Oregon State Bar Bulletin — JULY 2010

We know unprofessional behavior when we see it, but recognizing when a lawyer veers off course is easier than charting the borders where professionalism begins and ends.

Members of the Oregon State Bar had the opportunity to weigh in on how they define those parameters when the OSB sponsored two separate professionalism surveys, in 2005 and 2009. Sample groups of 500 members were sent surveys in 2005, and 212 members took up the offer to respond. The 2009 survey went out to 669 members, 313 of whom returned answers. Both return rates are considered above-average, and all responses were collected anonymously.

The surveys’ sponsors — the OSB and the Oregon Bench and Bar Commission on Professionalism — say the select groups surveyed matched the overall demographics of the bar, and thus represent a good sample of the opinions of the membership at large. Further, sponsors say the results are accurate enough in their method to provide a temperature check of what the membership believes constitute the issues of professionalism.

The idea to survey lawyers and judges about how they view the current state of professionalism was the brainchild of former Oregon Supreme Court Chief Justice Edwin J. Peterson. He recalls that soon after he took the helm of the court in 1983, he spoke before a local bar association. Peterson’s topic was professionalism, and how he saw a declining level of civility in the bar. The group’s reaction to the speech told him his theme had struck a chord.

A formal article by him in the Bulletin followed, the piece was reprinted several times nationally, and as a result, “I was identified early on with the importance of lawyers acting in a professional way,” says Peterson, who retired from the court in 1993. His dedication to that theme expanded in several directions, and ever since then he has been committed to making professionalism and the practice of law synonymous.

Five years ago, he suggested the idea of surveying members in order to gain an objective view of current perceptions. “My thinking was, if we have a survey we repeat every few years, we would be able to get some idea of how well or how poorly we are doing,” says Peterson, who nowadays is a distinguished jurist in residence at Willamette University College of Law in Salem.

“It’s an ambiguous word,” he allows, but “at bottom, professionalism is a word to designate a quality of life characterized by civility and courtesy” and being prompt — with clients as well as with adversaries.

Peterson says that for years, the commission encouraged law professors to weave the topic of professionalism into their curriculum, and some said it was a good idea but they didn’t have time with the many other topics they had to cover. But he said his point was that “professionalism is involved in every area of the law.”

Peterson, who teaches pretrial civil litigation at Willamette, takes his own advice: In the large packet of materials each student receives in his class, “right up front is the Oregon State Bar’s Statement of Professionalism. We discuss it in every single class.”

He observes that the “popular perception among law students is that, in the real world, it’s dog eat dog.” But his response to this notion is this: “The best, most effective lawyers are the professional lawyers. It also helps the bottom line: The clients are going to have a better impression if lawyers conduct themselves in a professional manner.”

The Survey Results Compared

Most of the questions on the 2009 survey duplicated those from the 2005 survey, allowing comparisons to be drawn between the respective responses. However, sponsors emphasize that the respondent groups were chosen randomly for each survey, which assured a fresh perspective each time.

The two surveys showed similar results, with bar members’ views of professionalism appearing to remain consistent over the past four years. The character traits respondents deemed “most important” and “most harmful” remained the same for both surveys. Only the 2009 survey included questions about judges, so no direct comparison can be made for that category.

For the 2005 survey, the key findings were as follows:

A strong majority — more than 80 percent — thinks Oregon lawyers generally are competent. But in the area of integrity, only 31 percent thinks lawyers generally are willing to reveal mistakes, while 34 percent thinks they are not. A slim majority (52 percent) says lawyers generally do not pursue issues without merit, while 26 percent disagrees. Respondents rated lawyers on timeliness fairly highly, with the clear exception of procrastination, which 44 percent cited as a problem.

The weakest rating related to courtesy and respect was a 22 percent disagreement that lawyers generally notify parties of scheduling conflicts. Only 31 percent agrees that lawyers dedicate appropriate time to pro bono work. Of the standards covered in the OSB Statement of Professionalism, respondents identified the most important as integrity. The shortcomings in standards that present the most problems are lack of courtesy and respect (31 percent) and lack of integrity (25 percent).

For the 2009 survey, respondents again overwhelmingly said they think Oregon lawyers are knowledgeable and competent. Respondents indicated that Oregon lawyers are knowledgeable in their substantive area of practice, as well as in the rules and procedures of their area. Under the category of integrity, although most respondents agreed that Oregon lawyers are honest and follow the rules of the court, responses indicate that some lawyers are not trusted to reveal their mistakes — this trait received the lowest score in this category, with 32 percent saying they disagreed and 32 percent agreed.

