Bar Journal - June 1, 1999
Ethics, Professionalism & the Real World
By: Attorney Rolf E. Goodwin
The Professional Conduct Committee. The Ethics Committee. And now the Professionalism Committee. Gets confusing, doesn't it?
The thrust of this article is to suggest that we temper our zeal for virtue with a healthy dose of realism. To get to that thesis, however, it might be helpful to remember why we have all these bodies with such similar names. Their functions are, in fact, quite distinct.
The Professional Conduct Committee is appointed by the New Hampshire Supreme Court. Its function, in essence, is to act as the state's disciplinary body for lawyers, reviewing complaints of alleged violations of the Rules of Professional Conduct, and, when the complaints indicate that violations have occurred, recommending sanctions, up to and including disbarment, for adoption by the Supreme Court.
The Ethics Committee is a committee of the New Hampshire Bar Association. It has two functions: (a) providing opinions and publishing articles on specific applications of the Rules of Professional Conduct, and (b) reviewing or proposing changes to the Rules for the Bar Association's Board of Governors and the Supreme Court Advisory Committee on Rules. The roles of the Professional Conduct and Ethics committees are thus complementary: to oversimplify, the Ethics Committee seeks to help lawyers to comply with the Rules, and the Professional Conduct Committee disciplines lawyers who fail to comply with the Rules.
The Professionalism Committee differs from the other two committees in that it is not concerned with the Rules of Professional Conduct at all. To understand this apparently alarming characterization, please note that the Rules of Professional Conduct are, intentionally, minimum requirements for lawyer conduct. Lawyers are not allowed to do less. Some segments of the Bar have increasingly wished that we, as a profession, could agree on standards indicating reasonable expectations and general aspirations we might expect of each other. Said differently, we need to be able to discuss and set standards and goals outside the coercive context of discipline.
Not the least important of the virtues of this approach, in my opinion, is that it should help to dissipate the tendency to try to load such expectations and aspirations into the Rules of Professional Conduct, where, as the above makes clear, they do not belong. Our Supreme Court has, so far, sensibly resisted the national movement, driven primarily by the American Bar Association, to confuse the Rules - the "thou shalt nots" - with mandates to "do good things," such as practicing non-discrimination against protected classes or providing pro bono representation to the indigent. By characterizing Professionalism as the edifice built above and beyond the necessary foundation of the Rules of Professional Conduct, we may, I hope, shift the discussion to one aimed at achieving our worthy goals in the context of what the mainstream of our membership thinks we should be doing, removed from the threat, implied or real, of losing our individual licenses if we fail to go along.
To give this discussion a chance at succeeding, I will argue, we must agree that the Professionalism discussion is not an occasion for lofty certitude. The problems the Professionalism discussion seeks to address are in fact complex and ambiguous. We need to be open with each other in admitting that these problems can be difficult to resolve, and that context matters greatly. We may well need a new model of how we provide mentoring to each other, as we seek to help each other help ourselves to be better, more Professional, lawyers. I have no specific answers to propose, only a plea that we use this Professionalism discussion as an opportunity to be respectful of the burdens each of us bears each day in trying to determine how best to balance the competing demands of justice. This article will review some of those burdens and the traps they set for us.
THE ENTITLEMENT TRAP
It's just great to be a lawyer. If you don't believe me, check out almost any current TV show or movie or novel. The world is ceaselessly bombarded with the real life of lawyers. Big money. Lots of exciting, life-and-death cases that are always won in an hour or so. Fancy cars. Abundant great sex. It is no wonder people hate us, when there is so much to envy. The real wonder is that we can handle the sheer exhaustion our media lives must bring on. Fortunately, there are a few things which media lawyers never have to take on - such as generating work, doing real work, getting paid, and worrying about Professionalism. It certainly saves a lot of time and energy.
The media world is as laughable as it is pervasive. But, I submit, it is inflicting an enormous cost on our profession. We have had our expectations warped. I see a greater and greater sense of entitlement among lawyers. With a law degree, I am entitled to a fancy car. To a fancy house. To a fancy lifestyle. The awful truth, of course, is that for all but a few true flukes, it takes a lawyer years of hard work, long hours and careful nurturing of clients to reach the point of a comfortable lifestyle. That has always been so, but it is particularly galling in a time when we see friends in the high tech world making a lot more money than we do (never mind that the other cliché is that people in high tech lead lives that make Dilbert's seem satisfying). It is particularly galling in a time when our media image has accustomed us to different expectations than "mere" comfort.
