By Cliff Collins
'How very unprofessional,' we think to ourselves. Recognizing when a lawyer veers off course is the easy part. Much harder is charting the borders defining where professionalism begins and ends.
Is it civility? Integrity? Competence? Conscientiously supporting clients? Yes, yes, yes and yes. But it is more: It is establishing a model of behavior, says Newport attorney Kevin K. Strever, a past president of the Oregon State Bar. 'Professionalism means managing relationships and your practice such that, whether the stakes are large or small — and even when the issues are strongly contested — the system can work efficiently to resolve conflict,' he says.
'Professionalism means the golden rule,' says Portland lawyer and OSB President Charles R. Williamson. 'It means being polite and well-behaved (and) using good manners,' he says. 'It also means trying to be reasonable and to see things from both or all sides, not just your own or your client’s. It means not losing your temper no matter how egregious the provocation. And ... it means apologizing when you do.'
The OSB weighed in on the definition in 1990, publishing its 'Statement of Professionalism,' which opens by observing that members 'belong to a profession devoted to serving both the interests of our clients and the public good.' The document covers the broader sweep — such as promoting the 'dignity, independent judgment, effectiveness and efficiency of the legal system' — to the specific — such as advising clients against pursuing meritless litigation and endeavoring to resolve disputes that represent the best interests of clients while at the same time minimizing legal expenses for all involved.
Polls proclaim that the public thinks 'lawyers aren’t interested in justice, but winning,' notes Robert E. Hirshon, a past president of the American Bar Association and chief executive officer of Tonkon Torp. But, he adds, when pollsters ask, 'Do you have or have you had a lawyer?' and 'Do you like him or her?', the answer changes to, 'Yes, and he is willing to fight for me,' or 'She was an effective advocate for my position.'
Perhaps in an effort to bridge that perception gap, the Oregon Supreme Court in 1995 created The Joint Bench/Bar Commission on Professionalism. Its stated purpose was: 'To promote among lawyers and judges principles of professionalism, including civility and commitment to the elimination of discrimination within the judicial system, to ensure that it equitably, effectively and efficiently serves the people of Oregon.'
'There was a perception among many lawyers that there was a need to enhance professionalism,' explains Albert A. Menashe, chairman of the commission and a Portland attorney. 'Ninety-eight percent of the lawyers are professional. There’s just a small percentage that are not. I suspect these are the folks who make the practice less fun and impact the public’s perception. We believe the law is a very noble profession. I want lawyers to be held in the highest esteem by the public.'
The commission also has created an award, with the first recipient former Chief Justice Edwin J. Peterson. The award is called the Edwin J. Peterson Award, and it will be presented at the OSB Awards Dinner on Sept. 19 at Seaside. A second presentation will be made at a future Oregon Judicial Conference. (A profile of Peterson is on page 13.)
'I think the fact that the award is named after Chief Justice Peterson and that he is the first recipient speaks volumes' about how the legal community views his contributions to professionalism, Menashe says. 'Anyone who has practiced for any length of time in this state knows that he has been a guiding light in that area and to the profession.'
The court charged the commission with:
Periodically reviewing and revising the Statement of Professionalism approved by the Oregon Supreme Court in 1991 (and found on page 90 of the OSB Membership Directory).
Promoting educational opportunities for lawyers, judges and the public
Promoting professional and nondiscriminatory conduct among members of the bar through encouragement and training
Designing and developing creative approaches to promotion of professionalism and equality, including possible implementation of programs to: prepare advisory opinions concerning professionalism issues; develop local bar groups to foster discussion of professionalism and equality; and provide through its members a resource for lawyers, judges and members of the public on professionalism issues.
'This isn’t just another bar committee,' Menashe emphasizes. It, in fact, is the definition of a blue-ribbon commission: Members include the chief justice of the supreme court, the chief judge of the Oregon Court of Appeals, representatives from all three of the state’s law schools, leaders of the Oregon State Bar, a public member and other judges and lawyers.
The commission meets six times a year, and 'we have good attendance,' adds Menashe. Members attempt to hold sessions every other time outside the Portland area, primarily at the law schools. He is impressed with members’ commitment. 'These are extremely busy people, and they show up. It is a group totally dedicated to the concept of professionalism.' Chief Justice Wallace P. Carson Jr., for example, 'has been very active, a stellar member from Day One,' he says.
The commission has provided an opportunity for lawyers, judges and the law schools 'to talk through' what professionalism is and how it can be promoted, Menashe says. 'The law schools have been great partners in adding classes and excellent programs talking about professionalism.
