Sunday, March 30, 2014

Should There Be Standards of Professionalism for Employing Attorneys?

The following posting is made with permission from the State Bar of Wisconsin who originally printed it as an article with the same name included in Young Lawyer Division News, State Bar of Wisconsin, March 2014, Vol. No. 17, Issue No. 2:

Professionalism is one of those concepts that most lawyers have a sense of but is nonetheless hard to define.  It is fitting that I am writing this article on a Sunday morning when I should be in church and the best analogy that I can come up with to describe what I mean by professionalism is one that my pastor recently used to describe something else.  In terms of a lawyer’s skill, judgment, and behavior, striving to be professional is sort of like what coaches mean when they tell their players to play to win rather than playing not to lose. 

Standards of professionalism are aspirations, goals or guidelines rather than rules.  There are good reasons for this flexibility.  Guidelines do not claim to be applicable in every situation.  You can set standards higher than you would set rules because the point is to set a goal, rather than a floor, for conduct.  Google standards of professionalism and you will no doubt find proclamations from state and local bar associations around the country.  Read them and ask yourself, “Are you following these canons?” My internal monologue: I will try to avoid sarcasm in arguments.  I will try to avoid sarcasm in arguments.  I will try to avoid sarcasm in arguments.  I’m not perfect.  However, it’s nice to have something to make you question your own actions and to have something to aspire to.

I was recently appointed to the Challenges Facing New Lawyers Committee (the “Committee”) of the state bar, which is charged with developing and presenting action items and concrete proposals to the Board of Governors (“BOG”) to address the issues identified in the Challenges Facing New Lawyers Task Force Report and Recommendations (the “Report”), which was recently released and highlights the very real struggles that many new lawyers are experiencing.  One of the subgroups of the Committee that I am involved with is focusing on governance issues.  These included ideas mentioned in the Report like having more—there is presently only 1—specifically designated young lawyers seats on the BOG and having young lawyers elect their own representative to the ABA House of Delegates.  Currently, BOG selects who holds Wisconsin’s young lawyers seat on the ABA House of Delegates.  I wrote about that issue last April in this newsletter in an article entitled, “Leadership, Elections & Bar Politics.” 

The Committee is not constrained to the ideas mentioned in the Report.  Two additional ideas that I have floated are having a specifically designated young lawyer seat on the board of every section of the state bar and having the professionalism committee re-established—it was recently eliminated—to develop standards of professionalism for employing attorneys.  The Committee as a whole has not yet adopted these ideas.  This article is part of the politicking for the latter idea.

There should be standards of professionalism for employing attorneys.  In today’s difficult economy, employers seeking to hire attorneys have a large pool of applicants upon which to draw.  Young attorneys know, and sometimes they are flat out told, that they are “replaceable”.  The worry is that with employers having so much power in an over-crowded legal market, the norm for what is acceptable behavior in the employer/employee relationship will slide.  Setting standards of professionalism regarding this relationship will not cure all of the problems young lawyers face, but it may help with some of them. 

Let me explain by example so that I am not being completely abstract.  I remember as a young attorney flagging what I believed to be a huge ethical problem with respect to a particular course of action that I was being told to follow.  I raised the issue with the attorney supervising me and attempted to talk it out with him.  He saw no issue and eventually hollered, “Ethics is a waste of time!” and stormed out of my office.  Now, as it turns out, like many young attorneys do, I was over analyzing this particular issue.  There was no ethical problem, and I reached that conclusion by discussing it with a mentor. 

My supervisor had satisfied his professional duties under SCR 20:5.1 because he correctly reached the conclusion that I was wrong.  However, taking it a step further, and having the patience to talk it out with me (which definitely requires patience) as my mentor did, is something that I believe all lawyers who employ other lawyers should aspire to.  Having a standard to that effect would make it easier for young lawyers to approach their supervisors with these issues.  It would give lawyers not following this approach something to think about.  When partners debate what course of action to take among alternatives, having standards to point to helps those advocating for the higher road. 

This endeavor to set standards does not have to focus on the negative with tales of woe.  In fact, I will refuse to allow that to happen because it would almost certain fail if it is seen as an effort to chastise bad behavior.  A positive spin can be placed on almost anything.  Instead of focusing on employers that try to exploit the plight of young attorneys, I will focus on those that are quietly making the situation better.  Another example from my own personal story comes from my time working for my friend, colleague, and mentor John C. Heugel of Green Bay. 

When I met John my personal and professional life was pretty much a mess, and he helped change the trajectory of my career.  I moved from the Detroit area to Appleton and had to take the Wisconsin bar because I did not have enough years of practice to waive in based on my Michigan license.  John gave me a job while I studied for the bar and told me that while he could not pay me a lot he would teach me what he could and he would help me get a job after I got my license. 

John was patient with me and explained things that I did not understand.  He took me to depositions so that I could learn and meet other lawyers even when there was no personal benefit to him.  John set up over ten different meetings with attorneys he knew in Appleton and Green Bay as personal favors to him.  I met these lawyers, discussed possible job openings, and got career advice and insight for finding a job in the Fox River Valley.  John not only helped me get a job as he said he would, he also helped me get another job later on when I needed one, and he tried to get me yet another job after that when it was clear I needed one. 

Shortly before I moved home to Marquette I needed a new job because my employer was dying of brain cancer, I watched John subtly work a room for me at an Inn of Court meeting.  I already knew I was likely headed home, so more than being concerned about the connections he was making for me at that meeting I was in awe of the lengths he went to assist me.  John has always been there for me to discuss any ethical issues or problems I had or to simply bs over sushi. 

I recently made shareholder at my firm so I am now an employer myself.  John sets an almost impossible example to live up to and that is exactly why we should set standards of professionalism that hold up these great traits as benchmarks to aspire to.  I had a lot of different and great mentors in my career and I would be afraid to make a list for fear of leaving someone off it.  If we take the best qualities from employers and mentors around the state and develop a set of standards for all employers to aspire to, then maybe we can make the challenging times our new colleagues face a little less challenging and a little more cordial.           

To help me advocate for these ideals, I would like to hear from you.  Please email me at with any stories you would like to share of conduct that ought to be discouraged or encouraged.  As I said, I will most likely apply a positive spin on anything that I use to make this idea easier to sell.  However, the negative is important to understand on the information gathering level, so please share.  Thank you in advance for any feedback that you can provide. 

© March 2014 Brandon J. Evans