A Lawyer=s Responsibility



A Lawyer’s Responsibility

Carl H. Lisman

Lisman, Webster & Leckerling, P.C.

Burlington, Vermont

Introduction

There was a time when lawyers were held in esteem in this country. The lawyer enjoyed a position of status and had a respected voice in community affairs. His advice was sought out and often followed. That was true without regard to geographic region or location, whether large city or small town, or whether the lawyer had a law degree or had read for the bar.

That is no longer true. Since the 1970’s, the public perception of lawyers has significantly soured.[1] Mostly, it’s our own fault. And, I believe, it can be attributed to the failure of American lawyers to demonstrate the degree of professionalism that our predecessors held dearly as the sine qua non of lawyering.

What is that “professionalism” that we’ve lost? Scholars have debated this for years; and repeating what they have written is neither productive nor particularly useful to the transactional lawyer.[2] What follows is my own analysis.

A good starting point is to describe what “professionalism” is not. It is not professional ethics. The Code of Professional Responsibility and similar rules governing lawyer conduct, coupled with court formulations of what constitutes malpractice, are together the minimum standards which all lawyers must observe. Failure to observe the former may result in discipline, including disbarment; failure to observe the latter may result in financial loss. Neither is “professionalism.”

Professionalism is the higher standard a lawyer sets for himself or herself: It is doing right --- for the client, society and the profession --- well. It is made up of multiple elements, but starts with integrity, moves into civility and is cloaked by skill and expertise.

The Building Blocks of Professionalism

Integrity. The dictionary definitions include “soundness of moral principle,” “uprightness”[3] and “honesty.”

Sam Rayburn gets the credit for the classic line: “There are no degrees of honesty. Either you are or you aren’t.”

Civility. Too many of us have forgotten that we are the representative of the client, not the client, and that our role is to advance the interests of the client. At some time we forgot that politeness, friendliness and openness are worthy traits and more likely to accomplish the results we seek.

Skill. We are both advocates and advisors. Too many lawyers have forgotten their role as counselor.

The Elements of Professionalism

• It is doing right well by --- and for --- the client.

Case Study: Keywell Corporation v. Piper & Marbury, L.L.P., 1999 WL 66700 (W.D.N.Y. 1999)

• It is doing well for society.

Case Studies: Blue Hills Office Park LLC v. J.P. Morgan Chase Bank, 477 F.Supp.2d 366 (D.Mass. 2007)

Seltzer v. Morton, 336 Mont. 225, 154 P.3d 561 (2007).

• It is doing well for the profession.

Case Studies: Penthouse International, Ltd. v. Dominion Federal Savings & Loan Association, 855 F.2d 963 (C.A. 2d. 1988)

Hansen v. Anderson, Wilmarth & Van Der Maaten, 630 N.W. 818 (Iowa 2001)

Conclusion

It’s easy to pontificate. It’s easy to point fingers.

What’s difficult is to establish, and then live by, professionalism in pursuit of the best interests of our clients.

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[1] According to comedian Stephen Wright, 99 percent of lawyers give the rest a bad name.

[2] A good primer is set out in Chapter I of Rhode & Luban’s Legal Ethics (4th ed. 2004). The ABA Commission on Professionalism reported in 1986 that “professionalism is an elastic concept, the meaning and application of which are hard to pin down. That is perhaps as it should be.”

[3] I am convinced that we lost the patina of “uprightness” when the Supreme Court, in Bates v. Osteen, 433 U.S. 350, 97 S.Ct. 2691, 53 L.Ed2d 810 (1977), allowed lawyers to advertise. At that moment law became more of an occupation and less of a profession. Bates allowed us to sell our services in the same way as used car salesmen sell cars. Instead of esteem, lawyers became subjects of derision. Soon thereafter the television networks discovered that viewers were more likely to watch L.A. Law than The Defenders. Youngsters seized the wrong model as justification for a law degree and further perpetuated the negative image.

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