To make the entitlement problem really deadly, we have added in another poison - endlessly available debt financing. Credit cards, equity lines, and cheap mortgages just make it so very tempting to have it all - now. It is not usually a trap I see lawyers walking into deliberately. One scenario I see with increasing frequency is of the new lawyer, starting out, who falls into what most people would consider to be a decent income. With good intentions, the new, often unmarried lawyer keeps up on the education loan payments, and finances the car, the condo, the clothes and the vacations such a salary can support. Then the lawyer gets married. With two salaries, you can finance two nicer cars, the first house, and the beginnings of a splashy lifestyle. Then come the kids. Then comes the realization that it just isn't going to work to have both parents continue to work crazy hours as needed. Expenses are up, and soon income is down - and the debt crunch begins in earnest. Retirement funds, college savings? Forget it! We have to pay for now!
And this scenario is really the good news. Notice that our hypothetical lawyer started out with a good income - that is not all that typical. Our hypothetical lawyer did not need to shell out for computer systems, office space, library and other supplies, never mind the costs of trying to obtain some visibility in the community. Our hypothetical lawyer did not invest hours and hours in clients who didn't pay. For most lawyers, getting started is a risky, expensive business. Not only does that feed a sense of entitlement, but the erratic cash flow experienced by most lawyers contributes to a spend-it-when-you-can mentality that can be hard to shake.
One of the more entrenched characteristics of lawyers is our willingness to believe that everybody else is doing a lot better than we are. In law firms, you can rely on the fact that the newer associates are quite certain that the partners are loaded. Social and professional gatherings of lawyers are full of stories about "the trip I just took" or "my new car." Thus does envy contribute to the entitlement trap? The appearance of making it matters more and more. And so the new car is leased, and another credit card is added.
Last fall, I experienced one of the most telling moments in my years of working with lawyers. I was in a commercial loan closing with a banker, another lawyer from a large firm, and several sophisticated business people. At one point, the other lawyer left the room while I caught up with the paper shuffle. After a while, I tuned in to the story the banker was telling. He was telling the business people that he had just refinanced the other lawyer's law firm. He spoke admiringly of the financial savvy of the partners in the firm, who had provided personal financial statements along with their guarantees. Why, the banker related, these people really know how to set things up. They must have all kinds of trusts and things. He could tell, because their financial statements looked just like those of kids just starting out. Not much in the way of savings or investments, leased cars, a 95% mortgage, and lots of credit card debt. The business people nodded enviously. I pretended not to hear. I just couldn't shake from my mind the image of Clark Clifford, after a rich and distinguished career, telling an interviewer that he got stuck in a notably dodgy set of dealings because he was not going to be like the other good lawyers he knew, all of whom died poor.
The entitlement trap is not simply sad. It is a prime contributor to ethical lapses by lawyers. We are all tired of hearing about the late Judge Fairbanks, but the Judge was merely an extreme manifestation of the temptations a lawyer can fall into. Lawyers are simply less likely to harm their clients when their own finances are in order. And a degree of economic security is clearly a tremendous booster for Professionalism.
Understanding its importance, I think that we can and should try to do something about the entitlement trap. Law schools can and should do much more to prepare new lawyers for the hard world ahead While that will help, it is even more important, I think, to recognize that the entitlement trap, as Clark Clifford's story illustrates, is hardly limited to new lawyers. To suggest that it is a "generational thing" is sentimental bunk. We need to provide practical, accessible financial planning advice (not insurance or mutual funds sales pitches!). We need to help lawyers gain a realistic set of expectations of the impact of choices of workplaces and work styles, of the impacts of debt and of savings - in short, the tried-and-true virtues of establishing a set of goals and figuring out how to get there.
One of the most promising techniques for fighting the entitlement trap is likely the most radical: we could try being more honest about our own economic circumstances. Once we get over the depression-inducing realization that everyone else puts on their financial pants one leg at a time, I expect more of us would become more realistic about our expectations of entitlement. I would hope that our discussions on promoting Professionalism will include an exploration of how to promote helping lawyers to understand their economic situation and prospects.
