Friday, November 12, 2010

Rethinking the Professionalism Rule

Several years ago the Vermont Supreme Court promulgated a change to the MCLE rules so as to require lawyers to take two hours of professionalism among their required twenty hours of continuing legal education every two years. [To be fully candid I should note that I was part of the committee that helped draft the professionalism rule -- and what I have to say is a product of continued deliberation on my part about the moral dimension of lawyering, and of my experience over two years of presenting seminars on "professionalism."] In its order, and especially in the Reporter's Note accompanying it, the Court went to great pains to distinguish "professionalism" from "ethics." The latter, we are told, is a sort of moral baseline that lays down the minimal standards to maintain a license to practice law. The former -- professionalism -- is more aspirational, relating to how we should act as lawyers (even though we are not required to do so). In the terms used by the Court, ethics constitutes the floor, describing what we must do minimally, while professionalism is the ceiling, offering the standards toward which we should strive as lawyers. 

The distinction between ethics and professionalism, however, is a hard one to spot, for the two realms touch and overlap, collide and interpenetrate, in innumerable ways. The Court wrestled with the distinction mightily, but found it too difficult to pin down. Professionalism, they tell us, relates to "conduct consistent with the tenets of the legal profession," and in case you are unsure what those might be, they give us a list: "civility, honesty, integrity, character, fairness, competence, attention to mental and physical health, public service, and respect for the rule of law, the courts, clients, other lawyers, and parties." 

It is hard to figure out where to start with this list, for far from answering our questions it only generates new ones. What makes these "tenets" specific to the legal profession? Surely all people (I want to say "ethical" people) should be civil, honest, fair, and respectful -- there is nothing specific to the legal profession here. One could even make a case that all decent people in a constitutional democracy should have respect for the rule of law -- again, nothing particular to lawyers in that. 

Though public service is broad, and begs the question as to what actually constitutes service to the public (coaching Little League? providing pro bono legal services? being an upstanding member of the legal community? running for office? working for a government agency?), it does make some sense to suggest that lawyers should serve the public. Of course, most theorists of democratic citizenship would say that all citizens have a duty to serve their communities, so once again, there may be nothing peculiar to lawyers here. 

And, as for attention to mental and physical health, surely this is no more applicable to lawyers than it is to anyone else. Worse, perhaps, is that the phrase itself is remarkably ambiguous. How is mental and physical health to be defined? What does it mean to "attend" to it? If I am overweight, plagued by high cholesterol and blood pressure, and stressed out, does that mean I am unprofessional? Or am I only required to notice that I have these unhealthy conditions and, perhaps, to be worried about it? A couple of years ago when Jim Knapp and I were presenting a seminar on professionalism to public defenders, someone raised the nearly explicit moralism of the rule, which implies that if you suffer from health issues, whether mental or physical, you are somehow less professional than someone who does not. Such moralism may be consistent with dominant trends in a certain social class in society, but that hardly makes it a tenet of the legal profession anymore than it is a tenet of any other group in society.And like other forms of moralism, it has troublesome implications in an open society that emphasizes individual liberty and eschews the authoritative imposition of moral beliefs on citizens.

Other so-called "tenets of the legal profession" raise even weightier issues, I think, and deserve additional thinking and re-evaluation. Stay tuned.

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