Oregon State Bar Bulletin FEBRUARY/MARCH 2013
In January 2012, the Oregon Supreme Court decided In re Marandas, 351 Or 521 (2012), dismissing a complaint in which the trial panel imposed a three-month suspension for knowingly misleading a court and concealing certain settlement terms. The basis for the court’s conclusion was that the bar failed to establish elements of the violation by clear and convincing evidence. As an essentially factual finding, nothing beyond those conclusions was required to dispose of the matter.
The opinion nevertheless went on to offer the following comments about Mr. Marandas’ actions:
Although we conclude that the bar failed to prove the allegations against the accused by clear and convincing evidence, that does not mean that we condone the accused’s conduct. The accused turned a legitimate attorney fee claim for $24,000 into a multiyear proceeding that involved more than a dozen court appearances, ensnared multiple parties and ultimately cost the accused and the other parties many times the amount that was originally at issue. However, the Rules of Professional Conduct do not, and cannot, guarantee that attorneys will act reasonably and professionally in the multitudinous factual settings of litigation. As this court has noted, “[N]ot every negligent or unprofessional act, no matter how misguided, boorish, or rude, give rise to an ethical violation.” …
Alternatives exist to deal with such conduct, however. Trial courts have the authority to control and sanction improper behavior by lawyers in proceedings before them by imposing sanctions under ORCP 17 or other rules or by awarding attorney fees under ORS 20.105 or as authorized by other statutes. Here, Judge Herndon ordered the accused to pay wife more than $20,000 in attorney fees, because he concluded that the accused willfully had failed to satisfy a judgment and had asserted a claim without an objectively reasonable basis. In other litigation contexts, sanctions by trial courts with an intimate knowledge of the alleged misconduct may be appropriate, even though the misconduct does not violate a specific Rule of Professional Conduct or cannot be proved by the more rigorous clear and convincing evidence standard that applies in disciplinary proceedings.
351 Or at 539 (emphasis added; indent and citation omitted).
These comments by the court — dicta in that case — are remarkable on a number of fronts. The focus of this essay is their import for what may be said about the concept of professionalism for lawyers, and the relationship between professionalism and the disciplinary process.
What is Professionalism In the Practice of Law?
The U.S. Supreme Court, in a series of cases beginning with Jacobellis v. Ohio, said of obscenity that “hard-core pornography” might not intelligibly be definable, but that “I know it when I see it.” (Stewart, J., concurring.) Attempts of bar associations, of law professors and of courts to define professionalism have borne earmarks of the same type of conviction: that some kinds of professional behaviors are to be described by example and deemed salutary by reference to the instinctive approval of those observing them, while unprofessional actions are similarly identified by the visceral disapproval of those who judge them negatively. Professionalism has seemed impossible to define in the abstract with any precision.
Oregon, through the OSB House of Delegates and through the Oregon Supreme Court, adopted a Statement of Professionalism endorsing a “professional standard of conduct that goes beyond merely complying with the ethical rules.” That statement defines professionalism as “the courage to care about and act for the benefit of our clients, our peers, our careers and the public good.” It goes on to list, using words like integrity , justice , respect , courteousand legitimate , a series of “do good and prevent evil” propositions which professional lawyers should endorse.
The purpose of these comments is not to belittle the quest for higher standards in the organized bar. But any discussion of serious matters must begin with some level of agreement about language, lest the conversation be reducible, in Macbeth’s words, to “sound and fury, signifying nothing.” On what professionalism means, that which has been written by scholars and courts alike will reveal very little clarity concerning the boundaries of the term. The Oregon definition above equates it with a type of courage. A recent article in the ABA’s Professional Lawyer 1 defined it to include whatever might improve the legal system, teach, promote technology, improve access to the legal system, value lawyers’ place in that system, promote excellence or help lawyers maintain equilibrium in their lives. There have been other approaches, both broader and narrower along that spectrum.
The language around legal ethics has created its own unique equivocation. The history of Western philosophy has for millennia addressed matters of ethics, meaning that which a person should do, as distinguished from what the person must do by force of any applicable law of nature or of government. When the ABA first created its Canons of Professional Ethics in 1908, the Canons were not cast in language suitable for disciplinary enforcement, but described how legal professionals should behave. The Canons’ approach was changed in 1970 by the adoption of the ABA Model Code of Professional Responsibility, which included both disciplinary rules (enforceable with licensing sanctions against a lawyer) and ethical considerations (“aspirational” and therefore not so enforceable). The ABA Model Rules of Professional Conduct, adopted some years later, continue to include some elements of both: with rules, some of which describe what a lawyer should or may do and most of which describe what a lawyer shall do, 2 and with comments to articulate what those rules mean.
