Oregon State Bar Bulletin — FEBRUARY/MARCH 2002

Lawyers and Apple Pie

By Tom Elden

I heard a radio debate on whether the Trail Blazers should have felons who can win or nice guys who can't win. Isn't that similar to what we ask when discussing professionalism? But even proponents of professionalism will tell you winning trumps niceness. Even DR 7-101(A)(1) on 'Representing a Client Zealously' - with its concession to being reasonable, punctual and courteous - emphasizes the goal as achieving the lawful objectives of the client. And DR 7-101(B) does not provide much wiggle room or guidance: 'where permissible' you can waive or fail to assert a position on behalf of your client; which sounds like no more than not shouting 'hearsay' as a tactical move. However the bar's Commission on Professionalism very recently suggested deleting the word 'zealously' where it resides in the titles of DR 7-101.

We're in a 'learned' profession. We are confident we are professional because we do our job and don't get in too many scrapes with other attorneys and the bench. Should we strive for a higher ideal?

The quarterback job in lawyering has always been the trial lawyer. (Even if it seems trial advocacy has been replaced somewhat by compromise, the litigation that survives provides an essential alternative in all dispute resolution.) But stories about trial lawyer behavior in the recent 'good old days' run from the prevalence of handshake agreements to the most blatant courtroom trickery; it is difficult to get a fix on our past to improve our future.

Whatever used to win cases, the current wisdom is they are won by not 'fighting' at all (mediation) or by being nice. Skilled judges and attorneys admonish us about juries: 'If they like you, they will like your case' or 'reduce objections and confrontive behavior; juries like pleasantness.' We do know judges like smooth waters. In Marion County motions to compel discovery are best raised in a 'status conference.' Most lawyers expect that when confronting the pit bull opponent, many Oregon trial judges are inclined to stay on the sidelines where possible. Hopefully this doesn't mean judges are disinterested but rather are optimistic we can both cite a case and handle the toughest breaches of good behavior with little help.

Besides considerations of the best tactics for winning cases there is considerable professionalism rhetoric around. For example, the bar used to require six hours of continuing education to comprise teaching on ethical behavior. After the bar earmarked some ethics training for child abuse reporting, and recently added requirements for diversity training, what it left is no longer just ethics but is now ethics and professionalism. See, Revised MCLE Rule 3.3.

Professionalism is favored in legal circles. Awards for professionalism are increasing along with training. We have commissions on it and statements of it and pledges to follow it. But I have heard lawyers say that clients, who supposedly take a dim view of the legal profession, seem to like having their own warrior, and often desire that lawyer to be the meanest S.O.B. on the block.

But don't discard the ideal of better behavior. When the Court of Appeals praises a lawyer's exposition of legal authority that included cases on both sides (State v. Andrews, 174 Or App 354 (2001), and the Oregon Supreme Court says a failure to cooperate with a reinstatement effort (In re Starr, 330 Or 385 (2000)) or a failure to account for one's performance is unprofessional (In re Geurts, 290 Or 241, 248, (1980) cited in In re Arbuckle, 308 Or 135 (1989)), we should listen. When brilliant judges like former Oregon Chief Justice Ed Peterson, current Chief Justice Wallace P. Carson Jr. and United States Supreme Court Justice Sandra Day O'Connor tell us professionalism is important or that a profession must constitute service over profit we should listen. (see, Sandra Day O'Connor, Professionalism, 78 OR L REV 391 (1999)).While DR 7 101(A)(1) requires us to not intentionally fail to seek our client's lawful objectives, it also implies we should try to do so within the bounds of reasonableness, punctuality, decency and courtesy.

One's 'ideal' of professionalism is necessarily created from individual experience and a personal value system. If the disciplinary rules do not sufficiently encourage or mandate professionalism, then our relationship to the courts and our training and heritage should.

I don't think lawyer professionalism is too elusive to identify or strive for. At its core it means decent behavior. To those who espouse a scorched earth policy, their own self-interest should cause reconsideration of how cutting a little slack here and there comes back around when needed.

I believe in the concept of professionalism. Doing the right thing, going the extra mile, following the Golden Rule - these almost never compromise achieving a client's goals. And boorish behavior rarely helps the client; nor is considerate behavior just its own reward.

But showing consideration is too narrow a focus. Certainly it includes hard work, competence, education and service. It is making the legal community stronger through movements such as the American Inns of Court. It is being willing to take less to be in public service or to work or give so there are legal services for the poor. It includes doing what we can to publicize lawyer achievement and integrity. While it may sound like a vote for apple pie, put me down as a cheerleader for the legal profession and professional behavior. Even if professionalism is also a marketing strategy and an effort to make us feel better about ourselves, the idea that practitioners want to be part of something often difficult to define - but noble and good in the execution is - positive.

A slightly different version of this essay was presented at the in-house annual Justice Department Ethics CLE in December 2001. The author is a member of the DOJ Ethics Committee.

© 2002 Tom Elden

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