This article was originally published in “The Federal Lawyer,” Nov/Dec 2002, Volume 49, Number Ten, Page 31. © Copyright 2002 by the Federal Bar Association. All rights reserved. Republished by Butler with permission from the Federal Bar Association.
Now is the time to stop talking and start acting! In the legal professionalism debate, many scholars hope, through their own unique contributions, to spark some universal epiphany that will initiate pervasive change. But a workable solution remains amorphous; the context of the problem is in constant flux and scholars feel the need to continually approach it in a “modernized” framework. Admittedly, unique perspective is an important tool for learning the intricacies of any problem, but incessantly approaching an old problem with fresh insight becomes tiresome and counterproductive . . . especially when there is no evidence of change. If we continue to merely discuss professionalism, then we will remain mired in tautology disguised as intellectual insight.
In America, where the stability of courts and of all departments of government rests upon the approval of the people, it is peculiarly essential that the system for establishing and dispensing justice be developed to a high point of efficiency and so maintained that the public shall have absolute confidence in the integrity and impartiality of its administration. The future of the republic, to a great extent, depends upon our maintenance of justice pure and unsullied. It cannot be so maintained unless the conduct and the motives of the members of our profession are such as to merit the approval of all just men.(1)
The most significant problem in legal education today is the failure of law schools to require an exacting standard of professional conduct from law students, thereby denying them the opportunity to develop a working conceptual framework for professional conduct later in their careers.
There is no question that a crisis in professionalism exists within the legal community. A staggering quantity of material dissects the problem. An equally staggering amount of published thought proposes solutions and also suggests the problems with those solutions. Since as early as the Civil War, attorneys have discussed ways to improve professionalism. In many respects, legal education as an institution was established for correcting problems with lawyer professionalism and ethics. In the aftermath of Watergate, every law school began to focus, to some degree, on the behavior of lawyers.(2) The question that remains unanswered is: “What can the legal profession do to correct the problem with professionalism?”
The answer is the same today as it was 150 years ago. It is still law schools that possess the necessary tools for building a framework of professionalism that can be transported into the whole of the legal community. Law schools today, however, are not using those tools effectively. How severe is the problem today? And how do we begin the indispensable task of integrating professionalism into law school education?
Discovering a definition of professionalism upon which everyone can agree is a challenging task. Characterizations range across issues of civility, morality, and ethics, or various combinations of all three. For our purposes, professionalism(3) is defined as the “established ethical obligations that come with a profession.”(4) It is well recognized that such established codes or obligations may or may not fit into an individual’s personal morality and, if not, will create professional dilemmas for that individual and put pressure on the institutions that those individuals attend.(5)
For this definition to work, one must realize that professionalism is not a set of personal ideals. Professionalism is a structured code that exists to further the order within the particular occupation. The legal system exists, in the end, to provide order to society. The legal system must conform, therefore, to its own internal system of order to be able to fulfill its goals in society.(6)
In 1986, the American Bar Association reported that, because the law school experience provides the student’s first exposure to the profession, schools should adhere to the highest standards of ethics and professionalism.(7) The report also identified another compelling reason for adopting these standards: the role that professors play as models for their students.
Yet another ABA report explains that, for a professional body to create an identity for itself,
[I]t must not only claim as its own a special body of learning and skills – for which the legal profession looks increasingly to the law schools – but it must also embrace a core body of values which sets members of the profession apart and justifies their claim to an exclusive right to engage in the profession’s activities.
Professionalism, asserts the report, lies in strict adherence to this core body of values.(8)
The 1986 report of the ABA Commission on Professionalism declares that, although lawyers’ efforts to comply with professionalism rules are on the rise, lawyers’ actual professionalism may well be in a steep decline. The report argues that lawyers tend to take the rules more seriously simply because they have an increased fear of disciplinary action and malpractice suits. But attorneys tend to look at nothing but the rules, and if their conduct meets the minimum standard, their inquiries end.
