The Ten Commandments of Professionalism: A Misguided Effort
Elizabeth A. Alston

If the Louisiana State Bar Association Code of Professionalism were written in a Biblical format, it might read as follows:

1. Thy word is thy bond. Thou shalt not intentionally mislead the court or other counsel. Thou shalt not knowingly make statements of fact or law that are untrue.
2. Thou shall clearly identify for other counsel changes thou hast made in documents submitted to thee.
3. Thou shall conduct thyself with dignity, civility, courtesy and a sense of fair play.
4. Thou shalt not abuse or misuse the law, its procedures or the participants in the judicial process.
5. Thou shall consult with other counsel whenever scheduling procedures are required and shall be cooperative in scheduling discovery, hearings, the testimony of witnesses and in the handling of the entire course of any legal matter.
6. Thou shalt not file or oppose pleadings, conduct discovery or utilize any course of conduct for the purpose of undue delay or harassment of any other counsel or party. Thou shall allow counsel fair opportunity to respond and will grant reasonable requests for extensions of time.
7. Thou shalt not engage in personal attacks on other counsel or the court. Thou shall support thy profession's efforts to enforce its disciplinary rules and shalt not make unfounded allegations of unethical conduct about other counsel.
8. Thou shalt not use the threat of sanctions as a litigation tactic.
9. Thou shall cooperate with counsel and the court to reduce the cost of litigation and will readily stipulate to all matters not in dispute.
10. Thou shall be punctual in thy communication with clients, other counsel and the court, and in honoring scheduled appearances.

The code is a judgmental moral one. And while compliance is not mandatory, it is no surprise that the code contains “Ten Commandments.” It is the cry of lawyers tired of beating up on each other - or maybe, it’s just the lawyers who are tired of being beaten up. It is an expression of dissatisfaction with the basic principles of the adversary system. It is also self-absorbed, narcissistic whining. A self-comforting indulgence. It is irrelevant to that which should be the true goal of professionalism, to make our justice system work better.

The Business of Law Practice

The practice of law is now a business. And what is this business about? It is about providing satisfaction to the consumers of legal services. I don’t hear any of them yammering about the need for better professional relationships between lawyers. Clients don’t want us to be nice to each other. They want us to beat each other up. Clients are distrustful of lawyers’ chumminess, especially in court. That’s why you’ll hear clients say thing like “Why is my lawyer spending more time talking to the other side than she is talking to me?” or “I think my lawyer likes the other side’s lawyer better than she likes me.”

Maybe the civility movement is a search for more meaning in what we do. The full-tilt jousting match of our litigation system is bruising. It drains us. It burns us out. Except for the financial rewards, it often seems meaningless. And the financial rewards can be fickle or even destructive: sometimes luring us into lifestyles that do not raise our level of happiness and in which we feel trapped.

Improving the Justice System

If professionalism’s true goal is or should be to make our justice system work better, then why aren’t we focusing our attention on those efforts most likely to improve it? Why aren’t we addressing one of the greatest shames of the American justice system: the under-representation of the indigent accused in our criminal courts? Instead of spending an hour a year in civility seminars, why aren’t we devoting hours a year to making the justice system more just?

Some of us do devote time to improving our justice system. Some of us are dedicated to the principle of pro bono representation. And others of us are so worn out just making our practices profitable and trying to do the best job we can with our cases, that we aren’t really taking care of our own needs, much less the needs of others.

Truth, Justice, Power and Greed

I submit that the professionalism movement is a striving toward a common sense of values. But what values? I commend to you the book The Moral Compass of the American Lawyer: Truth, Justice, Power and Greed by Richard A. Zitrin and Carol M. Langford. What experienced judge or lawyer believes that truth and justice are the consistent result of our litigation system? Even at the simplest levels of fact-finding, how easy is it to definitively determine absolute truth? It is axiomatic that four witnesses to any accident will give four different versions of the event.

