September 15, 2005 Regular News The Way It Should Be The Way It Should Be Editor’s Note: The Florida Bar Standing Committee on Professionalism recently presented Melissa Martin of Kissimmee the Lion of Justice Trophy for winning its annual Law Student Professionalism Essay contest. Martin is in her second year of law school at Barry University. Each year, essays on the topic of legal professionalism are collected by each Florida law school and the best essay from each law school is submitted to the Bar’s Center for Professionalism. The winner is chosen from those essays by The Florida Bar Standing Committee on Professionalism. The Center for Professionalism administrates the award for the committee. Melissa Martin 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 a peacemaker the lawyer has a superior opportunity of being a good man. There will still be business enough. 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, whereon to stir up strife, and put money in his pocket? A moral tone ought to be infused into the profession which should drive such men out of it. 1The mission of public service is peace; meeting needs, resolving conflict, and restoring order for all members of society — the public. In this pursuit, trust is gained or lost in the manner peace is achieved. Professionalism is the means of maintaining and building that trust while carrying out the mission because it manifests the requisite values of honesty and civility in interpersonal behavior. Without a culture of professionalism in public service, there will be a void between that which the public expects from its servants and what it sees. There will be confusion of what is right and wrong through the hypocrisy of its servant-leaders.It is no secret or stretch of the imagination that the profession of law, at least in the public eye, has decomposed to a point where neither the ends nor means of public service are obvious. Some believe the profession is focused on winning cases through any means necessary, restrained by the rules of ethics and who happens to be looking. Others believe it is all about money, or thriving from a guild of protectionism. As a result, years of commercial focus, deceitful manipulation, and unprincipled conduct have drained what trust the public (might have) had in the term “lawyer.”Despite a substantial population of good, professional lawyers in practice, the public sees only the appalling, clear cases of malpractice and unprofessional conduct that make it on the local news or gossip grapevines. Stereotypes and prejudices usually are founded on the highlighted and publicized perspectives. The profession should anticipate this and make a concerted effort to purge itself of its parasites. The difference between right and wrong is an objective test; determined by the reasonable person in the public and not the reasonable lawyer in dire straits to win a case. The apparent standards of ethics rationalize “doing what is right” into “doing what is right for the interests of my client.” From this, the profession slowly garners ethically accepted methodologies, to include manipulating minds around rules, intimidating well-intentioned witnesses, taking advantage of trust or ignorance, and designing litigation procedures toward lucrative ends. In the eyes of the public, this is simply wrong. If lawyers truly are servants of the public, how is this possible?Human nature is the main culprit. It is easy for most people to focus on the immediate, concrete considerations in daily decision-making. It is foreseeable that one will worry more about the phone calls, timelines, and paperwork of real life, rather than the unfurled anthem of professionalism. Such noble concepts are regarded as niceties or even jokes among colleagues. Apathy, laziness, greed, selfishness, and immaturity have seeped so much into the profession that it has become the culturally accepted reality. The problem, however, is that this was never acknowledged by the public. This was never endorsed. performing short of the public’s expectations, the special bond of trust and confidence between master and servant has been broken.If the law profession is to ever regain the public’s trust, it must care how it goes about fulfilling the mission of peace. As counselor, a lawyer’s fundamental purpose is to ensure his or her client’s legal needs are met. This is the profession’s ancient role in the big picture of justice and tranquility through social order. If the chosen methods are dishonorable, however, no good occurs. No public service takes place; only a mere business transaction between parties. Since the public requires of its service professionals the highest ideals of duty, honor, and integrity, there must be an effort to change the status quo. There must be a way to culturally shift the law profession toward what it was meant to be. Through the analysis of human behavior, there is a two-prong approach of persuading and infusing these principles into the profession, whether the lawyer cares to do the right thing or not: internal and external persuasion.Those who care can be inspired to do the right thing. The capacity of consistent, principled conduct is a matter of focusing on simple professionalism, or the ability to do the right thing in the face of opposing forces. Without this focus, one is left to the devices of dogs eating dogs, and all the underhanded scheming to survive that may come along with it. Though no one is perfect, perfect intentions to do the right thing are within each person’s grasp and supply the essential drive of every public servant. Lawyers are no exception to the rule. They, too, have the choice to do the right thing. The profession of law, however, is a field wrought with personal challenges and temptations. Lawyers are given tremendous power in knowledge and resources, and are expected to use their discretion to act accordingly. “Accordingly” is the fulcrum point of the problem, as it represents the cultural traffic flow phenomenon of keeping up with the latest, most advantageous, bar-accepted means of doing business. All are pressured to go with the flow and play the game according to the lowest-common-denominator rules of ethics. Some are strong enough to spite this tidal effect and maintain the highest ideals of honesty and civility throughout. With strategic competition as the main undercurrent, however, even the most professional of lawyers are sometimes swept out to sea.The scenario starts with a group of well-meaning law students, idealistic and