The report makes a critical distinction when it claims that, while model rules or ethical canons may address what is minimally required of lawyers, “professionalism” encompasses what is more broadly expected of them, “both by the public and by the best traditions of the legal profession itself.” In the final analysis, the legal community has promulgated enough guidelines and model codes. It is painfully clear that teaching professionalism in law schools is and should be the subject of concern. Now is the time for leaders in legal education – from the ABA and the American Law Institute to the Association of American Law Schools, and from law school deans and professors, both full-time and adjunct – to visiting judges and lawyers, to step up to the plate and to lead professionalism into a new era.
A motivating parable recounts the story of the sower.(9) The account describes seeds sown in a field, explaining that, unless sown in good, well-prepared soil, the seeds will meet a variety of unproductive fates. Birds will devour some; some will fall among weeds; still others will fall on rock and begin to grow but, because they have no depth of soil, they will quickly wither away. The seeds that are placed in soil that has been prepared to receive them, however, will take root and begin to grow. Once the seeds take root, the good soil must still receive adequate water, sunlight, and nourishment to ensure that the seeds flourish. When the soil receives this nurturing, not only will the seeds yield crops, the return often will be exponential.
The analogy is clear. The law school is the sower, the soil is the law student, and the seeds are professionalism. The principles illustrated in the simple parable are intuitive. The first, and most fundamental, is that knowledge must be imparted to yield any return. Second, for knowledge to be useful, it must not only be communicated, but it must be imparted to one who has been properly prepared to receive it. Finally, once the student has been prepared and the knowledge imparted, the student must be further nurtured so that he or she will flourish and become stronger.
Law schools have the awesome privilege and concordant responsibility to impart knowledge to the law student. First, however, law schools must prepare the law student to receive that knowledge, specifically in this case, to receive the seeds of professionalism. To do so, it is imperative that law schools introduce students to the concepts of professionalism even before they first step onto campus.
Before a student even arrives, a law school can begin to enhance the student’s awareness of the importance of professionalism. Materials that discuss fundamental ethical issues within the legal community in clear layman’s terms already exist and can be used as pre-law school readings. When a student receives the orientation packet, those materials should contain a reading assignment and a requirement for a 1,000-word essay on the reading.
The Moral Compass of the American Lawyer, for example, provides insights into real-life ethical dilemmas that attorneys face daily. The book can be read in a few days. In its very first pages, the authors contend that there is a “palpable tension between the rules of legal ethics and other important principles of our society: telling the truth, being fair and compassionate, seeking justice, being courageous, acting as a moral human being.”(10) The book employs not only theory but also real-life experiences of real-life lawyers. Beginning with the familiar story of attorney Frank Armani(11) and ending with a conclusion titled “Can It Be Fixed? What Can We Do?” this book is an excellent prototype for those that can be used to expose new law students to the dilemmas they will soon face.
In its conclusion, The Moral Compass reiterates that there are indeed problems within the legal profession. It then explains where and how these problems can be attacked. One place to begin is in law firms. The authors assert that, through mentoring, pro bono work, continuing legal education, and discipline, law firms can begin to effect change. The paper also addresses the role of other legal institutions, such as bar organizations and the American Law Institute. The authors discuss the personal responsibilities of lawyers and the lawyer’s responsibility to the public.
But first and foremost, argue the authors, the biggest problems facing the legal community today can be attacked and corrected in law schools. “Nowhere can changes happen more quickly or have as dramatic an impact on the legal system than at America’s law schools.”(12) They conclude with suggestions for changing rules within the profession. Rather than rules prohibiting “material misrepresentations,” rules should clarify that zero deception will be tolerated. Limits on confidentiality should be more specific, simply allowing a lawyer to be “released from the bonds of silence whenever a client’s actions have a reasonable probability of resulting in a substantial physical harm to any individual or the public.” Finally, the term “zealous representation” has “stretched the adversary theorem beyond its reasonable limits,” and should be replaced by the fiduciary duties of “diligence, competence, candid communication, and, perhaps most importantly, loyalty.”(13)
Regardless of whether everyone agrees with these propositions, it cannot be denied that the subjects Zitrin and Langford address are considerable topics of debate, and every attorney will likely, at one point or another in his or her career, have to deal with most, if not all, of them. Why shouldn’t law students, even before matriculation, be informed of what they will be up against? Planting the seed early will enhance awareness of and sensitivity to the issues, commencing the process whereby the student builds a logical framework within which to address these problems.