Justice is even more problematic. As an advocate, the lawyer is expected and often required to argue a point that may be, or flat out is contrary to the truth. This role, and mastery of the tools and techniques by which it is played, may be eroding the very souls of this country’s lawyers. We are faced with pronouncements such as the following from Chief Justice William Rehnquist in Walters v. National Association of Radiation Survivors in 1985:

Under our discovery system the role of counsel is not to make sure the truth is ascertained but to advance his client’s cause by any ethical means. . . . [C]ausing delay and sowing confusion not only are his right but may be his duty. (Add citation)

Power in itself is neither intrinsically good nor evil-it depends upon its source and the methods by which it is employed. Yet, as history has shown, power can corrupt. In our society, run as it is by the legal system, lawyers have a greater opportunity for the exercise of power and therefore the greater opportunity to exercise it in a bad way.

Greed, I submit, becomes a greater temptation when other rewards are absent, such as meaning, balance, fulfillment and peace.

No wonder we experience a lack of meaning, and miss a sense of fulfillment in our profession. At the same time, we are hard pressed to come up with any better system of justice, one that will not force us to surrender our belief in individual rights and liberties upon which the system is based.

The Transformation of the Practice

The practice of law has gone through amazing identity transformations in the last forty years. During the 50s and 60s, lawyers were both the agents of societal change and the defenders of the establishment. Through civil rights litigation, from Brown vs. The Board of Education to Roe vs. Wade, lawyers and judges were the agents of profound social change. These changes affected the everyday life of many Americans.

In the late 70s and the decade of the 80s, the profession of law became the business of law. Ironically, in some measure this change arose from the increased use of litigation in our society, starting with the civil rights era. Americans became accustomed to tackling inequities in the courtroom. The adversary system encourages-indeed it functions by-the assessment of blame and responsibility.

It became very profitable to sue to right wrongs - attorneys’ fees became recoverable by federal statute in civil rights and employment discrimination cases, among others. It also became profitable to defend these cases.

Yes, over the last few decades, the roles and responsibilities of the American lawyer have shifted dramatically. The role change of the American lawyer is reflected in the changes to lawyers’ ethics codes. In 1969, the American Bar Association passed the Model Code of Professional Responsibility, which was subsequently adopted in most U.S. jurisdictions. One of the nine principal canons of this Code was “A Lawyer Should Represent a Client Zealously Within the Bounds of the Law.” The word zeal or zealous is mentioned nine times in the Code, usually exhorting a lawyer to act zealously.

In 1983, though, the ABA passed a substantially different set of standards, the Model Rules of Professional Conduct. Under these rules, now the primary source for the regulations in over forty states, the word zeal appears only three times, twice to admonish the lawyer to balance zeal with other duties. The new rules replaced the duty to act “zealously” with the duty of “diligence.” The comment on diligence says: “A lawyer should act with commitment and dedication to the interests of the client and with zeal in advocacy upon the client’s behalf. However, a lawyer is not bound to press for every advantage that might be realized for a client.” (Richard A. Zitrin and Carol M. Langford, The Moral Compass of the American Lawyer: Truth, Justice, Power and Greed (1999) at 65.)

However, as the authors of The Moral Compass have commented,

The zealous advocacy standard, discredited and abandoned in the 1980s in most states’ ethics rules, retains its vitality through its continued use in decisions written by judges wedded to this obsolete definition of the adversary theorem. Many of the worst abuses lawyers have inflicted on society have come under the banner of zealous advocacy, often with the judiciary as its herald. (Id. at 233.)

Professionalism seems to me to be the result of a wish, a striving, for greater fulfillment in the practice of law. But the focus too often seems to be on the other lawyer. Every time I make a professionalism presentation, a great deal of time is taken up by members of the audience griping about other lawyers’ tactics.

Professional fulfillment has to come from within - from a balanced perspective on the practice of law, the justice system, and our individual role within it. We have to be clear as to who we are and why we are doing what we do. If we don’t like what we do or why we are doing it, we need to take a penetrating look at changing something.