THE IDEALISM TRAP
The flip side of the entitlement trap is the idealism trap - the one that says that we lawyers, being Professionals, should not be motivated by material considerations. Of course we will be; of course, we should be. To be sure, lawyers have a long and honorable tradition of sacrificing our short-term, and sometimes even long-term, well-being for our clients. The Rules of Professional Conduct can, to a great extent, be summarized as consisting or a series of mandates against taking unfair advantage of our position. I do not mean for one second to downplay the centrality of these mandates in validating the very existence of our profession. But I do become concerned, however, when I hear lawyers say that Professionalism means making decisions without regard to the monetary consequences. I hope that our clients will not hire us if we are that irrational. After all, most legal work (other than criminal law) is primarily concerned with money and property, even if we do not always want to acknowledge this fact.
My case for moderating our idealism comes down to three precepts. For one thing, our clients need us to be around tomorrow as well as today. For another, I fear that the Professionalism discussion will lose its audience if it goes off to idealistic extremes. Most important, we should recognize that money has a positive role to play in promoting Professionalism.
Negatively put, a lawyer who is too hungry for too long is not likely to be a good lawyer, and may find the temptations of being a bad lawyer to be irresistible. Positively put, a decent income allows more resources to be applied to the practice of law, a better attitude, and greatly facilitates the luxury of idealistic behavior.
THE WORK TRAP
One of the accepted truths (whether true or not...) of our time is that it is increasingly hard to make a living as a lawyer. It is undeniable that our numbers are far greater than before. The common perception is that we are forced to spend more time marketing, more billable time, and more time on collections than lawyers did in the past. The causes of this phenomenon are beyond the scope of this article; frequently mentioned contributors, in addition to increased competition, include newly essential capital costs for information technology, and the rising costs of support staff.
As there are a lot more lawyers, there is also a lot more law than there once was. Although I think most New Hampshire lawyers enjoy the image of our profession as one of able generalists, the days of the general practitioner have receded considerably. Specialization has its own time costs, both on the specialists, and on the generalists who must analyze a much greater body of law in each case they take on.
In addition, the steady economic rationalization of the legal profession has meant that, to an alarming extent, training and advising have dried up. Under pressure of scrutinized budgets and billable hour pressures, mentoring, in and out of firms and offices, has become a luxury enjoyed less and less, and by fewer and fewer lawyers.
It all adds up to a problem of maintaining a healthy perspective, which can be greatly helped by balancing the influences on each lawyer. If a lawyer's influences are tilted in favor of media images of toughness, glibness, and winning, and if the demands of clients are not leavened with the influence of other lawyers, then there cannot be any surprise if civility and competence begin to dry up.
Rather than sentimentally pining for the "good old days" (when, let us remember, lawyers were an inward-looking white male club and conflicts of interest were ignored much more frequently than today), let us acknowledge that they are gone. I think that this suggests that we need to work on providing substitutes for some of the things that really were good about the good old days. Mentoring would be high on anyone's list.
There are quite a few resources available for the lawyer who reaches out. The New Lawyers Committee of the New Hampshire Bar Association has been active and effective in promoting effective mentoring. Continuing legal education is but one of a host of methods available for becoming a better lawyer. My concern is that our present set of resources is only beginning to shift from being a supplement to the training and advising that were once primarily provided formally within firms and offices and informally at the lawyer's lounge, to becoming a primary means of making this training and advising happen. Perhaps every lawyer should have access to a mentoring program that includes legal training and advising. Such a program should not be mandatory, if it is to work. I do not have any proposal for what it should look like. But the Professionalism discussion allows us an opportunity to explore concrete methods of dealing with the work trap.
THE CLIENT EXPECTATION TRAP
In addition to the damage we are doing to ourselves by falling for the media image of lawyers, there is the damage being done by the peculiar expectations the public is developing. Like most lawyers, I spend more time than I care to think about telling prospective clients that they do not have a worthwhile case. Usually, the would-be client has a real problem. But sometimes it is not a problem which for which the legal system can provide a remedy. Sometimes the client is looking for a remedy which goes beyond what is fair and what is just. There have always been litigious people in the world; the issue now seems to be an increasing sense of entitlement among the public, added to a sense that, by hiring a lawyer, you can get whatever you want. We have all found ourselves in matters where opposing counsel is setting up the opposing party for disappointment. By then, there is seldom a gentle way of helping the other side out of the mess they are in.