First impressions last. At every law school in the country, the new student’s first impression of the law school experience should take place in an ABA-required professionalism orientation program. Such programs are already in place. They range from several hours to several days of professionalism training, using such forums as breakout groups, panel discussions, and role-playing. These courses receive excellent responses not only from students but also from academics, lawyers, and judges. The enthusiastic responses emphasize that these programs are worth imitating.
But a professionalism orientation program is just the beginning. Law colleges must further prepare the soil not only by programs and professionalism training but also by constant example. Law schools should make it clear to students from their very first day that every aspect of their legal careers will be measured against an exacting professional standard. The creation of a student code of professional responsibility – one that outlines such standards of professionalism and ethics – is essential to this process. The code would also address accountability by setting forth disciplinary procedures, similar to the honor codes of many law schools.
Incoming students should take an oath on their last day of professionalism orientation, just before they begin classes. Such an oath should look like this one, modeled after the Pre-Professionalism Code of the State Bar of Georgia:
I, _____________, as a student entering ___________ law school, understand that I am joining a professional academic community and embarking on a professional career. The law school community and the legal profession share the indispensable values, expressed in the ___________ law school Student Code of Professional Responsibility. I have read the code and will conduct my academic, professional, and personal life in such a way as to honor these shared values.
Furthermore, the signed oath would contain the following statement:
This oath, kept on file by the office of the registrar, invokes jurisdiction for purposes of prosecution under the Code of Conduct, but more importantly expresses our determination to promote the values that support the profession within both this law school community, as well as the legal community outside, and to reorient the students from their past academic context towards their professional future.(14)
All ABA-accredited law schools already have rules governing student conduct and professionalism. These rules often take the form of a code of conduct, honor code, and/or a code of student professional responsibility. No matter the title given the codes, law schools and their personnel must make every effort to emphasize the inseparable link between the conduct expected under the professionalism rules that will regulate students’ behavior after they graduate. It was Elihu Root who proclaimed to the American Bar Association that “standards of conduct are [so] important and vital because they form habits of life.”(15)
As soon as the soil has been prepared, the first seeds of professionalism can be sown. The exact point at which preparation of the soil ends and sowing begins is probably immaterial. Indeed, in many respects, the soil will always be undergoing preparation for new learning. What is essential at this point is not so much what comes next, but what has come before. The student now realizes the importance of professionalism, and future professionalism training is further validated.
It is impossible to propose professionalism as a way of life without demonstrating that proposition through action. And integration of professionalism into every aspect of law school living is the perfect vehicle for that demonstration. In many respects, a pervasive method of professionalism training already exists in many classrooms. Unfortunately, it often exists only in upper-level skills courses in which the profession explains the importance of avoiding incivility and gross unprofessional behavior to “keep the judge happy” or for the purpose of avoiding enmity from fellow practitioners “whom you may need someday.” Instead, professionalism training in the classroom must be universal, genuine, representative of the ideals of the legal professional, and lacking the disillusionment of the jaded practitioner.
Many leaders in the legal community agree that an integrated method of teaching professionalism is the best hope. Hon. Joseph Hatchett, former chief judge of the Eleventh Circuit Court of Appeals, for example, has commented: “Now we have those courses [in professionalism] . . . but I think we have to change them. I think we have to integrate ethics into every course.”(16) Judge Hatchett goes on to say that a professor teaching torts, for example, must also talk about the ethical considerations that are involved in the trial of tort cases, in the settlement of tort cases, and in the discovery in tort cases. Unfortunately, the smallest percentage of those who champion this integrated approach seems to be legal educators.(17)
A practical and simple idea for integrating professionalism into the entire curriculum is to modify the IRAC (Issue, Rule, Analysis, and Conclusion) method of case briefing and to establish instead the IRACE method, where the E stands for ethical or professionalism issues. This process would teach students to consider such issues in every case they consider, establishing a framework upon which the students can build. As professors teach black-letter law by the case method, the student will be ever mindful of the importance of spotting professionalism issues, whether in the context of torts, real property, or civil procedure. Intertwining more difficult professionalism or ethical issues into class discussions would be accomplished more easily because the students would have already begun to view cases in this light.
