Monday, April 28, 2014

The Importance of Professionalism to Young Lawyers

“[P]rofessionalism is a religious movement within the legal profession…  [and] its preachers… [are] [t]hose who portray themselves as ‘holier than thou.’” Elizabeth A. Alston, The Ten Commandments of Professionalism: A Misguided Effort, The Professional Lawyer, American Bar Association, Summer 2002.  This quote best summarizes my biggest reservation about presenting at a seminar entitled, “Professionalism and its Importance to Wisconsin Lawyers”, which is being held at the State Bar of Wisconsin’s annual meeting this June in Lake Geneva.  I was asked to be part of the presenting panel because of my involvement with, and service as a member of, the Board of Directors of the Young Lawyers Division of the State Bar of Wisconsin.  The group putting together the program wanted someone to give the young lawyer’s perspective and I volunteered. 

I agree that the professionalism movement is based on values and morals, and I believe a focus on professionalism is extremely important to the development of young lawyers.  I don’t claim to be an expert on this topic; I am not perfect, and I hope others do not view me as claiming to be holier than thou.  I admit that, at various time throughout my career, I have behaved unprofessionally.  I agreed to participate in the seminar because I view it as an opportunity to learn from and mentor others.  This article is being written to continue the discussion of this important topic.

The Ten Commandments article is a criticism of codes of professionalism calling them dead-end paths.  The article rhetorically asks, “Can you legislate morality? Can you improve morality through an aspirational code?  [And] [i]s it likely that labeling behavior as “unprofessional” will prevent it?”  To this, I say: yes; yes; no of course not, but hopefully you will lessen unprofessional conduct with an aspirational code. 

Professionalism is moralistic, and that is okay.  The law is full of morality.  Tort law is all about moral wrongs.  And even Elle Woods learned about malum in se, so yes, of course, you can legislate morality.  There are basic values that the legal profession should be able to agree upon as good characteristics all lawyers should aspire to, such as respect for the rule of law, learned knowledge, thoroughness in preparation, practical and prudent wisdom, ethical conduct and integrity, and dedication to justice and the public good. 

Aspirational codes provoke thought rather than providing answers.  You can improve morality through an aspirational code if it is considered, studied, and discussed by the lawyers it is meant to guide.  Ethical rules are minimum standards of conduct that all lawyers must follow.  Some view codes of professionalism as higher standards that all lawyers are expected to follow.  I don’t quite agree with that.  I view professionalism as an aspiration that all lawyers should pursue, but I don’t think of it as something that is ever really obtained, which is sort of the same way I view learning the law.  I often tell people, “You don’t go to law school to learn the law.  You go to law school to learn how to learn the law.”

Aspirational codes help guide lawyers by making them think about the things they should be doing and aspiring to do.  For example, various bar associations tell lawyers they should be providing pro bono public service to the poor.  When I took such proclamations as rules or expectations, they were, frankly, infuriating.  For much of my young career I considered myself poor.  My first job out of law school paid $15 per hour, and I had over $1,000.00 per month to pay in student loans.  So the idea that I owed the poor something because of the privileged profession that I was a part of was maddening.  However, when I sit back and think of these proclamations as aspirations and recognize things have gotten better for me, it is easier for me accept and harder for me to argue with.

Not only are aspirations more flexible than rules because they do not have to be applicable in every situation, aspirations can also raise the bar by setting “standards” higher than you would set rules.  For example, you can set a standard that makes the day-to-day practice of law more civil and enjoyable by encouraging lawyers not to make personal attacks on each other.  However, you could not set a rule to that effect because sometimes the ethical rules require us to bring to the attention of the Court or other bodies the personal actions of the lawyers with which we deal.  Moreover, you wouldn’t want a rule about making personal attacks because that would likely only lead to responses in-kind by providing a basis to call the other lawyer’s conduct into question.  Violations of aspirational codes are not punished or otherwise policed.  Aspirational codes are for self-reflection.  However, professionalism can and does exist without codes.

Bruce Ehlke, another one of the presenters at the professionalism seminar at the annual meeting who is organizing the program, emailed me a nearly one-inch stack of articles and other materials concerning professionalism to help me prepare for my part in the program.  From this material, the article I want to discuss the most is actually one of Mr. Ehlke’s own articles entitled, “Newly Admitted Associates: What They Know And What They Should Be Taught.” Wisconsin State Bar Convention Program, May 10, 2007. 

Therein Mr. Ehlke discusses how one used to become a lawyer by “reading the law” under an apprenticeship system prior to the widespread acceptance of the more formalized education and university based system for becoming a lawyer that we have today.   Mr. Ehlke discusses what lawyers should be learning in school (the law and legal skills), what lawyers should be learning from their mentors (professionalism), and the deficiencies he sees in young lawyers that indicate that neither the schools nor the mentors seem to be doing an adequate job.  His article is not an attack on young lawyers (he does compliments them); it’s more of a call on mentors and schools to do a better job.