I would like to see some of our Professionalism discussion include a raising of lawyer sensitivity in this area. We as lawyers often serve would-be clients best by telling them that the cost - emotionally and physically as well as financially - of our services outweighs the likely benefit we can produce. We as lawyers often serve our clients best by telling them that the would-be client is asking us to do something inappropriate. It is a hard lesson to learn. The pressure from the would-be client is easier to withstand if we keep conscious of the fact that other lawyers frequently face the same pressures. An important part of mentoring is learning, and being reminded, to say no. I make no proposal for how we ought to go about doing this more effectively. It would be worth discussing.
THE ADVOCACY TRAP
One of the major complaints giving rise to the Professionalism movement is that lawyers are less civil than we once were. If true, the reasons for this are complex. I suspect that all of the elements discussed in this article, and more, feed into this problem. My concern is that we need to be honest in our discussions about furthering Professionalism to recognize that there is something of an inherent conflict between our roles as advocates and some of the claims of civility.
The Rules of Professional Conduct amply recognize the tension between justice and advocacy. Our system is built on the concept that competing advocates will enable justice to be achieved far more effectively than will any pretense at an impartial search for truth. Yet, in order for advocacy to help achieve justice, the advocates must be bound by certain rules of fairness and candor. I think that the tension is best shown by Rule 1.6, which says, in effect, that a lawyer will never get in trouble for ratting on a client, unless the lawyer is reasonably sure that ratting is necessary to prevent the client from causing future death or bodily harm, or to defend the lawyer against non-payment or a claim of malpractice. I can think of few rules which are harder for the public to accept, especially as Rule 1.6 appears to raise claims for legal fees to a higher priority than the most basic forms of justice. Consider this: if your client tells you that the client has killed someone, so that you know that an innocent third party has been sentenced to death for the murder, Rule 1.6 requires you to keep your silence, even though speaking up would allow you to save an innocent life. I have always found it hard to believe that an ethical lawyer would not violate this rule if the claims of justice were strong enough. But the rule is the rule, good arguments can be made about the inherent difficulties raised by the competing claims of confidentiality, and many jurisdictions have enforced Rule 1.6 strictly.
The tension between advocacy and civility is similar. As a general proposition, I think that most lawyers find that courtesy, helpfulness, and respectfulness serve them better most of the time than do rudeness and obstructive ness. But if the other side is hurting your client, or if the system fails your client, your duty may include stubbornness, aggressiveness, and just generally getting tough.
I do not mean to encourage incivility, but I hope that the Professionalism discussion will not pretend that civility is an absolute goal. We need to be honest about the tension between justice and advocacy. We need to be honest about the tension between civility and advocacy. We can best serve the cause of justice, and ourselves, if we talk frankly about these tensions, if we talk about how to recognize the circumstances in which the tensions arise, and if we talk about how best to reconcile these tensions.
WE ARE NOT ALONE
The new emphasis on Professionalism arises in part because of a perception that lawyers are increasingly perceived as having lost something important. Being an inward-looking bunch, we tend to ignore the fact that we are hardly alone. Consider this:
"And they feel they have plenty to complain about: not least, the changes that managed care has brought to American medical practice. To begin with, managed-care companies think there are too many doctors. America has 280 doctors per 100,000 people, two-thirds more than Britain....[o]fficial projections suggest that, to cut costs, their ranks be culled by two-fifths in the next decade.
Where doctors are not culled, health maintenance organizations (HMOs) are trying to control their work. They have introduced a variety of measures: regular performance reviews; guidelines for standard practice; money incentives to reduce 'unnecessary' procedures; mandatory authorization before patients are sent on to further treatment; and swift ending of contracts if doctors fail to live up to the mark.
Not surprisingly, doctors dislike this close accounting, saying that it lowers the quality of their work...roughly 40% of doctors complained they had less control in medical decision-making and less time to spend with patients than three years earlier...
Doctors also complain that their wallets are stretched...some specialists have seen their earnings more than halved over the past decade...