Another seed sown would exist in the form of required basic courses in professionalism. Basic ethics and professionalism courses in the first year not only could teach subjects such as basic civility, personal interaction, and professional conduct but also would even further validate the importance and seriousness of the issue of professionalism. While the current system seems to pay substantial lip service to the importance of professionalism, the reality is that requiring only a single course on professional responsibility minimizes the issue of professionalism. To avoid this marginalization, law schools must demonstrate commitment to the professionalism ideal.
The importance of validating the import of professionalism through demonstrative leadership cannot be overemphasized. Genuine leadership is critical at every phase of law school. In a speech to young officers in the U.S. Marine Corps, Gen. John A. Lejeune summarized the attributes of Marine officer; initiative, enthusiasm, determination, kindness, justness, unselfishness, honor, and courage were among them. However, it was the “contagion of example” that was the central theme to LeJeune’s summation of a true leader. He explained that it is never enough for one merely to know what the qualities of a professional are and never enough for one to also proclaim them; one must exhibit them.(18)
The same is true in the legal profession. To exact professional conduct, leaders must first demonstrate that conduct, and to demand unstinting attention to professionalism, leaders must give unstinting attention to professionalism themselves. Judges, lawyers, and legal academics may share a vision of professionalism, but without implementation of that vision by leaders, it remains just that, a vision.
Recognized leaders in the legal community, such as educators, judges, or attorneys, must give unsparingly to the law school community. They must, first and foremost, teach by example. But they must also invade law school campuses and open up their firms and their chambers to law students if they truly want to be a part of the change that so many of them profess to desire.
Law school professors are the “first line of defense” in this regard and should be so to students as judges should be to attorneys. Hon. Joseph Hatchett explains the role of judges this way:
Those of us who are judges have some responsibility, too. Number one, we should insist when lawyers appear in our courtrooms that they are civil, that their methods are fair, and that they are ethical lawyers who are well prepared to represent their clients. If they are anywhere short of those standards and if they do anything unethical, we as judges should be willing to report them to the proper authorities, certainly to counsel them after the hearings or after the trials. . . . so, there is a responsibility of the bench to police the bar to make sure we do have ethical lawyers who handle matters in a civil way.(19)
Law school professors have the ability, indeed the responsibility, to dictate standards of professionalism to their students. And they must do it in a professional way. Judge Hatchett goes on to say that, if judges do their jobs, lawyers will see that nothing is gained from being unethical or unprofessional. Lawyers will soon see that being unprofessional is a losing proposition, and in the long run, they will regret their conduct. Similarly, in the same way that judges must control their courtrooms, law school professors must control their classrooms, demanding respect, civility, and professionalism.
While to many the term nurturing may connote softness or a dependency of the nurtured upon the nurturer, the complete meaning of the word embodies much more, and it is this meaning that will be used here. The American Heritage Dictionary defines nurturing as (1) to nourish; feed, (2) to educate; train, and (3) to help grow or develop; cultivate: “nurture a student’s talent.”(20) While the caring and sensitivity typically ascribed to the notion of nurturing should also apply in the law school environment, it is the training and cultivating aspects that must be given particular attention. And probably the most important part of training is reinforcement and accountability.
Again, there will be no definitive moment when one turns from the planting of the seeds of professionalism to the nurturing of those seeds. Nurturing the law school student will evolve over time. In the very beginning, nurturing will take the form of caring, sensitivity to needs, positive reinforcement, and enthusiasm. Law school leaders should take care to assist inexperienced law students as they assimilate into a novel environment. Moreover, legal leaders must clearly demonstrate to new students that law school is the first three years of their legal careers, not the swan song to fraternity days.