excited to make the world into a better place. Fighting the mundane and perplexing studies of core curriculum, they finally graduate into real life and real opportunity. Working in clerkships, they soon learn the harsh truths of competition and what it really takes to come out on top. They shrug and trudge on, deadening their conscience while learning the ropes of success in the profession of law. Seemingly futile in their original hopes of helping the disadvantaged or building peace, they transform their aspirations into hopes to keep their job, or to gain more power and influence, or to make enough money to one day afford a noble practice. Frustrated, some turn to alcohol or drug abuse. Some bring their work and anger home with them. Others change professions to divorce themselves of the incessant burden. There are even those who may “turn to the dark side” in order to cast a chance for fast success.There is hope in bringing peace to these individuals and their lives; culturally transforming the profession from the inside out, one person at a time. Professional maturity is the light that guides and the armor that protects each and every person claiming to be a public servant. It is a focused progression of professional conduct, above and beyond the rules of ethics. Behind every decision, from civility in personal interaction to good faith and fair dealings with opposing counsel, professional maturity strengthens, hones, and channels intents and efforts to do right. With a grassroots embrace of this concept, defined through the following three steps, the tides will turn and the traffic flow of accepted conduct will eventually move toward the principles of professionalism.First, one must make a solemn choice: others or self. This is probably the most difficult step to master, as it requires a conscientious effort to lower oneself to yield to another. Yet, it is the most fundamental element of (public) service and peace itself. The principles of professionalism are more important than a client’s interests, and a client’s interests are more important than his or her attorney’s interests. The public entrusts its lawyers to abide by this rule. In order to better achieve this paradigm, one must start with making a habit of infusing professional integrity into daily decisions. Give back the extra change the cashier mistakenly returned. Allow road rage to pass. Take no part in gossip. Choose to make peace over unnecessary argument with a friend, relative, spouse, or opposing counsel. This perspective is antithetical to the American culture of individualism, and completely counters the apparent state of the law profession, but such is the life and selfless sacrifices of public servants. As Lincoln advised, “resolve to be honest at all events; and if in your own judgment you cannot be an honest lawyer, resolve to be honest without being a lawyer.” 2 I f one prefers the life of freedom and personal liberties over unselfish sacrifices and principled conduct, one should not choose the life of a public servant. The law profession should not be abused as a vehicle for personal or corporate gain.Second, one must meditate on and remember what society has given as a set of values; unity, justice, peace, security, welfare, and liberty. 3 N owhere in any oath or code does it state that society wishes law professionals to deceive and manipulate to achieve success. On the contrary, laws throughout the land echo with the theme of good faith and fair dealing. The public expressly commissioned lawyers with the knowledge and power to resolve its conflict in a civil, orderly fashion. Lawyers are first and foremost peacemakers, not instigators. Stirring litigation is part of the problem, not solution. In a time of legal need, people have no choice but to turn to lawyers who have the advantage and monopoly of resources. Normally, they arrive in a vulnerable state, looking for solace in the hope for justice. Then is not the time to dream about a new car or the opportunity to impress the partners, but a time to reflect on doing what is right. A lawyer wears the hat of a legal expert, mediator, psychologist, family counselor, teacher, and professional friend. These are things clients need more in a time of personal crisis. They do not need lawyers defining or reshaping what their interests are or should be. With this in mind, it is a mark of professional maturity that lawyers are well versed in the fields of human nature, effective leadership, and conflict resolution. These subjects are a part of professional competency and must be studied and understood. With such timeless wisdom and interpersonal skills under their belts, lawyers are better equipped to fulfill the objectives of peace in service to the public.Third, professional maturity is marked by a proactive stance in influencing others toward the principles of professionalism. This step mirrors the convention of servant-leadership, where the torch of professional excellence is held and followed by true disciples of public service. At this stage, sincere conviction blossoms into professional maturity and strengthens the will to do the right thing. It also gives courage and determination in the face of adversity. A professionally mature person would not shirk the duty of mentoring the young and impressionable in the principles of professionalism. A professionally mature person would not look the other way when compromises of integrity occur around him. A professionally mature person would “be” the peer pressure in developing a fellowship of colleagues who share the same beliefs, priorities, and values of professional excellence in public service. Effective time management would enable a professionally mature person to reach out to the community. As an advisor or leader the lawyer can communicate to the public the ideals of professionalism and the character necessary to achieve these ideals. Spreading the good word may even one day counter the negative publicity of the profession’s bad apples to reestablish the bond of trust.These three steps are valuable only for those individuals who care and desire to do the right thing. Not everyone cares to follow the principles of professionalism in public service. Not everyone cares to regain the trust of the public. Despite each and every lawyer having some form of professional responsibility training, some still choose the head-in-the-sand technique in practice, continuing to find and use the loopholes of ethics and abusing the trust of society. “Everyone else is doing