We need to take care of ourselves and our needs - our physical health, our emotional well-being, our spiritual lives. We need professional satisfaction.

Lawyers have the highest suicide rate of any other occupation in this country - we passed up the dentists a couple of years ago.² And we are especially susceptible to alcohol and drug abuse.

Judging Ourselves and Others

Our legal system today is not about taking responsibility for our own actions - it is about assessing blame on somebody else for everything that ails us. This attitude of the general public, fostered by the scores of legal professionals who will take their cases, is a societal disease. And lawyers are the carriers of that disease.

But we have caught the disease as well. We look at our adversary role, not the overall effect of it. And ultimately, many of us become very dissatisfied with what we do for a living.

Religion is the search for meaning. It is the search for ultimate meaning, as well as the search for everyday meaning. The moralism of the code of professionalism has sprung from the void of meaning in the American legal profession today.

Why do I say that professionalism is a religious movement within the legal profession? It has all the signs of it: adherence to a creed, moralistic judgmentalism, and a belief that if its tenets are followed, the world (or at least the legal world) will be saved. Who are its preachers? Those who portray themselves as “holier than thou.”

But what are the prospects for conversion to the faith of professionalism? I have led many professionalism seminars, and every time I hear it said: if you didn’t get it growing up, you’re not going to get it now. This statement illuminates, perhaps better than I can, the true nature of the professionalism movement: it is a movement driven by core, personal values. The problem is that it is a misguided movement. It cannot solve the problem it postulates, because it mistakenly frames the issue.

I am not against religion. I am, in fact, a deeply religious person. I am saddened by a profession that is bankrupt of values, and that seeks to patch its spiritual holes with etiquette. I honor and promote those lawyers who act out of their deepest convictions and spiritual values. How they behave in court, to their clients, and to their adversaries, does and will continue to flow naturally from those values.

Essential human nature is unchanging. We cannot “preach out” power and greed from the American lawyer’s moral compass, anymore than we can excise truth and justice. We can, however, develop a more mature wisdom about the true nature of the practice of law. We can quit putting ourselves on pedestals, and quit expecting ourselves to be any better than any other human creature. We can grow up and take responsibility. The only persons we can change are ourselves.

Can you legislate morality? Can you improve morality through an aspirational code? Is it likely that labeling behavior as “unprofessional” will prevent it? I don’t think anyone in the American legal profession really believes that.

We can quit whining about what “lowlier” lawyers do to us. This is simply a selfish ego trip. We have the best justice system in the world. There are more safeguards and guarantees of individual liberties in our country than anywhere else, now or in history. We should reflect more deeply upon the gifts of our legal system, and contemplate how we each might foster and nourish those gifts. Instead of blaming others for its imperfections, we might take personal responsibility ourselves for making it more perfect.

Conclusion

The average lawyer, in my opinion, feels embattled and disenfranchised. The majority of lawyers in this America are sole practitioners or practice in very small firms. They do not believe that their state bar association or the American Bar Association speaks or acts on their behalf. Their greatest camaraderie may take place in a local bar association, or as a member of the “courthouse gang.” Even in these groups, there is an inevitable competitive tension with our colleagues.

Humans have always resorted to battle for conflict resolution. The battle of the courtroom is an evolutionary step away from the use of physical violence to resolve disputes. Perhaps character assassination has replaced outright murder. Perhaps brutal cross-examination has replaced actual physical torture. Perhaps a windfall verdict has replaced the irrational benevolence of a monarch.

But, as the authors of The Moral Compass say: “Winston Churchill’s observation about democracy still applies to our legal system: It’s the worse known, except for all the others.” (Id. at 234.) How can our legal system be improved upon? In many ways, to be sure, but not down the dead-end path of the professionalism movement.

2. Keeva, Steven. Transforming Practices: Finding Joy and Satisfaction in the Legal Life (ABA Journal: 1999), p. 5.