I can’t help but feel that the first part of his article suggests that the farther in time we get from the “reading the law” system, the worse our education system becomes and that somehow the mentors and schools were better 30, 40, or 50 years ago.  There is probably some truth in that assessment because there are many more law schools today and with such a great increase in the quantity of lawyers being produced, it would be hard to maintain the quality.  Further, the number of laws and legal authorities has exploded in that same time period, so the practice readiness of new graduates has probably suffered because law schools have more material to cover.  Moreover, given the great increase in the number of young lawyers practicing today, opportunities for law students to learn on the job while in school are probably at an all-time low.  

However, it also struck me that any lawyer who graduated 30, 40, or 50 years ago probably has a hard time remembering how little he or she actually knew upon graduating from law school.  I have a hard time remembering that and I’m only 9 years out of school.  I don’t think that law schools were meant to replace the “reading the law” system completely because lawyers must continually learn the law and must continually strive to be professional.  Each year that I practice, I feel more and more “like a lawyer” as I gain new skills, knowledge, and experience.  I am probably my biggest critic, and I hold the people that have mentored me in very high regard.  I am sure I am not alone in that regard, so Mr. Ehlke’s assessment might be partly explained by the self-criticism inherent in coming from more of a mentor’s perspective than would come from the mentee’s perspective.  Perhaps, he views the mentorship today as lacking compared to the mentoring he received.  However, I have to disagree with the generalization of that view because I have received excellent mentoring in my career.          

Professionalism can be taught.  The Ten Commandments article nicely expressed a criticism of professionalism by repeating the often said, “if you did not get it growing up, you’re not going to get it now.”  I disagree with this sentiment.  Two things that I clearly remember learning from mentors, that have nothing to do with how one is raised but strike me as the right thing to do, include writing arguments in a manner that focuses on the parties rather than the lawyers and demanding control over whether professional courtesies (like extending the due date for responses to discovery) are granted rather than leave such issues to the client.  I had simply never thought of these issues until a mentor raised them with me.

Professionalism needs to be taught in the real world.  When I was in law school and today, I was a big believer in the notion that law schools should focus on theory and that lawyers should learn the practical skills in the practice setting rather than in law school.  This is also probably why I was ill prepared, upon graduation, to be a successful practitioner and, at the same time, it helped me find my niche today.  I enjoy complex litigation because it allows me to get back to the theory of the law on occassion.  However, it took years in the real world to learn how to blend the theory with the practical and I am still constantly chasing the right combination.  

Mr. Ehlke states that law schools should be teaching students how to “think like a lawyer”, and then observed that many young lawyers lack the traits he identified for this concept including ability to distinguish material facts, ability to identify issues that require his or her attention, and ability to write clearly, concisely and persuasively.  I believe these are skills that need to be learned in practice and the refinement of these skills is a vital part of being a professional.

The “thinking like a lawyer” that you learn in law school means being able to identify the legal issues involved in a matter and having a rough idea of the arguments that might be raised.  In daily law school classes there were no answers, only discussion of the issues.  On the final exams, the goal was merely to identify and analyze the issues.  In law school, everything is a billion dollar case where attorney time (fees) did not matter and every issue is worth exploring.    

However, most lawyers never work on a billion dollar case, and attorney fees (time) is one of the biggest issues which he or she must address prudently for his or her clients.  The inherent conflict of interest that a lawyer faces when advising a client to drop an interesting legal issue that is not likely to yield the client a cost effective result is part of the reason law is a profession.  We are often put in the situation where we are advising clients to use less rather than more of our services.  There is (or should be) a unique trust in the attorney-client relationship that makes our profession different from other producer-consumer relationships.  The fact that not every issue should be raised, that sometimes the “winner” loses, and that courts are not always likely to make the “correct” ruling, are just some of the judgment calls that are better made with real world experience.  Practitioners are better suited than law professors to help young lawyers develop the practical and prudent wisdom necessary to tackle these types of issues.

            Professionalism is vital to the development of young lawyers and it should be a component of any mentoring program.  A colleague of mine always says something to the effect of, “A good lawyer sees a fire and he or she knows how to put it out.  A bad lawyer sees a fire and pours gasoline on it.”  When young lawyers complain that there is not enough mentoring, I take their complaints to mean that they want to be taught how to make a living.  When older lawyers complain that young lawyers are not being mentored properly, I take their complaints to mean that they do not like the way young lawyers are choosing to make a living.  Helping the young lawyers around us improves our profession and our lives.