Confronted with the statement that most attorneys generally only pursue issues with merit, 50 percent agreed, but 21 percent disagreed. The highest individual rating in this category was for “Oregon lawyers respond in a timely manner to tribunals’ requests.” The lowest rating was for “Oregon lawyers do not procrastinate,” with 25 percent disagreeing with the statement and 40 percent agreeing.

Courtesy and respect received acceptable marks. All specific questions in this area garnered a positive average, including “Oregon lawyers notify parties of scheduling conflicts” and “Oregon lawyers are courteous to clients, opposing counsel, etc.”

Under the category public interest, “Oregon lawyers promote respect for the rule of law and the legal profession” received the highest mark, but “Oregon lawyers dedicate appropriate time to pro bono work” received the lowest marks, with 23 percent checking disagree and 33 percent agree.

Respondents were given a list of characteristics and were asked to choose which one they consider most important. Integrity was deemed most important by 70 percent, followed by competence (19 percent), courtesy and respect (11 percent) and support for public-interest work (less than 1 percent).

Respondents were also asked to choose which characteristic, or lack thereof, causes the most problems for the bar. Lack of courtesy and respect received 25 percent of the votes, followed by lack of integrity (21 percent), lack of competence (14 percent), low support for public-interest work (11 percent) and failure to be timely (11 percent). However, 18 percent chose “none of the above” as the biggest problem, which probably means one of two things: either they didn’t believe any of these are big problems in Oregon, or they believed that none of these problems is the biggest compared to the rest.

Women overall gave lawyers higher ratings across all categories except for courtesy and respect, for which they granted lower ratings than did men in all that category’s subtopics. This is similar to the 2005 results, where female respondents were more likely than male to cite “lack of courtesy and respect” as a problem in the state.

In addition to questions about Oregon lawyers, the 2009 survey included categories for respondents to answer regarding three different groups of judges: trial court judges, appellate court judges and administrative judges.

When Court of Appeals Judge Timothy J. Sercombe joined that court three years ago and became a member of the professionalism commission, the commission was developing the second survey. “When we designed the 2009 survey, we added questions about judges,” and modeled the queries partly by borrowing from a survey taken in 2006 of lawyers and judges by the Court of Appeals, he says.

Sercombe supported the decision to include questions about judges. “I think it’s important to get information from the bar about how well judges are doing,” he says. “I very much think it’s appropriate for the bench as a whole for the system to give feedback about what the court is doing well and what it needs to do better.”

The survey responses about judges didn’t surprise him, especially one showing that promptness by appellate court judges in making decisions has room for improvement.

“In terms of caseload, it’s very huge,” he said of the appeals court. “We try our best to get decisions out in six months, but we are not always successful in doing that.” But he called that survey response “a justified judgment,” and said part of the reason for delays is a lack of resources. He says the Court of Appeals is “one of the biggest in the country in terms of cases per judge and what each judge does,” issuing 45 to 60 opinions each a year, and altogether 500 opinions annually, with 4,000 cases presented and 2,000 decided.

Interpreting the Results

Circuit Court Judge Daniel L. Harris of Medford, who has been a member of the Oregon Bench and Bar Commission on Professionalism since 1999, observes that since the late 1960s, “there has been a slide in civility in general, and the legal profession has been a victim of that.” However, partly as a result of the activities of the commission and the development and promotion of the Statement of Professionalism, “there has been a resurgence in the state of refocusing on these principles.”

In addition, Harris does not think examples of unprofessional behavior are common here, owing to the smaller population, a factor that tends to encourage people to be more civil to one another. “In the state of Oregon, we have a culture that encourages professionalism,” he says. “We’re probably an exception to the trends that have taken place elsewhere.”

He does think, though, that differences exist when the metropolitan area is compared with the rest of the state. Having previously practiced in Portland and worked with the Multnomah County bar and lawyers from large metropolitan areas, Harris says that in a large jurisdiction, where you are less likely to see the same opposing lawyer again, “there’s more of a temptation to not adhere to those principles.” By contrast, in a smaller jurisdiction such as Medford, lawyers are more apt to see each other again and again, and “for that reason, relationships develop,” he says. “They’re more inclined to get along. When you see other people on a regular basis, you tend to be more cooperative and treat them well.”

