Bar Journal - December 1, 2002
The NH Bar Association's Professionalism Committee Defines Professionalism
In recent years there has been significant time and effort devoted to the issue of the decline in professionalism among American lawyers. The American Bar Association has issued several major reports, including the Stanley Commission Report in 1986, the MacCrate Commission Report in 1992, and the ABA Professionalism Committee Report in 1996. John T. Broderick, Jr., the incoming President of the NH Bar Association, drew attention to the erosion of collegiality and professionalism in remarks made to the 1990 Annual Bar meeting. "Some among us are falling victim to the notion that winning is what counts - whether justice was served or the integrity of the process maintained...It is no wonder we are losing public confidence." The New Hampshire Bar Association established a task force on professionalism in 1989, and more recently issued a report from a Conclave on this subject in November 1998. Each of these studies and reports have struggled to define the meaning of professionalism. Although the causes and symptoms for the decline of professionalism vary greatly, there are five prevalent themes that emerge in these recent publications:
- Perceived excesses in the adversarial process, including loss of civility;
- Changes in the economics of practice, which have made it difficult for lawyers to devote significant time to public service and resulted in a growing sense of dissatisfaction;
- Undermining of the traditional independent counseling role of lawyers, where lawyers are relegated to the status of expert technicians and hired guns, rather than wise counselors or problem solvers;
- Concerns about lawyers' competency and adherence to ethical codes;
- Loss of a sense of the ultimate purpose of lawyers serving the public good, and law as a "calling."
In order to discuss professionalism and its characteristics, it is useful to define what is a professional. The word "profession" derives from the Latin word, professionem, meaning to make a public declaration. The term evolved to describe occupations, such as medicine and law, that require new entrants to take an oath professing their dedication to the ideals and practices associated with a learned calling.1
Dean Roscoe Pound defined "profession" as "pursuing a learned art as a common calling in the spirit of public service ..." Justice Harold G. Clarke of the Georgia Supreme Court further refined the definition of "professional" as follows:
A member of a group which provides an essential service in which the public has a vital interest and requires of the performer extensive training and exercise of qualitative judgment.2
The key phrases in Justice Clarke's definition are "essential service", "vital public interest", "extensive training", and "qualitative judgment." He concludes by stating that this checklist stands as "a reminder that the distinction between a profession and a commercial enterprise is that a profession demands adherence to the public interest."
The ABA Professionalism Committee expanded on the Pound definition and particularized it for lawyers. Public service is the essence of the ABA definition of a professional lawyer, and justice and the public good is both the object of public service and the ideal to which lawyers should be dedicated. The ABA adopted the following definition of a "professional lawyer":
The professional lawyer is an expert in the law pursuing a learned art in service to clients and in the spirit of public service, and engaging in these pursuits as part of a common calling to promote justice and public good.
Some of the terms of this ABA definition require additional elaboration:3
"Professional": Someone called to do an essential public service that can only be done by a person with specialized knowledge.
"Learned Art": An art/science that requires both learned knowledge and prudential wisdom.
"Common Calling": A vocation requiring dedication to certain ideals as a way of life as part of a specialized group.
"Public Service": The performance of certain functions necessary to the general welfare or common good.
The Committee included the following traits or characteristics as essential to a professional lawyer:
- Learned knowledge;
- Skill in applying the applicable law to the factual context;
- Thoroughness of preparation;
- Practical and prudential wisdom;
- Ethical conduct and integrity;
- Dedication to justice and the public good.
While ethical conduct is a component of professionalism, professionalism differs from ethics. Ethical conduct is a minimum standard demanded of every lawyer, while professional conduct is the standard to which every lawyer aspires.
As Professor Crampton points out in his widely published article on the meaning of professionalism, lawyers are licensed to bring lawsuits, file motions and seek discovery, which imposes risks and burdens on people who are unwillingly brought into the justice system.4 He goes on to state that the privilege of being a professional lawyer brings with it the responsibility of doing so within the processes, procedures and institutions of the law. When clients avail themselves of the benefits of resolving issues through the legal system and lawyers represent those clients in that process, he concludes that neither the client nor the lawyer is free to abuse or exploit the system.
A 1958 American Bar Association report on professionalism concluded that the role of the lawyer within the legal system "imposes on him a trusteeship for the integrity of those fundamental processes of government and self-government upon which the successful functioning of our society depends."5 Good manners, discipline, behavior and civility are the "lubricants that prevent lawsuits from turning into combat" and the "very glue which keeps organized society from falling apart."6 Professor Crampton concludes that a lawyer's obligation to the client is subordinate to the lawyer's primary obligation to the procedures and institutions of the law. Excessive preference for the clients, to the exclusion of the court, other lawyers and the public, "threatens the idea that the practice of law is a public profession serving public interests."
To synthesize and build upon this work, and, because we are a profession, to give it expression, the Professionalism Committee proposes for adoption the following statement as "The New Hampshire Lawyer Professionalism Creed."
Every New Hampshire attorney must take the following oath in order to be admitted to the practice of law: (RSA 311:6)
You solemnly swear or affirm that you will do no falsehood, nor consent that any be done in the court, and if you know of any, that you will give knowledge thereof to the justices of the court, or some of them, that it may be reformed; that you will not wittingly or willingly promote, sue or procure to be sued any false or unlawful suit, nor consent to the same; that you will delay no person for lucre or malice, and will act in the office of an attorney within the court according to the best of your learning and discretion, and with all good fidelity as well to the court as to your client.
Harold G. Clark, "Professionalism: Repaying the Debt", reprinted from Georgia State Bar Journal, May 1989 in American Bar Association Symposium Proceedings, "Teaching and Learning Professionalism" (1996) at 78.
American Bar Association Symposium Proceedings, "Teaching and Learning Professionalism" (1996) at 6.
Roger C. Crampton, "On Giving Meaning to Professionalism", reprinted in the American Bar Association Symposium Proceedings, "Teaching and Learning Professionalism" (1996) at 7.
Fuller & Randall, Professional Responsibility: Report of the Joint Conference, 44 ABAJ. 1159 (1958).
Chief Justice Warren E. Burger, comments to American Law Institute, 1971 as reported in American Bar Association Symposium Proceedings, "Teaching and Learning Professionalism" (1996) at 81.