Professionalism in the practice of law
Charles E McCallum*
Warner Norcross & Judd LLP, Grand Rapids, Michigan
We accept as a given that the practice of law is a profession. But what makes it a profession? Indeed, what is a profession anyway?
The key attributes of the profession
The classic definition of a profession is that it is an occupation based on a specialised body of knowledge and skills, entry into which is restricted to those who prove their competence, and which is conducted in the interest of those it serves and of the public generally, and is subject to self-imposed rules of ethical conduct.
The essential attributes of the profession of law frame an important set of obligations that are correlative to the privileges and status we enjoy as lawyers. If we fail in those obligations then we lose, our clients lose, and society loses. Those attributes are, for most of us, a good part of the reason we entered the practice of law. They are the elements that give us the greatest satisfaction with our professional lives.
I suggest that there are seven key attributes of the legal professional:
- Dedication to serving clients before self.
- Dedication to serving the public interest, improving the law, and improving the profession.
- Devotion to honesty, integrity, and good character.
- Passion for excellence.
- Practice in context.
- Maintenance of competence in a specialised body of knowledge and skills, which are freely shared with other professionals.
- Independence and self-regulation.
Helping others is at the core of our professional being. Good lawyers daily subordinate their personal lives to the needs of their clients, not simply to log on more billable time but for the satisfaction of being needed, being wanted, and being appreciated. I have suggested that the motto of the legal profession might well be servimus, which means simply ‘We serve’. The best lawyers are compulsive about client service. They can’t help themselves.
Serving the public interest
Serving the public interest is also an essential part of our professional lives. Our duty to the public interest requires that we not knowingly assist a client to commit a crime or a fraud, nor knowingly mislead a tribunal or another party in the course of a representation. We are, as declared in the ABA Model Rules of Professional Conduct, ‘public citizens’, with a duty to seek to improve the law, to improve the profession, and to improve access to and the administration of justice.
Good character is prized among lawyers. We value honesty and integrity and want them to be our reputation. We expect to be trusted, and to be able to trust our peers. We want our word to be our bond. The process of admission to the bar includes an assessment of character, which has been defined as a synthesis of the virtues – honesty, dependability, courage, loyalty – working together as an integrated whole.
Excellence is, for most of us, a lifelong goal. The ranks of lawyers are filled with overachievers and perfectionists. ‘Good enough’ is not heard from a good lawyer.
Context is also important to us. We aspire to be more than simple technicians. We want our work to be meaningful and useful to the client, and in order for it to be so, and for us to see it as such, we have to understand the overall context in which our services are rendered; the ‘big picture’. Indeed, our professional responsibilities require that we do not turn a blind eye to the context in which our assistance is sought. This was recognised in a report recently issued by the Task Force on the Lawyer’s Role in Corporate Governance of the Association of the Bar of the City of New York, which said:
‘Outside counsel . . . should endeavor to be aware of the context in which and the purpose for which her services are being requested and used.’
Specialised knowledge and skills
Specialised knowledge and skills are the tools of our profession. Lawyering is an exercise of the intellect and interpersonal skills. We are by nature problem-solvers, and we enjoy not just the solution but the exercise of reaching that solution. We appreciate and admire good writing, sound reasoning, skilful advocacy, and adroitness at negotiations. We gladly accept the professional responsibility of continuing legal education.
Independence and self-regulation
Independence and self-regulation of our profession define a final characteristic of lawyers: a resolute independence. We have chosen our profession in part because it allows us to, indeed mandates that we should, exercise independent professional judgment on behalf of our clients. We adhere to a code of professional ethics, and insist, through self-regulation, that all lawyers do so.
Professionals need to watch out for pitfalls – temptations to deviate from their professional ideals. The major risks are misplaced priorities and loss of moral compass.
I tell my children that money is a good measure of a man’s wealth, but a poor measure of his worth. To some degree justifiable criticism of lawyers has arisen out of misplaced priorities, with the desire for money sometimes causing lawyers to lose sight of their duties to the client, to the public interest, to the law, and to the administration of justice.
There is, of course, nothing wrong with making a good living, indeed, in making a lot of money, in the practice of law. But that objective cannot be the lawyer’s primary focus. As David Maister, a keen observer of the practice, has said:
‘Being a professional is neither about money nor about professional fulfillment. Both of these are consequences of an unqualified dedication to excellence in serving clients and their needs.’
Maister likes to ask lawyers why they do what they do. If one of the answers is not ‘I like helping people’, he says that then he knows he is talking to a professional in trouble.
A recent report of a New York City Bar Task Force notes the danger in misplaced priorities:
‘Another change in the profession . . . has been its evolution toward a more competitive, bottom line orientation, with client relationships often in play and critical to the compensation of partners. This environment creates pressures on law firms and lawyers to acquiesce in questionable client conduct rather than place the client relationship at risk by pressing unwelcome advice.’
Loss of moral compass
There is a moral dimension to the practice of law. This is recognised in the ABA Model Rules of Professional Conduct, which affirm that lawyers are guided by ‘personal conscience’ and must exercise ‘sensitive professional and moral judgment’.
The pursuit of money is not the only thing that can cause the loss of one’s moral compass. A desire for recognition and excessive pride verging on hubris can also tempt a lawyer to detach himself from his moral grounding. Some lawyers are openly cynical about lofty motives and embrace the notion that to do the right thing may not be smart. But the great majority of lawyers do believe that honesty is the best policy. We should not be shy and hesitant to admit that belief, but proud to proclaim it.
What should we do?
David Maister observes that professionalism is ‘predominantly an attitude, not a set of competencies. A real professional is a technician who cares.’ True professionalism, he says, implies ‘a pride in work, a commitment to quality, a dedication to the interests of the client, and a sincere desire to help.’ What can we do to maintain and enhance professionalism in the practice of law?
The first thing we can do is individually to recommit to the ideals of our profession. We should talk about those ideals with others, especially young lawyers. In addition, every lawyer should:
Become a volunteer
Any number of community organisations would benefit from our services. Pick a place to volunteer that is of interest. Perhaps it is a church. Or a school board. Or an arts group. Or an animal shelter. Or a poverty centre.
Become active in the work of the organised bar
Active involvement in the work of the organised bar gives unparalleled opportunities to meet and get to know other outstanding professionals. It enriches our professional lives. It gives us the opportunity to work together to improve the law, the profession, and the administration of justice. And it makes us better lawyers, to the benefit of our clients.
The goals defined by the seven professional attributes I have discussed are lofty ones. Some scoff at lofty goals. But no one ever attained greatness by aiming low.
I have practiced law for more than 44 years. Every year I have been in the practice, including this year, I have been able to say that I have never enjoyed the practice of law more than I do now. When I say this, some affect surprise. But why should it be surprising? Every year I know a little more, I am (I hope) a little wiser, I have had a few more experiences, and I am therefore more self-confident. And every year I meet new and interesting clients and lawyers.
Some lawyers have told me that they will discourage their children from becoming lawyers. I hope they do not do so; I can’t think why anyone would. The law is a noble profession, and, if we work at it, we can keep it that way. I am proud to be a part of it.
*Chair, ABA Section of Business Law; Former Chair, ABA Standing Committee on Ethics and Professional Responsibility; Former Chair, Business Law Section of the State Bar of Michigan.