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Much attention is being focused on the topic of ethics and professionalism in the practice of law. Former Florida Supreme Court justice Raoul Cantero notes a “distinction between the concepts of ethics — described what was required of lawyers — and professionalism — what was expected of lawyers.” (Raoul Cantero, The Carrot-and-Stick Approach to Professionalism. ) In his article, Mr. Cantero relates various cases of lawyers being sanctioned by the Florida Bar for ethics violations. The problem, Mr. Cantero asserts, is that since professionalism, as opposed to ethics, is purely aspirational, very few lawyers aspire to them. The line between enforceable ethical codes and unenforceable professional aspirations is blurring. According to Mr. Cantero, “More and more, the Florida Bar is prosecuting, and the Florida Supreme Court is disciplining, conduct that at one time may have been considered unprofessional but not sanctionable.” (Id.) Stories such as the ones in Mr. Cantero’s article highlight the instances of “lawyers behaving badly” that feed the stereotypes of the profession.
Mary Miller Johnston, in her article “A View From the Bench: The First Year” (Delaware Lawyer, Winter, 2004 – 2005) also takes note of professional behaviour above mere compliance with ethics codes. Judge Miller Johnston succinctly notes her “top five” and contrasts them with “pitfalls”. The freshman judge very aptly characterizes the issues of professionalism and ethics as boiling down to one of mutual respect. I like that she plainly states that“if attorneys will simply behave as if they are being scrutinized by their mothers and kindergarten teachers” then the profession will be much more civil and well respected.
Remember your manners. That is is the thrust behind the article by Professor Catherine Therese Clarke, “Missed Manners in Courtroom Decorum”. (50 Md. L. Rev. 945 (1991).) Professor Clarke ties the decline in ethical and professional behaviour in the courtroom to a lack of etiquette, and that “judges must bear some of the blame for not being more demanding.” (Id. at 947.) Extending beyond the niceties that proper etiquette facilitates, Professor Clarke proposes that a written standard for courtroom etiquette would promote the preservation of power and professionalism, efficiency, and fairness. This article resonates with my personal view of ethics, professionalism, and the legal profession – remember what you were taught as a child. Play nice and treat each other well.
Justice Cantero, Judge Scola, and Judge Reyes have shared the view that the judges took of lawyers who “misbehaved” in their courtroom as compared to when they or other judges “misbehaved” themselves. Ultimately the “buck” stops with the judge, so it behooves a lawyer to defer to the person in the robes, but the dichotomy between the two views stood out for me. When a lawyer behaves in a way that the judge does not approve of, the judge instantly forms negative opinions of the lawyer, puts them on a mental “black list” and will even gossip about the lawyer to other judges. We are to take that as a warning to “behave” or be ostracized. When a judge misbehaves, however, we are asked to be patient, offer the benefit of the doubt, or just “take it”. After all, the judge may just have had a toothache. Nothing personal. It is telling that the professional courtesy extends in only one direction – lawyers take note!
Another point in which I found a dichotomy was regarding solo and small firm lawyers. Early in the discussion, solo and small firm lawyers were characterized as being more prone to lapses of professionalism because of issues such as their lack of “mentoring” and the fact that they are often under high pressure to bring home the money. Towards the end of the discussion, the judges were asked if the view from the bench was that there was a perceptible difference in professionalism and competence between the solo/small firm and “traditional” large firm lawyers. The tripartite consensus was no. Neither of the three judges found any difference from solo/small firm to large firm lawyers. So why the early admonition to going solo? I think there is a stigma among the profession that solos are more prone to be “bad” lawyers. I, for one, see this as a stigma that needs to be broken.
Ultimately, I agree with Judge Scola. Everything we need to know as lawyers we already learned in kindergarten. Play nice. Share. Respect your elders. Maybe more laywers don’t need a bar ethics panel looking over their shoulder as much as they need to have their grandmothers in the courtroom.
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