Bar News - October 16, 2009
Is the Death of Professionalism Near?
By: Mark Bassingthwaighte
I recently moderated a daylong ethics and professionalism CLE that was mandatory for all newly admitted bar members in the jurisdiction where this program was held. Always one to encourage vigorous debate and open discussion, I was both pleased and troubled by what happened that particular day. Sometimes there are a few newer to the profession who are willing to express thoughts that those of us who have been here quite a bit longer would never dare say. So I was pleased in that risks were taken by some who shared their true feelings and troubled by certain things being said.
The NH Bar Association offers members a variety of information and material on maintaining and developing a high degree of professionalism in the legal community.
One such source is a set of Litigation Guidelines which consist of a set of inspirational goals adopted by the NHBA Board of Governors to assist practitioners in maintaining civility in NH trial practice.
The NH Bar also provides attorneys with access to the NHBA Dispute Resolution Committee, which has been designed to handle, first on an informal basis, those disputes between/against attorneys that do not rise to the level of an ethical violation of the Rules of Professional Conduct. For example, should an attorney not return phone calls, make excuses about the delays in a case, or if the attorney will not relinquish a clientís file after being dismissed, then these matters may be brought to the committee.
For more information, visit the For-Members area of Barís website (login required).
Here is the gist of the position of one attendee. The Rules of Professional Conduct were written to define someone elseís moral high ground in order to enable them to justify going after others who dare to disagree with that moral view. The perspective seemed to be that the very existence of the rules was almost offensive and certainly an uncalled for restriction on oneís ability to practice as one sees fit. Now, I do not believe that this individual was saying that anything should go, but he was willing to express a view that, in my experience, a number of other attorneys would strongly agree with. In short, there are those among us who view the rules as being written by disciplinarians who wish to force their world view and moral beliefs upon the rest of us. I respectfully disagree.
As a risk manager, I am in somewhat of a unique position in that I am able to have private discussions with attorneys who are trying to work through ethical dilemmas. I am surprised at times to see how far some of our peers try to go in order to interpret the rules in a way that will allow them to do what they wish to do. There is a desire to find the one comment or clause that will allow them to proceed and real frustration and at times even anger if the "permission" they are looking for just isnít there. For example, there are going to be times when an attorney finds himself in a conflict situation that is not waivable as the Rules simply do not permit the attorney to remain involved under the circumstances.
Yet, due to the lost income opportunity or having to walk away from a matter after having "invested" significant time and money in the matter which will become unrecoverable, a withdrawal from the matter is simply viewed as not an option. At this point, then, the Rules are liberally interpreted and/or rationalizations come into play as commentary to the Rules or a certain clause is twisted to justify the desired outcome. Others will go so far as to say, "Hey there is nothing here that specifically says I canít do this so Iím going to do it until someone says I canít."
To make matters worse, these same folks will turn to the Rules if and when trouble follows and seek to use them to try to justify their decision. They will say that the Rules never said directly that this wasnít permissible or they will present an expansive interpretation of some comment in defense of their decision. Here is my point. You donít get it both ways. One canít look to the rules for justification for any and all action one wants to take and then turn around and use the Rules as a shield against someone questioning the propriety of the action taken via a disciplinary complaint. Yet this is exactly what some members of our profession do.
I have found that some members of our profession seem to view the opportunity to practice law almost as an entitlement. They paid their money, put in their time, got the degree, passed the bar, and by God no one is now going to tell them what they can or canít do as an attorney. Now, understand that our profession is under attack and our reputation remains less than stellar. Why? Just listen to the headlines any day of the week. There is always something along the lines of "Lawyer Indicted in Ponzi Scheme," "Lawyer Charged in Real Estate Scam," "Lawyer Disbarred for Theft of Client Funds," or "Lawyer Loses License for Inappropriate Sexual Relationship with Client." Something is out of whack here and I am suggesting that part of the problem is perspective. The opportunity to practice law is not a right and the Rules of Professional Conduct were not written to be a self-serving tool used to protect our own.
Ultimately my thinking leads to this: As professionals we have been granted the incredible privilege of self-regulation. With that comes responsibility and accountability. What we as professionals do with this privilege will dictate how long we continue to have the opportunity to self regulate and, for me, the Rules are key. Our Rules are not properly viewed as a shield to protect us when trouble arises nor are they there to be twisted to justify any specific action an attorney might wish to take. Like it or not, there are going to be conflicts that are simply not waivable. Sometimes the answer will be no. In the end, the Rules are not an attempt by some to impose their morality on others. The Rules are our professionís attempt to establish the guidelines by which we self regulate. Instead of viewing them as a shield, I suggest that the Rules are more properly viewed as establishing the floor that we as professionals stand upon in order to exemplify what it means to be a true professional. The Rules are intended to elevate our profession, not restrict individual decisions.
In spite of the title of this article, I do not believe that the end of professionalism is near, but I do worry that the privilege to self regulate may be. As attorneys, all of us have been granted the privilege to practice in this honored profession. The more of us who lose sight of this and act as if it is a right, then weíve got a problem. So, keep the Rules handy and look to them for guidance when faced with an ethical question. Seek counsel from others when applying the Rules to a complex situation. Take pride in the fact that we have these Rules and if you disagree with some aspect of them, participate in our rule making process in order to change them for the better. Finally, read them from time to time always remembering that these Rules define who and what we are as professionals.
Mark Bassingthwaighte is risk management coordinator of the Attorneys Libability Protection Society. This article is reprinted with permission by the ALPS Risk Management Report.