Although Oregon’s version of the Model Rules addresses what lawyers reasonably should know , unlike the ABA Model Rules it includes no reference to what a lawyer should do . At the time the ORPCs were crafted and adopted prior to 2005, the Oregon Supreme Court made plain to the bar that the rules were to focus on discipline, enforceable by clear and convincing evidence, even as criminal laws are enforceable by the somewhat higher “beyond a reasonable doubt” standard. Thus, what began in 1908 as an effort in the name of legal ethics to define what professional lawyers should do, had by the beginning of this century morphed into prescriptions of what all lawyers must do, as a condition of practicing law. We continue to refer to the rules defining what we must do as a body of legal ethics, despite the transformation of those normative rules into mandates. Thus, ethics in the legal profession has come to mean mandates, not norms to which we should aspire, contrary to what ethics means in other contexts.
The OSB Statement of Professionalism, discussing conduct that goes beyond merely complying with the ethical mandates, comes perhaps as close as reasonably possible to describing what this author means by professionalism: “higher principles” beyond the minimum standards of the Rules of Professional Conduct that lawyers (in the view of the observer or of a majority of the profession) should but are not required to adopt, for the benefit of others, of the profession, or of society as a whole.
What Does It Mean to Say That Ethical Behavior May Nevertheless Be Improper?
Against this view of professionalism, the court’s comments in Marandas seem perplexing. The notion of aspirational norms beyond the Oregon Supreme Court’s ethical mandates has, of course, a long tradition — from the Canons to the Ethical Considerations of the Code to such professionalism pieces as the OSB’s Statement of Professionalism. The concept that a heightened burden of proof may immunize some questionable conduct from discipline is hardly new. 3 The idea that there is a category of improper behavior appropriate for sanction by courts (though not by the state supreme court through the disciplinary process) through the courts’ inherent power to govern litigants and their counsel (measured against applicable statutes and court rules) is also not groundbreaking. But the notion that unprofessional conduct, without more, may be deemed improper and therefore subject to sanction by “courts with an intimate knowledge of … misconduct,” appears to assume more than many lawyers will agree is either real or appropriate, on a couple of scales.
Part of what this lawyer finds extraordinary about the court’s statements concerning Mr. Marandas is that — at the same time as it found the evidence before it insufficient to warrant even a public reprimand — the court explained in detail to the public that Mr. Marandas’ conduct was “improper,” 4 strongly implying that the conduct was neither reasonable nor professional, without explaining the standard against which the court drew that damning conclusion. Curiously, the court went out of its way to “express no opinion” regarding whether the trial court’s order imposing sanctions on Mr. Marandas was appropriate, at the same time that it resoundingly condemned his actions in a lengthy published opinion. ( See note 11.) 5 The paragraphs quoted above go on to suggest that Oregon’s trial courts should reign in improper conduct and that they can do so under standards lower than the clear-and-convincing standard applicable in disciplinary cases. Never before in its opinions has the court advocated that far-reaching norm.
Oregon circuit judges have repeatedly told this author that they do not see their role as deciding whether lawyers have violated the Oregon Rules of Professional Conduct, a function those judges deem to have been committed to the Oregon State Bar and to the state supreme court. One judge expressed great skepticism that circuit judges sufficiently understand the nuances of the ORPCs to enforce those rules even-handedly. The concept, therefore, that trial judges are even attempting in litigation before them to enforce the letter of the rules may reasonably be questioned. That they are attempting to adjudicate reasonableness and professionalism not proscribed by those rules seems highly unlikely.
Whether ORS 20.105 or ORCP 17 sanctions for frivolous behavior are imposed in any but the rarest of circumstances is also subject to question. In a few reported Oregon cases, such sanctions have been upheld ( see Dahl v. St. John, 152 Or App 748 (1998) (ORS 20.105); Carleton v. Lowell , 107 Or App 98 (1991) (ORS 20.105); Plere Publishers, Inc. v. Capital Cities/ABC, Inc., 120 Or App 36 (1993) (ORCP 17)), but more typical is Westfall v. Rust Int’l, 314 Or 553 (1992), where sanctions repeatedly imposed by lower courts were eventually reversed on appeal.
But what the courts may be doing in fact is not the point of this essay on professionalism. My suggestion is that it is dangerous to hypothesize that there exists a definable standard of professionalism — separate from the ORPCs, from statutes and from rules of court — which trial courts should be enforcing through their inherent contempt powers. It is dangerous first because the idea of such enforcement may well violate well-established principles of due process, because lawyers should be on fair notice of conduct that warrants sanction. And it is dangerous if the supreme court, by assuming that trial courts are in fact controlling improper behavior when they truly are not, believes that it may allocate responsibility for policing lawyer behavior to the lower courts, at the same time that the lower courts are leaving that function to the Oregon Supreme Court, with the result that lawyer misconduct is left unchecked by any court.
