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Beck, et al presents the results of an extensive series of studies on “lawyer distress” (Connie J.A. Beck, Bruce D. Sales and G. Andrew H. Benjamin, Lawyer Distress: Alcohol-Related Problems and Other Psychological Concerns Among A Sample of Practicing Lawyers, 10 J.L. & Health 1 (1996)) where the studies present page after page of statistics all pointing to one major conclusion – as lawyers, we’d better “watch out”! The article points out that students get more stressed in the year after entering law school than they were in the period just prior to entering law school. The study also shows that that stress level jumps up again when the law student graduates and makes the transition from student to lawyer. “The results obtained from this study indicate some fairly disturbing conclusions about the evolution of psychological distress and probable alcohol-related abuse problems in currently practicing lawyers.” (Id. at 44.) The article concludes with a bleak prospect for us as future lawyers.

From the findings detailed above, one can conclude that psychological distress, in its many forms, is likely to affect newly practicing lawyers in a similar manner regardless of the state in which they practice. In addition, throughout their career span, a large percentage of practicing lawyers are experiencing a variety of significant psychological distress symptoms well beyond that expected in a normal population. Interestingly, the basic pattern of distress may represent the traits necessary to be a successful lawyer (obsessive-compulsiveness, interpersonal sensitivity, and anxiety) and the costs associated with this success (depression and social alienation and isolation).

(Id. at 57).

So what are we to do? I think this ties back in to a comment that Mr. Josephsberg made in his talk on civility in the legal profession. He began by observing that, in his opinion, it is not so much a factor that the current generation is any less civil or professional than his generation. Rather, as a 72 year old attorney, he perceives it as that the un-professional, un-civil, high-stressed lawyers among his generation have mostly either died or quit. I would tend to agree with this assessment.

Mr. Josephsberg’s admonition to “be civil” echoes a call to professionalism that, while coming from external sources, can only truly be effectuated by a personal and internal acceptance and application by each individual law student and practicing lawyer. More to the point, in order to better understand how to become a more civil and professional lawyer, we need to look inside of ourselves and recognize the very characteristics that, if left unchecked, can get us all in trouble. In her article, Susan Daicoff addresses this issue as follows:

Suggested external cures usually involve lawyers working less, being less money-oriented, being less competitive and aggressive and more collaborative and collegial, being more caring and humanistic, providing more community service and pro bono work, mentoring other lawyers and being mentored, and being more strictly regulated or disciplined. Internal cures call for a change in lawyers’ fundamental values, appearing to wish for a return to the good old days when lawyers were principled, sage advisors instead of value-neutral hired guns. Some legal scholars have argued for a fundamental change in the lawyer-client relationship as well as the lawyer’s role, often recommending that lawyers consider their own morals when representing clients.

Susan Daicoff, Asking Leopards to Change Their Spots: Should Lawyers Change? A Critique of Solutions to Problems with Professionalism by Reference to Empirically-Derived Attorney Personality Attributes, 11 Geo. J. Legal Ethics 547, 548 (1998).

Ms. Daicoff suggests that a lawyer, by his very nature, is a creature composed of various inherent characteristics which are all vital to the effective practice of law. These characteristics are described as “materialism, need for achievement, preference for dominance, competitiveness, tendency to respond to stress by becoming more aggressive and ambitious, insensitivity to interpersonal, emotional, humanistic concerns, the Myers-Briggs dimension of “Thinking” as an approach to decision-making, and a “rights” orientation to moral decision-making (as opposed to an ethic of care).” (Id. at 594.) So the question becomes, do we change the lawyers? Do we have a lawyer “change his spots”? Ms. Daicoff concludes the article with a call for more data and more research. From my perspective, it is a matter of acknowledging that these traits exist in good, competent, and professional lawyers so long as they are kept in check. The best way to keep these in check is to become aware of them.

Awareness of the pinnacles and pitfalls of the legal profession can only be learned by two methods. The most obvious method is by experience. In my opinion, the better method is through formation – mentoring – and the relating of experiences. Law students, like young children, need to hear the stories as told to them by their “elders”. Communication – a true and open dialogue – between the legal generations is the only way that we are going to pick ourselves up from this rut of incivility and lack of professionalism. Professor Lawrence Krieger writes that, “students are not told in law school what they really need to know to have meaningful and healthful lives as lawyers.” (Lawrence S. Krieger, What We’re Not Telling Law Students-and Lawyers-That They Really Need to Know: Some Thoughts-in-Action Toward Revitalizing the Profession from Its Roots, 13 J.L. & Health 1, 3 (1999).) Professor Krieger contends that law students need to be told, early and often, about the positive and negative aspects of the legal profession. The positive so that they can strive for the good, and the negative so that they can, hopefully, avoid it. Unlike many other authors of articles on professionalism, Professor Krieger feels that it is within the ability of each law school, law student, and lawyer to improve themselves and, along with them, the profession. “In fact, law students and lawyers can make choices that will simultaneously enhance personal and professional life, because health, life satisfaction, and professionalism are closely linked.” (Id. at 34-35.)

