Monday, November 22, 2010

What is Meant by Professionalism? Honesty and Competence

In a series of posts, I have been examining the so-called "tenets of the legal profession" listed in the Vermont Supreme Court's rule requiring every licensed lawyer to attend two hours of continuing legal education on "professionalism" every two years (Rule 3). These "tenets" make their appearance in the rule as a way to distinguish professionalism from ethics. I think that effort ultimately fails and I have been trying to demonstrate why. Today I take up two of those tenets: honesty and competence.

The Court's effort to define professionalism, to set it within its own boundaries separate from ethics, flounders most when it tells us that among the tenets of the legal profession (remember, these are supposed to be not ethics) are honesty and competence. "Wait," you say, "aren't honesty and competence required by the Rules of Professional Conduct? Aren't they specifically ethical requirements?" 

I confess that I do not have an answer, other than that you are right. The suggestion, given the rule's insistence on the difference between ethics and professionalism, is that there is a kind of honesty and competence that is not covered by the ethics rules but is required by professionalism. Just what that might be in hard to guess, however. 

Jim Knapp and I are asking that question about competence in the current iteration of the professionalism road show. Perhaps professional competence means an understanding of the larger social environment within which one serves one's clients. For example, perhaps professional competence means a facility, or at least a familiarity, with contemporary management tools, with cloud computing, with social media. Perhaps. Surely this depends to some extent on the nature of one's practice, but it is increasingly the case that contemporary legal practice requires a level of familiarity and comfort with the range of electronic/technological tools and uses that characterizes the social world in which lawyers live and work. Is this what is meant by professional competence? When asked, our audiences remain silent. What that suggests is that lawyers cannot fathom what competence might mean beyond the kind of legal competence required by Rule 1.1. That does not mean, of course, that there is not a kind of competence that is important but not captured by the ethics rules, but it does mean that asking lawyers to talk about it may take us nowhere.

Much the same could be said about honesty. The honesty rules have recently become the subject of some heated debate, as government lawyers and defense attorneys have both claimed that sometimes criminal investigation requires deception and much of that deception is in some sense "supervised" (if not directly engaged in) by attorneys. Rule 8.4(c) says that "[i]t is professional misconduct for a lawyer to . . . engage in conduct involving dishonesty, fraud, deceit or misrepresentation." That rule is puzzling, however, for few believe it really means exactly what it says. Surely not all dishonesty is proscribed? Must lawyers refrain from telling their kids that Santa Clause delivers presents on Christmas Eve? Must lawyers refuse to tell their spouse that they look good, or that dinner was good, when saying so distorts what the lawyer really thinks and feels? Do surprise parties suddenly become misconduct if the lawyer is asked whether she is actually planning one and denies it (lying through her teeth)? Such a reading might be perfectly consistent with Kantian duty-based ethics, but they cannot be what Rule 8.4 really means -- as the Court itself held in upholding a professional conduct board decision recently, concluding that "the rule was meant to reach only conduct that calls into question an attorney's fitness to practice law."

That analysis means that there is a kind of dishonesty that does not rise to the level of an ethical violation under either Rule 4.1 or Rule 8.4. But is that the area of "honesty" being addressed by professionalism? If so, what would be an example of an act of dishonesty that is not proscribed under the ethics rules but nevertheless should not be engaged in by a legal professional? I do not imagine that the Santa Clause tale or the others mentioned above reveal their tellers as unprofessional -- in fact, it seems that these tales (or little white lies) are specifically outside the realm of professional conduct altogether. So what exactly does honesty mean as a tenet of the legal profession? 

And that is the ultimate problem, I think. The professionalism rule implies that there is a kind of competence and a kind of honesty that is not required by the ethics rules but is implicated by the tenets of the legal profession -- a kind of penumbra of the core honesty demanded by Rules 4.1 and 8.4. But the professionalism rule offers no guidance whatsoever on what that penumbra looks like, what sorts of behavior it encourages, what sorts of deception are unprofessional (other than, of course, the unethical sorts).

This is shadowy indeed.

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