Finally, the suggestion that improper behavior may be subject to sanction even when consistent with ethical rules continues to conflate pure ethics with regulatory mandate. Conversations about lawyers’ professionalism should be close to the heart of what national, state and local bar associations promote, at least outside the boundary of the state bar’s disciplinary processes, and of what courts should promote, but only outside their exercise of coercive power. This lawyer, for one, believes that conversation to be aspirational and normative, not about imposition of discipline or the scope of judicial contempt power. Professionalism is about lawyers doing more than they are required to do. Some of what is found in the OSB Statement of Professionalism relates also to the minimum standards in the rules, and “professional” lawyers will no doubt begin by doing that which is required. But distinguishing clearly, both in such codes and in the opinions of our supreme court, between mandatory and laudatory behavior is the beginning of the search for clarity around what we really mean by professionalism.
How Should the Conversation On Professionalism Evolve?
Professionalism should — and can — be more than “I know it when I see it.” It also should however clearly be distinguished, both by the courts and by the bar, from failures punishable by force of law. Clarity about that distinction should be the starting point for our discussions about professionalism, if that topic is to have meaning.
A second focus for that conversation might be the questions specifically left by the Rules of Professional Conduct to the discretion of each lawyer. For example, under ORPC 1.6(b), a lawyer may (but need not) reveal confidential information in seven specified types of circumstance; the question of ethics is when the lawyer is permitted to do so, and the question of professionalism is what the lawyer should do when those exceptions apply. Similarly, ORPC 1.7(b) permits a lawyer to represent clients notwithstanding a current conflict of interest if the exceptions apply; whether a lawyer should not do so even if permitted in some circumstances is a professionalism issue. And a lawyer may withdraw from representing a client under ORPC 16(b), but when lawyers should not do so even if permitted is a professionalism question. Almost the entire “Public Service” topic under what the ABA had numbered beginning with Rules 6.1 is reserved in Oregon to the topic of professionalism.
In The Vanishing American Lawyer (Oxford 2010) , Thomas D. Morgan of the George Washington School of Law argues that both professionalism and the legal profession are dead, which he calls a positive development, and that professionalism as a concept has been (cynically or not) a tool of past legal establishments to shore up the status quo rather than to create community or to increase justice. Prof. Morgan’s arguments are intentionally provocative but essential reading for anyone who cares about what professionalism in the law may mean for the future, however ineptly the concept may have been employed by past generations of lawyers.
This article cannot resolve the ambiguities of the past around what should or should not be deemed professional behavior for lawyers. Hopefully, however, we can together move beyond the past’s propensities to confuse that which is essential for all lawyers with that which should be aspirational for lawyers collectively. It will be helpful if our courts refine their statements around that difference, but ultimately professionalism is not about what the courts tell us we must do but about what we together choose to contribute to our society. Whether the organized bar can empower lawyers to realize what it means to say that the law is a profession, with greater clarity and purpose than past efforts have produced, will determine whether Prof. Morgan’s indictments of professionalism and of our profession turn out to be fair.
The Oregon State Bar has the luxury of relative intimacy, permitting that conversation to take place in a way that larger bars may find hard to accomplish, perhaps as a model for other bars. Professionalism is not a topic that may be relegated to any committee or segment of the bar, however useful the Oregon Bench & Bar Commission on Professionalism may be. It is a conversation to which we all are invited. The public too often judges our profession based on the conduct of lawyers who care little about aspirational behavior. Unless we together can make real a vision of our profession that is more than high sounding but hollow words, the practice of law will have — and perhaps has already — lost whatever claim it may have had to being anything more than just another business.
1. R. Minkoff, Reviving a Tradition of Service: Redefining Lawyer Professionalism in the 21st Century, The Professional Lawyer (2009 v. 4).
2. E.g., ABA Model Rule 1.6(a) (a lawyer “should” aspire to support pro bono efforts).
3. E.g., In re Leisure, 336 Or 244, 254 n.7 (2003) (“lack of candor” not condoned though not subject to sanction under clear and convincing standard).
4. A reprimand is disciplinary action that “declares a lawyer’s conduct to be improper, but does not restrict or limit the lawyer’s ability to practice law, usually because the misconduct is not particularly aggravated or serious.” See www.osbar.org (describing levels of discipline).
5. The Oregon Supreme Court in some prior cases declined even to identify lawyers whose conduct did not warrant reprimand, In re Conduct of A., 276 Or 225 (1976); In re Conduct of R., 276 Or 365 (1976), or at least declined to describe the lawyers’ alleged misdeeds in such circumstances. Compare Furnish v. Merlo, 1994 WL 574137 (D. Or. 1994), with In re Conduct of Hartman, 332 Or 241 (2001).
ABOUT THE AUTHOR
Arden Olson is a shareholder with Harrang Long Gary Rudnick, practicing out of offices in Portland and Eugene. He sat on the OSB’s Special Committee on the Model Rules of Professional Conduct and recently completed terms on the ABA Standing Committees on Professionalism and on Ethics and Professional Responsibility. His practice focuses on legal ethics, insurance law and commercial litigation matters.
© 2013 Arden Olson