it” is used as justification for their actions. Without the excuse of ignorance, the only reason for such childlike behavior would be a willful disobedience to the principles of public service. Just as parental control is often necessary for an unruly child, discipline is appropriate where appealing to the heart is futile. If one chooses to act professionally immature, one should also expect to be treated as such. In order to effectively enforce rules in any respect, there are two specific elements to consider: awareness and accountability.Awareness, or fair notice of the rules, is a preventative measure that comes in many utilitarian forms; from individual to general deterrence, continuing legal education symposiums to moderated focus groups. For reasons of efficiency and/or effectiveness, other service-oriented professions have primarily chosen deterrence through profession-specific codes of conduct that mimic the highest expectations of the public they serve. The military, for example, criminalizes “conduct unbecoming an officer and gentleman” and “service-discrediting conduct.” Elements of such conduct include compromising one’s standing in the military profession, bringing dishonor or disgrace to the accused by impugning his or her honor or integrity or otherwise subjecting him or herself to social disgrace, or bringing injury to the reputation of the armed forces. 4 A convicted officer may be dismissed from service, forfeit all pay and allowances, and be confined for the amount of time authorized for the offense listed in the Manual for Courts Martial (but no more than one year). 5 C onsequently, professional conduct is at the forefront for all military officers in their daily decision-making processes, regardless of internal motive or intent.The designed leverage of any deterrence program or rule must meet the core pushbuttons of those with more immediate concerns than professionalism: job security, money, reputation, and power. This stooping may be insulting for some, but is a necessary evil to gain full compliance in any human organization. For example, professionalism would become high priority for anyone under threat of a “three strikes and you’re out” policy for unprofessional conduct. While insurance may easily cover malpractice suits, no one wants to lose their ability to practice in the state of their choice. Conformity to an enforced set of rules would be the only logical choice. Though threats and intimidation of consequence would normally have no purpose in such a prestigious profession as law, the proof is in the pudding that the few bad apples still need to be held responsible for their actions. They are the primary source of the profession’s infamy.Simultaneously, ethical legal practice in Florida could and should be heightened by changing more “shoulds” to “shalls” in the Rules for Professional Conduct. In addition, the professional expectations could be strengthened by incorporating more guidelines as concrete rules of ethics. For example, “Counsel [ shall ] at all times be civil and courteous in communicating with adversaries, whether in writing or orally.” 6 N ow, with infractions come consequences. Unless the bar is raised to the desired standard of expected professionalism, conduct will descend to the path of least resistance and maximum strategic gain. Lawyers are experts of liability. Why waste time or energy on civility when there is no measure of answerability? One cannot breach a duty that was never obligated.Accountability is the other critical ingredient toward enforcement of professional conduct. If a lawyer is guilty of doing something wrong, against the principles of professionalism and/or rules of ethics, there must be swift and immediate action to address and punish accordingly. Wrongdoers must be held to the same standard as everyone else in society. Judges must be the umpire for proper courtroom conduct. Rule 11 and other such established mechanisms should be encouraged and utilized more frequently, as appropriate. 7 O pen hearings, the media, or other watch-dog groups should serve as a check-and-balance to ensure professionalism. Though certain people may be driven out of the profession (as was Lincoln’s intent), America is not, and will probably never be, at a loss for lawyers. As the quantity slows or even decreases, the quality and caliber of law professionals will be in true and trustworthy service to the public.A proposal is as good as its feasibility. Though real change is incremental, no transformation will occur without the endorsement and enforcement of the profession’s leadership. From The Florida Bar Board of Governors to law school professors, it should be the underlying theme in every decision. Those in positions of influence must take the leap of faith and choose how to most effectively and judiciously wield their given power; for either the force of proactive righteousness or status quo. They must choose whether it will serve the public first and foremost, whether it will incorporate such principles into its core and collateral structures, and whether it will lean forward with initiatives toward professional maturation. The system, in its planning, operational, and budgetary priorities, must reflect this set of values in how it manages the profession, and what it deems acceptable and unacceptable. Beyond carrying the torch of professionalism, it must also take certain action to ensure proper application and enforcement of its principles. Society and the welfare of each member in the profession depend on it.In guarding the sanctity of justice in the pursuit of peace, lawyers must either be internally or externally driven to uphold the sacred honor of the profession in honesty and civility. Lincoln understood this. Even more, he saw the power and possibility of infusing the profession with the morals and principles of public service to the point lawyers will one day regain the trust of the people and be esteemed as “good” people in a respected profession. The highest ideals of professionalism will become the cultural means to the end goal of public peace. It is possible. 1. Abraham Lincoln, Notes for a Law Lecture, in THE COLLECTED WORKS OF ABRAHAM LINCOLN (Roy P. Basler ed., 1953) available at http://showcase.netins.net/web/creative/lincoln/speeches/lawlect.htm . 2. Id. 3. U.S. CONST. pmbl. 4. UCMJ, Art. 133 and 134 5. MCM, Part IV, para. 59e 6. Center for Professionalism, Guidelines for Professional Conduct, available at www.floridabar.org (updated Jan. 2005). 7. FED. R. CIV. P. 11.