Nurturing will include integrating more experienced law students into larger legal professional organizations, such as Inns of Court and local bar organizations. Some of the responsibilities law schools face in those first critical semesters can now be shared with the larger legal community.
Finally, nurturing will take the form of testing and affirmation. Law school leaders will test the strength of the roots that have grown from those original seeds. Will all students pass these tests? Undoubtedly, there will be failures and crises, but the students will learn from their mistakes and, if properly guided, become stronger. Most importantly, they will learn when no case or client is at stake and when there is room for error and correction.
Regardless of the manner in which the evolution of the nurturing process takes place, the most essential tool to ensure that the seeds of professionalism are adequately nurtured within law school is a pervasive mentoring system.(21) A mentor will guide the student through each stage of the nurturing process. Law schools must assign professor mentors and perhaps senior and graduate students to entering students from the very first day they arrive at law school. These mentors should be highly visible, highly professional, and always available.
Mentors from outside the law school community – judges and experienced lawyers from the real world – should also mentor law students. Professional organizations, such as Inns of Court, should facilitate student-practitioner mentoring programs.
As important as nurturing through positive reinforcement is nurturing by holding students accountable for their actions. The honor codes or codes of student professional responsibility become totally meaningless unless the disciplinary measures outlined are carried out when a student violates the code. Just as paying substantial lip service to the importance of ethics and civility and then requiring only a single course in professional responsibility marginalizes the issue of professionalism, promulgating an honor system or a student code and then doing nothing when it is violated sends a clear message to law students. Again, law schools must demonstrate commitment to professionalism by swiftly and fairly disciplining law students who fall short of the standards set.
The legal profession is self-regulating, and as such, it must be fully and truly accountable. For a professional body to create an identity for itself, “it must not only claim as its own a special body of learning and skills – for which the legal profession looks increasingly to the law schools – but it must also embrace a core body of values which sets members of the profession apart and justifies their claim to an exclusive right to engage in the profession’s activities.” Professionalism lies in the strict adherence to such values.(22)
It has been clear for many years that professionalism within the legal community must be improved. Today, the overarching professionalism problem facing the legal community is that law schools do not require an exacting standard of professional conduct from students. Without this requirement, they deny their students the very tools that they need to develop the framework for professional conduct that will sustain them throughout their professional careers.
Law schools must make it clear to new students that every aspect of their legal careers – careers that begin the first day of law school – will be measured against an exacting professional standard. To avoid minimization of professionalism training, law schools must demonstrate not only commitment to the professionalism ideal but also commitment to enforcement of that ideal. It is especially important for leaders in law school to recognize and implement “the contagion of example.” It is never enough for one to merely know what the qualities of a professional are and never enough for one to also proclaim them; one must exhibit them at all times and at all costs.
The leadership of the legal profession must act affirmatively and decisively. Leaders must endeavor to embody the words of Abraham Lincoln:
Discourage litigation. Persuade your neighbors to compromise whenever you can. Point out to them how the nominal winner is often a real loser – in fees, expenses, and waste of time. As peacemaker, the lawyer has a superior opportunity of being a good man. Never stir up litigation. A worse man can scarcely be found than one who does this. Who can be more nearly a fiend than he who habitually overhauls the register of deeds in search of defects in titles whereupon to stir up strife and put money in his pocket? A moral tone ought to be enforced in the profession which would drive such men out of it.(23)
Law students must be convinced of the supreme importance of professionalism within the legal community. They must see it at every turn. They must be incapable of escaping it.
Sean P. Ravenel is a graduate of Stetson University College of Law and is a member of The Florida Bar. Mr. Ravenel draws heavily from his past experiences in the U.S. Marine Corps when discussing the concept of teaching professionalism and the importance of mentoring. A shorter version of this article appeared in The Florida Bar News, July 15, 2001.