Although two-thirds of them still work alone or with a single partner...American doctors will increasingly gather into large group practices and integrated medical centres..."1
Sound familiar? But surely it is better in the managerial ranks of business? Try this:
"Certainly, managers feel sorry for themselves...and they are not the only ones. Consultants talk about companies producing burnt-out 'human cinders'...Why? Four main reasons:
- With most companies having thinned the layers of corporate bureaucracy, most managers work longer hours... An investment bank will these days ask three managers to do the work that five would have done in the past, and pay them more...Plenty of studies have shown that most would willingly give up some pay for shorter hours...
- Thanks to flatter management structures, the old reliable ladder of career advancement has gone. Careers tend to proceed in great jumps. Those who are left out feel they are going nowhere. Some of those who are rapidly promoted flourish; others arrive at their new position unprepared.
- Above all, there is the danger of losing your job... Even at the top, job security is not what it used to be...
The main loss may be to corporate loyalty. Rather than 'belonging' to companies, managers increasingly see themselves as mercenaries... But most companies, even in Silicon Valley, would like to build longer-term competitive advantages. That means emphasizing things such as loyalty, trust and shared values."2
"Loyalty, trust and shared values." Isn't that what we, as a profession, are mourning? The point of the above extracts is that we are hardly alone in our malaise. And so I suggest that we be careful in assuming that our Professionalism problem should be addressed as if we are uniquely situated. In many ways, we are not.
Like doctors and executives (and plenty of other privileged classes, as well), we can make a good argument that our jobs have become more time-consuming and challeng ing in recent years, so that we must run harder and longer just to stand still. Like doctors and managers, we are subject to criticism that, despite this, we ought to be less money-driven, and give more and more of our time and resources to those who cannot afford our services. But unlike doctors and managers, who are wise enough to blame others, we have developed a tendency to guaranty self-inflicted frustration and a sense of failure by blaming ourselves for not solving the problems of the world. I submit that this tendency will heighten our problems of Professionalism rather than address them.
Few topics are more emotionally fraught for our profession than the gap between the perceived need for legal services and our ability to meet it. We compete fiercely for well-paying business. Like it our not (and most lawyers are sufficiently idealistic that we truly hate to admit this), money is the means by which legal services are rationed. In my experience, there are only three types of legal services funded in our society: a) legal services for which clients or other employers of lawyers can and do chose to pay; b) legal services for which defendants pay (e.g. contingent fee cases); and c) legal services for which society has decided to allocate funds to overcome the market forces controlling a) and b) (e.g. government programs). That leaves without legal services a lot of potential clients, notably in the (often overlapping) areas of domestic relations and poverty law. The problem is that we have lately taken to blaming ourselves as a profession for this shortfall, and, worse, moving to make mandatory our pro bono efforts to fill it. I submit that, by jumping from our desire to solve the problem, to a decision that the answer will necessarily spring from exacerbating the demands on our time and finances, we are ignoring the lessons of other professions.
By this I do not mean to suggest for one second that the problem of under representation of the poor is not real. "Nationwide studies indicate that organized legal aid programs' current funding meets only fifteen to twenty percent of the legal needs of the poor... Cost was one of the biggest factors contributing to the failure of low and moderate-income individuals to seek resolution of their legal troubles through the civil justice system."3 Nor do I wish to suggest for one second that pro bono legal services are anything other than a source of pride to our profession, to be encouraged and recognized. What I do wish to suggest is that we should stop acting as if our failure to fill the pro bono shortfall demonstrates a failure of legal Professionalism. We as a profession would benefit from determining which problems which really are uniquely ours, and from striving to ensure that the burden of solving problems not uniquely ours is shared more broadly by the rest of the public.