'I don’t think a lot of people know about it,' he says of the commission. 'This group in its eight years has done some good things. We’ve worked with local bar associations, put on programs for judges, lawyers and law schools. We’ve been trying to build a coalition of the bench, bar and law schools to work on professionalism. It’s incredibly satisfying to see them all work together.'
The commission generates ideas for programs and speakers and has prepared video programs. It is looking at the Statement of Professionalism to see if it needs any revision. It also has reviewed disciplinary rules on professionalism to ensure that they are current.
Commission member Williamson sees interaction among judges and lawyers as a key element in improving professionalism. 'Realistically, judges need to take a leading role here,' he says. 'We all talk about how attorneys were more professional in ‘the old days.’
'In the old days, judges came to the bar convention and mixed more socially with lawyers than they do now. Judges should be more active on bar committees and CLEs and should single out good examples of professional conduct for others to emulate,' says Williamson. 'Attorneys should see that professionalism is recognized by the courts and other lawyers, and this will help professional lawyers to lead by example.
'Judges now have more work than they had in the old days and more of their own associations and societies to devote their time to. This is a loss to the bar.' Williamson likens judges’ addition to the recipe as akin to a seasoning for the bar: 'It doesn’t take a lot to make it taste better. They can make a big difference.'
Strever stresses that self interest is a good reason for OSB members to pursue the highest level of professionalism. 'When you have credibility with opposing counsel, and reserve disagreements for matters of material substance, your position is often taken more seriously,' he posits. 'You can negotiate for better results, or be prepared to try your case sooner and more effectively. That means, in terms of self interest, better results for your client, and indirectly, for yourself.
'The long-term benefits of a positive professional reputation far outweigh the short term advantage gained by being ‘clever’ or playing ‘peekaboo’ with documents or witnesses,' Strever concludes.
'Professional trial lawyers are courteous and respectful to the judge, court staff and opposing counsel,' says Daniel L. Harris, vice chairman of the commission and a circuit court judge in Medford, writing in a pamphlet, 'Professionalism in the Courtroom,' published this year by the Oregon State Bar.
'The professional lawyer understands the importance of courtesy and respectful conduct when conducting affairs in and related to courtroom practice. Many lawyers have yet to learn this basic tenet, and labor under the false belief that you can belittle or mistreat courthouse staff or opposing counsel without affecting your standing with the judge or the trier of fact.'
Harris outlines 10 suggestions for improving the level of professionalism in our courtrooms, compiled from comments received from judges and attorneys who were asked for suggestions on what can be done. Another of the 10 points was: 'Don’t fudge. Credibility is everything. Some lawyers gain a reputation for being fudgers. They overstate the facts in a case, misrepresent the holding in a case, misstate the position of the opposing party. Some attorneys believe they are simply zealously representing their clients when they stretch or shade the truth. They are actually doing a disservice to their client.
'Once this reputation sets in, it is difficult for a lawyer to regain credibility and it ultimately diminishes the lawyer’s ability to be effective as an advocate. Credibility and reputation are earned from hard work, ethical practice and a believable and accurate representation. Credibility and reputation will get you a lot further in a courtroom than any other aspect of your practice.'
THE JOINT BENCH/BAR COMMISSION ON PROFESSIONALISM
Here is a roster of the Joint Bench/Bar Commission on Professionalism:
Albert A. Menashe (Chair)
Honorable Daniel L. Harris (Vice Chair)
Circuit Court Judge
Honorable Dennis J. Hubel (Secretary)
United States Magistrate Judge
Thomas W. Brown
(Multnomah Bar Association Liaison)
Cosgrave, Vergeer & Kester
Honorable Wallace P. Carson Jr.
Oregon Supreme Court
Honorable Mary J. Deits
Court of Appeals
Barbara S. Fishleder
PLF Staff Liaison
OSB Executive Director
Northwestern School of Law, Lewis & Clark College
David R. Kenagy
Willamette University College of Law
Laird C. Kirkpatrick
University of Oregon School of Law
Honorable Karla J. Knieps
Circuit Court Judge
Honorable Edwin J. Peterson
Former Chief Justice
Oregon Supreme Court
OSB Staff Liaison
Lawrence B. Rew
Corey Byler Rew
Honorable Roosevelt Robinson
Circuit Court Judge
Richard B. Solomon, CPA
Kevin K. Strever
Barton & Strever
Charles R. Williamson
Kell, Alterman & Runstein
Professional Liability Fund
ABOUT THE AUTHOR
Cliff Collins, a Portland-area freelance writer, is a frequent contributor to the OSB Bulletin.
© 2003 Cliff Collins