 

That geographic and cultural difference is why the Multnomah bar developed guidelines governing depositions, he says. “We don’t have those in Jackson County, because there is no need.” Rules are needed in the Portland area, because if there are no previous relationships with the other side, “things can get out of hand,” Harris says. “If you know the people we deal with all the time, it’s not an issue we feel we need to address with guidelines.”

In addition to the gender differences that showed up in the two OSB surveys, other differences can be seen in the courtroom, he has observed. “In general, women (lawyers) seem to be more collaborative and work better at finding solutions short of trial.”

Harris himself has made substantial contributions to advancing the cause of professionalism. Besides being a longtime commission member, he chairs its continuing legal education committee. In 2002, he proposed to the commission that he wanted to prepare a brochure that contained a list of principles and guidelines relating to professional conduct. He asked the OSB to help him put his statement into pamphlet form, and the bar first published the pamphlet, called “Professionalism for Litigation and Courtroom Practice,” in spring 2003. (See box.)

In 2006, John V. Acosta, now a U.S. District Court judge, became a member of the commission and offered a few points that he thought would be good additions to the brochure. Harris and Acosta then collaborated on the revised version, which was published that year. The pamphlet has been distributed at law school presentations each year since 2003, at CLE programs Harris has been involved with in Multnomah, Washington, Deschutes, Jackson, Lane, Marion, Lincoln and Josephine counties. In addition, “We have presented professionalism programs using this pamphlet twice at the annual judicial conference and at four different regional judicial conferences,” Harris says. And, as part of a seminar on promoting principles of professionaliam that he presents each year to new circuit court judges, Harris has been handing out packets of the pamphlets for the past six years.

He notes that the commission has employed a three-pronged approach in spreading the word about professionalism: to attorneys, judges and law students. All three Oregon law schools now incorporate professionalism instruction and awareness into their programs. This inculcation begins on students’ first day of school, when lawyers and judges attend to remind students that the students now are members of a respected profession, says Steve Johansen, a professor at Lewis & Clark Law School and a member of the professionalism commission.

Lewis & Clark also holds roundtable discussions twice a year, picking a particular topic on professionalism and inviting speakers to lunch to discuss the selected issues. Also, every semester Johansen discusses professionalism as part of the course he teaches on ethics. And the past couple of years, the school has held a program with the Multnomah Bar Association called “What You Didn’t Learn in Law School.” This is to help students who are near graduation transition into practice and is held off campus such as at a law firm, where students meet with lawyers and judges.

“The commission’s view is that the best way to improve professionalism is to start with students,” he says. “We really do try to emphasize that from day one.”

Without fail, the first question law students and CLE participants alike ask about professionalism is how to deal with difficult lawyers, says Harris. “It’s always a challenge when competing against another lawyer who does something underhanded. If the other lawyer is mean-spirited and tries to play games, don’t play the game by the same rules,” Harris advises. “Don’t let them take away your game plan. The most effective lawyers are the ones who don’t let others distract them from their game plan.”

He recently presided over a case where an “atmosphere of distrust that had developed over time” came to poison the proceedings. Every action taken by the other side was greeted with distrust by the opposing counsel.

“I had to intervene very directly, and remind them that they are lawyers, and more is expected of them if they would be respected by the jury.” Harris even brought back the jurors to talk with the lawyers after the trial. Jurors told the attorneys that they had acted unprofessionally, and that their behavior had affected their cases negatively. “When they see lawyers act out and not act steadily calm and professional, they’re impacted by that,” he says. “They just expect something different from lawyers.”

Twenty-seven years after Peterson brought the issue of professionalism to the fore, “the concern about the lack of civility among lawyers has not declined,” Peterson says. “I think there is still concern about lack in the civil discovery area, a lack of cooperation and excessive discovery.”

He regularly asks his law students: “Suppose that you’re representing the defendant, and you want to take the plaintiff’s deposition. What is the first thing you do?” Peterson hopes that, rather than recite the legal statute governing how depositions can be obtained, some student will offer the solution Peterson himself used when he practiced law in Portland for over two decades:

“The first thing I do is call the plaintiff’s lawyer and see if we can do this by agreement,” he says. Courtesy exchanged with the other side is an important first step in demonstrating that you act professionally, he says, and by doing so, you in turn invite the opposing side to reciprocate.


ABOUT THE AUTHOR
Cliff Collins is a Portland-area freelance writer and a frequent contributor to the Bulletin.

© 2010 Cliff Collins


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