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Bar News - January 19, 2007


Professionalism Committee - Advocating Beyond What Is Expected at the Core of Lawyering

By:


Over five years ago, the New Hampshire Bar’s Board of Governors adopted The New Hampshire Lawyer Professionalism Creed. You have probably seen it, posted in a courthouse anteroom or on the Bar’s Web site (http://www.nhbar.org/legal-links/nh-professionalism-creed.asp). Perhaps there is even a copy hanging in your own office.

           

However, there is a problem with the Creed, and it is not what you might expect. It certainly encourages a standard of conduct that exceeds what is required by the Rules of Professional Conduct. It promotes civility among lawyers. It encourages the practice of law to be embraced as a higher calling, as opposed to a mere vocation.

           

But why doesn’t the Professionalism Creed call upon us to be “zealous advocates?” Isn’t zealous advocacy the core of any lawyer-client relationship? Isn’t this the refrain that has been branded on our moral briefcases since law school?

           

The Professionalism Creed actually espouses reigning zealousness in: “…[A] New Hampshire lawyer … tempers zealousness on behalf of the client with his or her role and responsibility as an officer of the court.”

           

Tempers it? Does professionalism really demand that zealous advocacy be moderated and suppressed? When did it become a benchmark of our profession to curb one’s zeal?

           

There is a seemingly obvious answer: It is unrestrained zeal which clouds sound judgment, leads to sharp practices, and sometimes gets lawyers into trouble. Zealous advocacy is what the public often perceives as standing in conflict with principle, or planting landmines on the path to the broader good. And perhaps, in order to address the public’s perception of us, the Professionalism Creed discusses zealousness in this self-regulating way.

           

Still, that answer isn’t satisfactory—the commitment to zealous advocacy is exactly what seems to make our profession different from all others, and what makes our work as lawyers more than a mere vocation.

           

It is true that, sometimes, zealousness must or should yield to facilitate just outcomes. But sometimes it shouldn’t, and we as lawyers should be mindful of this fundamental purpose.

           

So maybe we have to look further: “…[A] New Hampshire lawyer has a social conscience and is dedicated to serve the public and society. A New Hampshire lawyer is willing to take up an unpopular cause or to engage in pro bono work, even when it is unpleasant or costly.”

           

Perhaps it is really here, where the words “zealous advocacy” are absent, that the term is truly defined. Taking pro bono cases, representing the person who cannot pay but who truly needs legal representation, is a level of advocacy beyond what is expected or required. Being an advocate for unpopular causes requires nothing less than whole-hearted commitment. Bringing a social conscience to work every day means it is more than just a business or a job. And suffering the cost, financially or otherwise, furthers the integrity of our profession, even when some of the public may not see it that way.

           

I claim neither the moral authority nor experience to proclaim this is our calling, or to urge you to action. But I see in our profession the lawyers who take these cases, who do so without thanks, or praise, or profit. And it is always these same people who come to mind when I think about the practice of law and what it means to be a professional.

           

March 9, 2007 is Professionalism Day. Come and join members of the Bar’s Professionalism Committee and other members of your local bar in a discussion of what it means to be “professional.”

 

Richard E. Samdperil is a criminal defense attorney and a principal of Samdperil & Welsh, based in Exeter.

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