed by the American Bar Association, state bar associations, or the legislatures, but rather, by ourselves, individually and as a group. Each of us should govern our professional life in accordance with these principles and, above all, strive to be the greater lawyer, not merely the lesser one. In that vein, we are all continuously challenged to be the greater lawyer, the greater judge, not the lesser one.
Practicing at the highest level of professionalism helps us meet that challenge. How do we do that? I have boiled down my personal concept of professionalism into what I call “the five Cs”: competence, civility, compensation, contribution, and contentment. Please note that “civil war” is not, and never will be, one of the “Cs” of professionalism.
There is a good reason why competence is the first rule of the Model Rules of Professional Conduct. Rule 1.1: “A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation.” Pretty simple, pretty clear, pretty logical; and no exceptions. Yet, I have, and I suspect you have, witnessed how a lawyer’s incompetence has led to unprofessional, even unethical transgressions. These are all too often committed in a desperate effort, an unsuccessful effort, to overcome one’s inadequate legal skills, preparation, work ethic, or confidence. Fortunately, in my experience, these are the exceptions rather than the rule. In spite of all those clever lawyer jokes, clients and society in general expect and deserve our profession’s most competent, skillful, and effective services. And each of us is obligated to do our part to fulfill that expectation. I am confident that the choir embraces and is committed to this basic principle. Yet, let me preach one bit of friendly, random advice that will serve you well. While competency is the first rule of professional responsibility, the first rule of competency is “Know what you don’t know”; the second, “Don’t do what you don’t know”; and the third, “If you do what you don’t know, get to know a competent malpractice or bar grievance defense attorney!”
We judges know that you lawyers gossip about us. You probably also know that your judges talk about you. Your reputation, good or not, precedes you in court. Let me give an example. Some years ago, we judges were having an informal lunch in our conference room. One of our colleagues walked in obviously frustrated. When asked what the problem was, our colleague explained that he was in the “trial from hell.” After disclosing the type of case, and without disclosing the attorneys’ names, he characterized the plaintiff’s attorney as so incompetent that one couldn’t believe anything that attorney said and that the defendant’s attorney was so devious that one couldn’t believe anything that attorney said. Unsurprisingly, we all knew who those two attorneys were from our experiences and their reputations. You do not want to be the unprofessional subject of our luncheon gossip!
Speaking of gossip, and as friendly advice, don’t gossip about your clients and their cases in public. I have noticed that this unprofessional behavior seems to be an unwelcome, growing trend—lawyers talking openly to others about matters that, as advocates and counselors, we are ethically bound to keep confidential.
Civility is certainly that aspect of professionalism most discussed by and about our profession—including in this edition of Litigation—probably with good reason. What is civility in the legal context? Let’s begin with a generally accepted summary of the basic principles for civil conduct among trial lawyers, as reflected in excerpts from the preamble to the Florida Guidelines for Professional Conduct:
1. A lawyer is both an officer of the court and an advocate. As such, the lawyer always should strive to uphold the honor and dignity of the profession, avoid disorder and disruption in the courtroom, and maintain a respectful attitude toward the court. 2. A lawyer’s word (whether orally or in writing) should be his or her bond. . . . 4. A lawyer should be courteous and civil in all professional dealings with other persons. Lawyers should act in a civil manner regardless of any ill feelings that their clients may have toward others. Lawyers can disagree without being disagreeable. Effective and zealous representation does not require antagonistic or acrimonious behavior. Whether orally or in writing, and whether in or out of court, lawyers should avoid vulgar language, disparaging personal remarks, or acrimony toward other counsel, parties, or witnesses. . . . 6. When consistent with their clients’ interests, lawyers should cooperate with opposing counsel to avoid litigation and to resolve litigation that already has commenced. . . .
Because civility is so exhaustively discussed elsewhere, I don’t see the need to add much to that discussion here, except to add some personal observations. But first, civility is mandatory, not optional. The Florida Bar’s Creed of Professionalism, for example, clearly mandates: “I will abstain from all rude, disruptive, disrespectful, and abusive behavior and will at all times act with dignity, decency, and courtesy.” Please read that quote carefully. It contains no exceptions. It doesn’t say that your opponent’s incivility justifies yours. Otherwise, a tit-for-tat response will inevitably deteriorate into Hatfield versus McCoy–like ongoing, counterproductive, self-destructive civil warfare. When you find yourself in a personality clash with opposing counsel, my advice is to first look inward to objectively determine whether you are the problem, or at least part of it. I have seen all too many instances in court where lawyers get so caught up in the perceived righteousness of their cause or behavior that they fail to see their own shortcomings in civility. You need to step back, take a deep breath, and exercise objectivity and self-discipline. Admittedly, it’s not always easy, but you will benefit from that introspection and restraint. Also, ask yourself, how can civil warfare ever benefit your client, or enhance your reputation among your peers and the judges? The right answer will always be that it doesn’t. Civil conduct is good advocacy. Civil conduct fosters an atmosphere of mutual trust and respect, which in turn will be invaluable when you try to reason with opposing counsel in an attempt to resolve those inevitable scheduling issues or to settle your case. Then, of course, courtesy, good manners, is what your mother taught you. Remember, “Mother knows best.”