For better or for worse (depending on your political philosophy), American society has decided that most types of legal services simply are not essential. The Constitution dictates that criminal defendants are entitled to counsel; it is unlikely that we will ever see an elimination of public funding of public defenders. But society has increasingly backed away from funding other forms of legal aid. It is not as if our profession has not raised the alarm - our profession's support for funding of the Legal Services Corporation has been vociferous, but has merely slowed the rate of decline. Uniquely, our profession's response to declining public support in the face of perceived increasing need has been to try to take on the whole problem ourselves, as our sole responsibility. To an amazing degree, reality does not enter the debate. While the debate over mandatory pro bono is interesting, it is, to a great degree, irrelevant. "As several commentators have pointed out, the implementation of mandatory pro bono programs would not provide adequate relief to the growing unmet legal needs of the poor. Estimates show that approximately 50.5 million legal problems have been reported but not taken to the civil justice system. Based on this number, every attorney who is in private practice would have to take eighty-five cases per year to satisfy the unmet legal needs of the poor. Obviously, current hourly proposals for mandatory pro bono programs would not even come close to satisfying the unmet legal needs of the poor."4
I do not propose an answer for this problem. The ideologues of the New Right would have us believe that society will be better off if we leave the poor to the mercies of the invisible hand. The idealists of the Old Left tell us that we have an obligation to place a finger in the dike, even as the holes multiply and the water level continues to rise. For myself, I think that the idealists have the higher (if wetter) ground: while our pro bono efforts may not solve the legal problems of the poor as a class, they can make a big difference to the individual people we do help. The larger point is that we should not take our failure to solve the legal problems of the poor as a class, and flagellate ourselves for a failure of Professionalism. It just isn't so. And when we are faced with rising numbers of lawyers who are struggling, economically and professionally, we should not flagellate ourselves for a failure of Professionalism if participation rates in the Bar's pro bono programs are decreasing, as we are told they are. Being a licensed profession does not saddle us with sole responsibility for curing the ills and unwisdom of society. At one extreme of the licensed professions, hospitals are subsidized in treating the poor by being granted tax-exempt status. At another, it is worth remembering that hairdressers are licensed, too. Ultimately, the licensure argument leads nowhere. I fear that treating the declining participation rates in the Bar's pro bono programs as a general failure of Professionalism is more likely than not to create resentment and to promote alienation of lawyers. I suggest we follow a different path.
The books I read about child-raising, about personnel management, and about negotiation tactics all have something in common. The more persuasive books say that positive reinforcement works better than negative. They say that the carrot works more reliably than the stick. They say you catch more flies with honey than with a swatter.
I submit that the same approach would do more to uplift Professionalism than will the endless flagellation some seem to find so irresistible. We know how to do it right. Let us celebrate Professionalism where it exists. I am quite certain we will find that there is plenty to celebrate. The New Hampshire Bar News is off to a good start with its pro bono "honor roll". Let us build from there, and celebrate Professionalism as exemplified by those who chose alternate routes, serving charities, filling uncompensated and under compensated posts in government and in nonprofit organizations. Let us show our new members by constant example that service to society is not something which they will be punished for not doing, but rather something which they will be cherished for doing.
I propose that the Professionalism discussion will be most useful if we admit that the problem of under representation is not solely, or even primarily, our fault. We are more likely to be helpful if we stop treating it as one of our profession's dirty little secrets. While we are at it, let us learn to let the public in on our clean little secrets as well.
THE PROFESSIONALISM DISCUSSION OPPORTUNITY
The creation of the discussion about Professionalism, in summary, provides a unique opportunity. If we see the Professionalism discussion as an opportunity to pontificate, if we see the Professionalism discussion as a time to beat up on lawyers, and if we see the Professionalism discussion as a time to resurrect a past that lives mostly in a golden haze, then the Professionalism discussion will be worse than a waste of time. It will hurt our profession, our clients, and the cause of justice.
If, on the other hand, we see the Professionalism discussion as a chance to recognize the conflicting forces at work on us, if we see the Professionalism discussion as a chance to admit that ours is often a difficult path for which we need guidance and support, and if we see the Professionalism discussion as an ongoing process of trying to find the best means of providing an effective means of recognizing those conflicting forces and providing that guidance and support, then we will build a constructive mechanism which will greatly improve our profession, help our clients, and advance the cause of justice. Let us be honest and practical, then, as we seek to do good. Let us seize the Professionalism discussion as an opportunity, in a word, to be humble.
The Economist, February 6, 1999, page 31.
The Economist, January 30, 1999, page 55.
Comment: "Lawyers Do It For Free?: An Examination of Mandatory Pro Bono", 29 Tex. Tech L. Rev. 1141, 1998, 1144-1145.
Id. at 1188.
Attorney Rolf Goodwin is Chair of the Ethics Committee of the New Hampshire Bar Association. He served on the Special Committee for Revision of the Code of Professional Conduct. He is a director with McLane, Graf, Raulerson & Middleton P.A. in Nashua, New Hampshire.