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Bar Journal - June 1, 1999

The Conclave on Professionalism

By:
 

Law is considered to be a "profession," but what does that mean? Does it mean that lawyers aspire and subscribe to a core set of values? If that once was true, is it true today? In an age where the market seems to be a defining societal force, has lawyering become just another business, driven by the bottom line?

Believing that law is a higher calling premised on an unstinting respect for the rule of law and devotion to improving our legal institutions, Bar President Randall F. Cooper has made professionalism a cornerstone of his administration. His goal is nothing less than to make professionalism the foundation for the new millennium. To that end, Randy announced at the 1998 summer bar meeting a Conclave on Professionalism to be held in the fall "at which we can begin the dialogue of identifying our traditions of professionalism, and the core values upon which they are based."

THE CONCLAVE

By the time of Randy's address to the summer bar, work on the Conclave was well under way. The organizing committee, through the fine efforts of the bar association staff, had gathered a vast body of literature not only on professionalism, but also on what other bar associations had done to promote professionalism.2 What quickly became apparent was the inordinate amount of time scholars and groups had spent trying to define professionalism. That search often proved divisive and stymied progress on the real work of improving professionalism. The reasons varied. They reflected differing conceptions of personal morality, differing roles of lawyers (litigator, negotiator, counselor, etc.), and differing practice settings. In reviewing these materials, the committee also sensed that by virtue of their training and experience, lawyers would seem to be the group most resistant to having a definition of professionalism - what it means to act professionally - imposed on them. For these reasons, and because discussion within the committee on the meaning of professionalism had been so rich, the committee decided that the Conclave should take up this question, rather than debate the pros and cons of a definition formulated by the committee. This decision, the committee believed, would have the added advantage of stimulating a broad and lively discussion at the Conclave. The committee would not be disappointed.

Equally apparent to the committee was the lack of information about the state of professionalism in New Hampshire. Was it worse, as many believed, than some golden bygone day? If so, what were the causes? This discussion led naturally to what the committee called the "impediments" to professionalism, which became the second organizing topic of the Conclave.

The third topic addressed at the Conclave followed logically from the second: what initiatives could we undertake to overcome the impediments and promote and enhance professionalism?

Franklin Pierce Law Center graciously agreed to host the Conclave. It was held on November 7, 1998. While I don't pretend to have been a neutral observer, I believe for the 88 participants it was a stimulating and fulfilling day. Certainly it was for me. And on a personal level I deeply appreciated the support we received from the 14 judges who attended. Their interest in and commitment to professionalism was obvious.

The participants were divided into small groups, each led by a moderator, to discuss the three topics of the Conclave: what is professionalism, what are the impediments to acting professionally, and what initiatives will promote professionalism. Following discussion of each topic the individual groups reported the highlights of their discussion to the plenary session. Throughout the day we were fortunate to have Randy Benthien, of Benthien Associates, serve as a facilitator. He has prepared a report (see infra) that well-captures the thought-provoking, broad- ranging discussions we had. I believe you will find particularly impressive the personal commitments Conclave participants made to promote professionalism.

THE FUTURE

At the 1999 Mid-Winter meeting, the Association approved an amendment to its bylaws to establish a Standing Committee on Professionalism. The initial focus of the committee will be to work collaboratively with other bar committees, the Inns of Court, county bar associations, the courts, and Franklin Pierce Law Center to promote an ongoing dialogue on professionalism. The goal is simple but ambitious: to make the values and characteristics of professionalism a part of our daily practice. Just as we instinctively protect client confidences, so we must act professionally.

Does professionalism matter? Given our nation's constitutional heritage and commitment to the rule of law as the mediating instrument to promote a just and orderly society, as lawyers we occupy a special position that carries with it public responsibilities. The generally low standing today of lawyers should give us pause whether we have done a good job fulfilling these responsibilities. But the problem runs deeper as is evident by the fallout from the Clinton-Lewinsky scandal. A New York Times article last fall, reporting the views of several law school deans, should serve as a wake up call to the legal profession:

'There's been this intrusion of the adversary process into life as a whole,' said Daniel R. Fischel, professor and dean-elect of the University of Chicago Law School, "and it colors everything: the way people interact, what they say, their willingness to cooperate with each other."

* * *

'There is a perception increasingly shared by lay people, but also by lawyers,' said Anthony T. Kronman, the dean of Yale Law School, "that the gulf between the law and common sense has opened up in this crisis to a considerable degree. And that has caused people to lose confidence in the law."

* * *

'The public perception is that the visible lawyers on both sides - including the President - are not reassuring about the use of law in pursuing justice in our country,' Mr. Leebron [the dean of Columbia Law School] said. "On the side of Ken Starr, many people have come to feel, it is legal procedure run amok - the use of legal tools totally without discretion and judgment."

* * *

One legacy of the Lewinsky era is sure to be a re-examination of the influence of lawyers on the country, said Ronald A. Cass, the dean of Boston University School of Law. "The question . . . will be whether lawyers are serving any real purpose in life or whether lawyers are simply engaging in semantic arguments that don't make sense to ordinary people."3

While our professionalism initiative is not aimed at shaping public opinion, raising the level of professionalism inevitably will enhance public confidence in the rule of law and the standing of lawyers.

Will we succeed? At the most general level, simply recognizing that the practice of law is a higher calling, regardless of how one defines professionalism, should make us more sensitive to our public responsibilities. But to achieve real success requires that practitioners, judges, and educators dedicate thought and time to professionalism. Every segment of the legal community has a vital role to play. Yet, ultimately what will enhance professionalism most is how each of us acts as an individual. In his final remarks to the Conclave, Randy Cooper got it exactly right: "We need, starting today, to elevate our play, so by example - on a day-by-day basis, we convert and rejuvenate professionalism 'one lawyer at a time.'"

In closing, I am struck by the wisdom and inspiration of what John Ruskin wrote: "The highest reward for a person's toil is not what they get paid for it, but what they become by it."

ENDNOTES

1.

The author was the chair of the Conclave Organizing Committee. The views expressed in this article are the author's. The other members of the committee were Betsy Cazden, Hon. Carol Ann Conboy, Debbie Cooper, Randy Cooper, Chuck Doleac, Jim Duggan, Aline Lotter, Jeannine McCoy, Hon. James R. Muirhead, Steve Tober, and Richard Uchida.

2.

A valuable resource on professionalism is the 1996 ABA Report of the Professionalism Committee, Teaching and Learning Professionalism. Appendix G is a selected bibliography of resource materials.

3.

William Glaberson, "Legal Gamesmanship May Take Toll," New York Times, September 24, 1998.

The Author

Attorney William L. Chapman is a partner with the firm of Orr & Reno, Professional Association, Concord, NH.

 

 

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