Now the personal part. While I well knew and tried to faithfully comply with the principles of civility, there were times when I, both as a trial lawyer and as a trial judge, crossed the civility line. But, upon reflection, I always, always deeply regretted doing so, felt bad, and tried to make amends. After all, we are all human. (Yes, even trial judges!) A sincere apology or an extended hand goes a long way in staving off civil warfare. Don’t let your ego get the better of you. While you can’t control the behavior of your opposing counsel (or the judge), you can always control yours. When faced with your opponent’s invitation to engage in uncivil warfare, my friendly advice is don’t take the bait. Otherwise, both of you will lose that war in the eyes of the judge and your peers.
When I was a brand-new lawyer, my first boss—and, throughout my career, my finest mentor—was Peter T. Fay. He was widely considered to be one of the most successful, most professional trial lawyers in Florida and later a heralded federal district court and then circuit court judge. We young associates would gather at Mr. Fay’s home, sitting in his living room, where he would patiently teach us how to be trial lawyers. By far the best CLE any of us ever had. His advice I most remember, and have tried to follow with varying degrees of success, was to “always take the high road” and that reasonably cooperating and stipulating with opposing counsel and treating them with great respect were not signs of weakness or insecurity, but rather signs of strength and confidence. Judge Fay’s mantra was simple and straightforward: “Play by the rules.” As a wonderful role model, Peter T. Fay always practiced what he preached, which is one of the reasons he was so successful and held in such high regard by his peers. That is an excellent lesson for all of us. I suspect that many in the choir have had the privilege of having a priceless mentor. Well, pay it forward—be a generous mentor. That’s how it works. Relatedly, I heartily advise younger lawyers to seek out and nurture a mentor-mentee relationship with an experienced attorney whom you admire, not only for the attorney’s legal talent but also for his or her professionalism.
Perhaps the very best civility standard is the Golden Rule, “Do unto others as you would have them do unto you.” Again, it’s as simple as that—common sense, common courtesy.
If you carefully look around at those trial lawyers who seem to be the most successful, you will note that they are usually the most professional. As an attorney, I intuitively believed that those trial lawyers who practiced at the highest level of professionalism also were the most effective advocates and gained the best results for their clients. Now, as a judge, objectively observing trial lawyers doing what trial lawyers do, I am thoroughly convinced that this is true. To those, hopefully very few, “bottom-liners,” who regrettably care only about “wins” and financial results, I advise this: Practicing with the highest level of professionalism, of civility, is not only the proper path to take; it is the surest path to a successful, prosperous career. After all, we all know or should know that honey gets more bees than vinegar. You want proof? My law clerks, some time ago, and initially unknown to me, created their “Worst Filing of the Month Award.” When I finally asked about the award, my clerks revealed that the court filings that generally won that “distinction” were the ones that were the most hostile toward the opposing party and its counsel. They explained that these award-winning filings were too full of overly dramatic, acrimonious, exaggerated, often irrelevant criticisms of the opposing party and its counsel, to ably and persuasively address the relevant legal issue. Therefore, the filings were unhelpful to resolving the issue. From the mouths of babes!
I firmly believe that serving others is an integral part of our job descriptions as lawyers and judges. Each of us must strive to be an example of what that great judge, Learned Hand, had in mind when he so eloquently challenged all lawyers and judges: “Each of us has a chance in our lives to make a difference, to be a designer and a builder.” Here, the legal profession outshines all other professions. For much of my legal career, I, like many of you, devoted my professional time and energy almost exclusively to my law practice. Yes, I enjoyed practicing law, and I had much to be thankful for, a very comfortable, contented life. But as I got older, and hopefully wiser, and began taking inventory of my life, I realized I was missing something. As I looked around at other lawyers and judges whom I admired, I saw in them a common thread—service to others, to the community, to worthy causes. Even though it took me a while to get there, I finally got it. We all, especially lawyers and judges, have a responsibility to others—and the more we are blessed, the greater our obligation—to make our world a better place for all. Lawyers and judges have the best jobs in the world, and because of that, we have the platform and the obligation to do good works, to positively touch lives, which others may not be able to do. That is a blessing, not a burden. I also came to realize how very fulfilling and satisfying it is to do even the most seemingly insignificant act of helping another or a worthy cause. I promise you that these will be your most rewarding experiences of all. So rewarding that they seem almost selfish. That’s why I call it “beneficent selfishness.” Beneficent because service to others makes our world a better place. Selfish because it makes you feel so darn good. And the most satisfying service to others is rendered without expectation of financial gain, awards, or accolades. Do yourself a huge favor, don’t let the opportunity for “beneficent selfishness” pass you by. It’s never too late. This brings me to the last C, contentment.
Contentment is in my view an important, though little discussed, aspect of professionalism. Contentment meaning satisfaction with the way you live your life, both personally and professionally, with your self-image. Practicing at the highest level of professionalism is a key factor in your emotional well-being and happiness. Think about it—as a lawyer, you spend the greatest part of your awake hours practicing law. If you are satisfied with and proud of the way in which you practice, if you are proud when you look at yourself in the mirror each morning, you are a long way along your path to real, honest contentment. On the other hand, unprofessional, uncivil behavior inevitably leads to discontentment and unhappiness, regardless of financial success. How do I know? Easy, just look around at the lawyers you know. Those who practice the right way, professionally, civilly, and generously, are the lawyers who seem to be so calm, so contented, so gratified—who really enjoy the practice of law. On the other hand, the unprofessional, the uncivil, the selfish, the unethical, those constantly engaged in unnecessary, unproductive civil warfare, always seem so angry, so frantic, so unhappy, especially unhappy with themselves. These unprofessional trial lawyers are the ones we hear complaining about the practice of law. Think about it. Which one are you? Which one do you want to be? To me, it’s an easy choice—there’s a lot to be said for happiness, for contentment.