Recently, I had the opportunity to hear from Mr. Michael Cohen, Esq., Executive Director, Florida Lawyers Assistance and Dr. Cheryl S. Nowell, Director, Counseling & Psychological Services Center on this topic.  Mr. Cohen (and to some extent Dr. Nowell) asked us to consider why we were entering the legal profession? Were we doing it for “internal” or “external” reasons? The recurring theme is that people that enter the legal profession solely for the money, power, and prestige quickly become disillusioned with it and fall into various professional and ethical problems as a result. Dr. Nowell found the statistics in the reading material to paint a very negative picture of the profession. This prompted her to ask, “Why would you pursue law?” Mr. Cohen emphasized an important point, however,  -

The statistics are true, but they don’t have to be for you.

What do you think?

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This week’s topic focuses on civility: The Profession’s Call for Civility. “Got a Problem with it?” As Robert Josefsbergpoints out in his article of the same name, civility is a component of professionalism (including civility, ethics, being well prepared, and pro bono work).

But why is civility important? Why is there a focus on civility when looking at the broader topic of professionalism?

Every member of a profession gets evaluated at some level by his peers and clients. A person’s “level of preparedness” is measured in an objective fashion. Either you can perform the work required or you can’t. You are either “good at what you do” or you are not. Work product tends to be easy to hold up to a yard stick. Ethics is on the other end of the spectrum. While ethical norms are base-lined by the profession, ethics is generally an internal metric. Many “ethical” problems are subjective in nature and hard to quantify. Surely, gross deviations from the established norms are easy to point out as being “unethical”, but what about the vast expanse of “gray” that lies between the black and white? Civility on the other hand, is the component of professionalism that is most often at the forefront when a person is characterized as being professional or not. How a member of the bar interacts with other people plays the largest role in whether they are perceived as professional. Mr. Josefsberg correctly points out that the traits are linked, but I would contend that the trait of civility carries more “perceptual weight” than ethics or competence. Civility is the touch point – it is often the first, and most lasting impression. People care about how they are treated. Treat me well and I can place less weight on your areas of less competence. Mistreat me and I will label you as “unprofessional” even if you “did everything right.”

So why do we have this perception that the legal profession is one suffering from a decline in civility? Kara Anne Nagorney, in her article A Nobel Profession? A Discussion of Civility Among Lawyers, presents the view that this decline in civiltiy among lawyers comes from many influences. Ms. Nagorney cites a nation-wide trend of incivility, to which the legal profession is not immune. She also looks at other factors such as the transformation of legal practice from profession to business, the increase of diversity among the members of the bar, the misuse of legal procedure, judicial tolerance, and a distortion of the legal profession by the media. Following the trend of the articles we have been reading, Ms. Nagorney advocates an increase in mentoring, enforcement of civility codes, and the establishment of professionalism curriculum in law schools.

My first reaction is to be cynical. To be blunt… civility means, “don’t be an ass.” From my point of view, whether a person acts with civility is largely impacted by their personality. The personality that they entered law school with is, largely, the personality with which they leave law school. Very few people change drastically in a three to four year period. Some may even say that they became the person they will be “in kindergarten.” Viewing examples of incivility one is left with an impression that the “jerk lawyer” was probably a jerk before becoming a lawyer, and will continue to be a jerk long after the tape stopped rolling. Now, I say that that was my first reaction because I don’t think that we should just toss up our hands and give up.

Much as it is a parent’s responsibility to properly guide his children in their formation into adulthood, so too I believe that it is an important function of the legal profession to continually impress upon it’s membership to strive for better: in job skills, in ethics, and in civility. So, while I believe that incivility is a problem rooted deeply in a person’s personality, I also believe that it is imperative upon the profession to make it clear that that type of behavior will not be tolerated. I am not advocating that the responsibility for these matters should be abdicated to some sort of “civility police”, but rather, I feel that it is incumbent upon each member of the profession, individually and collectively, to foster civil behavior, and to not shy away from calling someone out on their un-civil behavior.

Earlier this year I had the privilege of hearing Mr. Robert Josephsberg and Professor H. T. Smith speak on the topic of civility. These two attorneys are legends in the South Florida legal community not only for their legal acumen but also for their professionalism and their civility. Mr. Josephsberg and Professor Smith are true gentlemen.  They are attorneys to watch and emulate. I enjoyed hearing them speak and especially the recounting of their various anecdotes. What stood out from their message was that you can be a “tough” lawyer and passionately pursue your client’s interests while still being civil. I especially noted that both Mr. Josephsberg and Professor Smith made a distinction between the opposing counsel and your client’s legal adversary.

