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 bevans@kendrickslaw.com 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
