This thing called “professionalism”
Law schools teach professionalism as if it were a code of morality for an elite club called the bar. Newly minted members of the club sometimes (perhaps too often) hear the words “professionalism” or “professional” foisted upon them by more longstanding members. The words are used perhaps as a brush-back pitch to new lawyers, who live in fear that the license they worked so hard to acquire will be expropriated before it is put to productive use.
Professionalism, of course, is a conclusory term, a label, that perhaps has been used so many times and in so many ways it is now a shell of a word that, when used in a critique, often leaves the alleged perpetrator wondering what he or she did wrong.
As lawyers, we manage the resolution of conflict or the avoidance of conflict. Lawsuits are about resolving conflict, while the execution of contract, for example, is about avoiding it. Of course, advocacy is a significant component of what we do; being an advocate can, no doubt, draw a lawyer into the conflict.
Yet, professionalism means behavior that keeps the lawyer from becoming part of the conflict, exacerbating the conflict, or closing channels that might be used to resolve the conflict. Remaining apart from the conflict is, unfortunately, no simple task; consider the tension created by bar rules that require a lawyer to “represent a client zealously and diligently within the bounds of the law.” [1] Consider that clients too often want their lawyer to feel their pain or disdain the opposition and most particularly their counsel. There are those clients who hire their lawyers to be bulldogs ; for their part, these lawyers may play that role to win the client’s continued confidence even when the case is headed south. And for lawyers who don’t go into a case seeking to play the bulldog, their opposition may be so frustrating or obstreperous that the response is bulldog behavior.
The late George Barrett of the Nashville firm of Barrett Johnson Martin & Garrison, LLC was a leading civil rights lawyer of his day and championed causes that, at the time, were unpopular. Barrett once noted, “I was glad to manage protest routes and get Vietnam demonstrators out of jail, but I won’t march with you. I think a lawyer has to decide.”[2] In 2014, when Barrett passed away at the age of 86, Nashville Mayor Karl Dean said, “George Barrett was larger than life and always willing to take up an unpopular cause if he felt it was the right thing to do.”[3] Barrett understood what professionalism meant.
Professionalism means keeping in mind that 99 percent of all cases settle or are resolved before trial and there may be a day—perhaps at the end of a deposition—where you or opposing counsel might say, “Maybe we should talk about whether there is a way to put this dispute to rest.” How do you have that discussion without a relationship with the other side? How do you have that discussion if the entire pretrial process has been consumed with personalized disputes between opposing counsel?
Setting aside the matter of an ultimate resolution, opposing counsel need to work with one other to create efficiencies in the litigation process. Professionalism greases the way for dialogue about document production; stipulations as to admissibility; or shortcuts to resolve disputes, including bifurcation, bellwether trials, and capping or putting floors on damages.
Professionalism also means resisting the temptation to meet your opposition’s bulldog behavior with that of your own. It means lowering the temperature between counsel. Consider a deposition where your opposing counsel is being obstreperous, making speaking objections, and coaching the witness. If the conduct persists, the matter may have to be taken to the judge. But does burdening the record with arguments over the obstruction make the record any clearer for court review? Or will such argument just detract from the goal of the deposition, which is to get information? If you ignore obstreperous counsel, are they more likely cease their conduct? Perhaps so.
And professionalism means acting in a way that makes the judge’s job easier, including giving your opposition an opportunity to complete a full argument, as opposed to interrupting. Using court hearings to personalize attacks on opposing counsel do little to curry favor with the court and only polarize a relationship with the opposing counsel, whose help you will need to resolve the case.
In an era in which we give attention to psychological well-being in the workplace, professionalism is also about lowering stress, which comes from dialing down the temperature between opposing counsel. It means understanding that being a zealous advocate is not inconsistent with being an honest and respectful opponent, a mensch.
Eventually, there will be a client who questions your decency. You might be accused of not being mean enough. Professionalism is also about educating the client on the style you will use to make the case more efficient, avoiding needless battles. The education process starts at the first meeting and continues throughout the retention.
For those teaching professionalism, it is not something that can be taught in a book or tested by written exam. It is something more suited to experiential learning, which may include simulated negotiations over pretrial matters, mock depositions, or oral arguments. However it is taught, students must understand that while professionalism is thematically about ethics, it is also about practice and efficiency.
[1] See, e.g., DC Bar Rule 1,3 Diligence and Zeal.
[2] See Profiles in Justice: A distinguished lawyer and friend – The Global Legal Post.
[3] Id.