The dispute is between the parties… not between the lawyers.

It was impressed upon me that you need to act with civility and professional conduct even if your supervising attorney or partners in the firm you work for do not.  I also appreciated the distinction between mentoring in other professions and what they recommended in the legal profession. For example, in my current profession, a mentor would guide me in what to “do”. They suggested that in my transition to the legal profession I find a mentor to guide me in how to “be”. “Find someone that is the type of lawyer you want to become,” they said. It was an inspiring discussion and these two gentlemen re-affirmed my decision to enter the legal profession.

Find someone that is the type of lawyer you want to become.

What do you think?

“The good old days weren’t always good and tomorrow ain’t as bad as it seems.”
- Billy Joel “Keeping the Faith”

Professionalism, ethics, and civility in the profession of law has gotten a lot of “air time” with the current generation of lawyers. My first reaction to this sentiment is to roll my eyes and give a sigh. I see a group of professionals lamenting over the loss of the “good old days.” I have, in the past, fallen into the rote responses – of course lawyers cheat and lie, of course lawyers fight dirty, there is no such thing as an ethical lawyer. After being in law school for three years, I can now honestly say that being a lawyer is entirely about being professional, being ethical, and being civil.

Professional integrity is the best and only currency that you have as a lawyer.

To paraphrase from one of my favorite movies, “The American President”, being a lawyer isn’t easy. Being a lawyer is advanced citizenship. You’ve got to want it bad, because it is going to put up a fight. Being a lawyer – a professional, ethical, and civil lawyer – means that you need to be able to zealously advocate for your client. It also means that you may have to tell them, “no.” It means that you are going to have to make the decision between the billable hour and what is just and fair for your client. It means that you have to be able to fight tooth and nail for what you believe in – and realize that opposing counsel is just doing the same.

I listen to attorney Philip K. Lyon give his opinions on why the law profession has become less civil over the last few decades, and I can’t help but hear a man who finds himself squeezed by an ever more competitive professional landscape reminiscing about the “good old days.”  It’s easy to take to a podium and speak with longing of a better time – a time when the profession was less crowded, when everyone was more civil, and when every day in court ended with opposing counsels sharing a few laughs together over martini’s. He addresses the “young lawyers” and tell them that they are rude, uncivil, and unprofessional. He blames the law schools for “putting out too many lawyers.” Without hesitation, I agree with Mr. Lyon that to practice in the profession of law is to practice in a profession that requires ethics and civility. What I do not and cannot agree with is his contention that those currently in the profession are neither civil nor ethical – or at least not to any degree more or less than in any previous generation.

In that respect I agree more with Professor Neil Hamilton:

Arguments by generations of lawyers who graduated prior to the 1980s that ethics were higher and lawyer conduct more civil earlier in their careers, while understandable, are subject to the charge that such an “ethical golden age” did not exist, and in fact there were serious ethical problems of scoundrels, discrimination, and lack of diversity in the earlier time period. Claims of more ethical conduct or more civility in earlier periods are difficult to test empirically.

(Hamilton, Neil W., Professionalism Clearly Defined (2007). U of St. Thomas Legal Studies Research Paper No. 07-30; U of St. Thomas Legal Studies Research Paper No. 07-30. Available at SSRN: http://ssrn.com/abstract=1015396)

Don’t take my words too harshly, however. I do believe that in order to foster professionalism, ethics, and civility in each new successive generation of lawyers the dialogue must continue. It is important for us to be mindful of these important facets of our professional identity lest we be doomed to forget them. In much the same way each generation perpetuates their set of values and morals to the next generation through words and example, so too should the legal profession ensure the transfer of these values from generation to generation. In much the same way that businesses have mission statements, religions make a profession of faith, and even down to our New Year’s Resolutions, it is important to concretely synthesize what we “believe in” as a profession. The “Statement of Skills and Values” from the MacCrate Report excerpt illustrates this. Especially for the new lawyer, but even for the “old pro’s”, having, and periodically referring to, a statement of professional purpose such as the type illustrated in the MacCrate report is valuable in maintaining focus in what is often a turbulent profession.

Probably the best summation of my view on this topic was given by Rod Smolla, dean of the law school at Washington and Lee: “I think we’re probably at the beginning of some significant restructuring of the legal profession and consequently law schools. It’s a caricature and a falsehood to say modern legal education doesn’t care about ethics and the role of lawyers in society. But I think many of our structures don’t allow us to deliver to students that which we care about.”

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This post is the first in a series reflecting on professionalism, ethics, and the legal profession. Look for more discussions on this topic in the weeks ahead.