By Ira Zarov
In 1991, Chief Justice Edwin J. Peterson of the Oregon Supreme Court created the Joint Bench, Bar Commission on Professionalism. The commission membership includes OSB members, the OSB president, appellate judges, circuit court judges, representatives from the state’s three law schools and a public member. Its mission is to move the cause of professionalism forward. This year I am the chairperson of the commission. I note that there is some irony in the appointment. Put bluntly, my days as a litigator were not without several transgressions of black letter tenets of professionalism. I think it worthwhile to write about my "indiscretions" and to examine them in light of two questions. First, what are the circumstances that foster unprofessional behavior? And second, the fundamental question: why be professional?
I began my legal career as a VISTA (Volunteers in Service to America) lawyer in the Coos and Curry County legal services office in 1974. I was 27. The managing attorney had only nine months more experience than I. In those days, legal services lawyers were seen by many rural bars as at worst, a radical group of troublemakers and, at best, people who would keep low income clients off their doorsteps. As a result, the attorneys who pioneered the opening of legal aid offices in places like Klamath Falls, St. Helens, Roseburg and Ontario often felt like outlanders, isolated from both the local bar by culture and from the legal services community by distance.
What is more, in those days many of us were eager, to paraphrase the ’60s philosopher Herbert Marcuse, to throw ourselves into the wheel of the system and bring it to a grinding halt. That meant suing the state Department of Human Resources, the federal government, local governments and landlords when clients had problems that lent themselves to legal solutions. It meant representing migrant workers in contentious suits against growers. It also meant, for some, the self-defined ambition of building an intimidating litigation persona. Unfortunately, at least for me, the combination of outsider status, contentious lawsuits, ego, inexperience, minimal supervision and the lack of a mentor, created an atmosphere conducive to unprofessional behavior.
In that atmosphere it is not surprising that I acted unprofessionally on occasion. I committed my first unprofessional act when I had been in practice less than a year. I received a letter from opposing counsel in a dissolution proceeding that I perceived as disrespectful and unnecessarily harsh. In high dudgeon I fired off a rabid reply that probably began with "In my six months of practice I have never…," and then accused the offending counsel of every sort of calumny.
About two days later I got a call from the opposing counsel. He was polite and professional. He asked me if I would retrieve his letter, reread it and then complete the exercise by reading my response. I grudgingly agreed and to my chagrin found that the initial letter was an innocuous request for information that was the epitome of decorum, especially when read side-by-side with my incendiary response. Opposing counsel then kindly suggested that perhaps I had been having a bad day when I wrote the response and when I took offense at something in the future, I might wait a few days before replying.
To this day I don’t know what prompted me to write the offending response. Perhaps it was undiagnosed paranoia, or maybe an expression of myriad insecurities surfacing as a result of my simultaneous immersion into two very different and foreign worlds, one inhabited by lawyers and judges and the other by poverty-stricken clients. The latter was particularly jarring because the ongoing despair and limited opportunities available to my clients challenged my natural meliorism. Or perhaps, as opposing counsel had suggested, I was just in a bad mood. Whatever the underlying reason, my unprofessional conduct had more to do with me and my needs than the needs of my client. I suspect that in the case of many lawyers the genesis for unprofessional behavior is similarly motivated.
I was lucky to get good advice from a lawyer who valued professionalism enough to take the time to impart a lesson to a neophyte attorney. His professionalism had a lasting effect on me and, I think, made my life easier. Had he chosen to talk to other attorneys in town about my knee-jerk response, my reputation and my ability to secure both cooperation from others, and the best results for my clients would have suffered.
Soon afterward I moved to Portland to focus on federal court class actions and complex litigation. In that context I soon found myself facing the same opposing counsel in case after case. This opposing counsel had a well-deserved reputation for an all out, Sherman-to-the-sea approach to litigation. Now two years out of law school, I responded with similar tactics – fight fire with fire — and took a guilty pleasure in it. As a result, the two of us developed a contentious relationship that frequently exceeded the bounds of even "normal" unprofessional behavior, let alone professional conduct. As I recall, in the course of our dealings we both were sanctioned for discovery misdeeds and when we met for depositions chairs might fly as easily as accusations. And of course, trips to the courthouse were de rigueur.
We were so engaged in this private war that the dispute spilled into the courtroom. The defining moment occurred at hearing on a motion before Judge Edward Leavy, where we fell into a "colloquy" arguing the finer points of who had been the most profligate obstructionist. As we happily went on and on, enthusiastically careening into the ad hominem, Judge Leavy finally looked at us both, leaned over the bench, and said dryly, "Gentlemen, stop it. If you want to proceed like that, just take it outside." Lesson learned.
By responding in-kind to what I saw as provocations, I conflated effective advocacy with uncensored aggression. Wrongly, I think, I believed that adopting opposing counsel’s tactics was the only way to successfully respond to him. Although in those days I enjoyed a good fight, by engaging in that conduct I failed to further my clients’ cases as effectively as possible. When I bickered in open court, or fulminated in memorandums that opposing arguments were "mere sophistry" or "semantic legerdemain," I was not making reasoned argument — and based on many subsequent discussions with federal and state court judges, I am certain the judges were not impressed. To the extent my unprofessional conduct branded me an ideologue, my actions did not inure to my clients’ benefit. And regardless of opposing counsel’s style, I could have bolstered my credibility with the court had I avoided the hyperbolic attacks and counterattacks that felt so satisfying in the moment.
Over the years, having seen the results of many different approaches to the practice of law, I have come to value professionalism for two reasons. First, acting professionally is consonant with my personal values, and second and more pragmatically, the values and behaviors that the Statement of Professionalism seeks to inculcate are consonant with the qualities that produce effective advocacy. I was struck by this congruence in the course of preparing a training session on negotiations for new legal services lawyers. No conflicts exist between the traits common to successful negotiators and the traits espoused by the Statement of Professionalism.
For example, traits common to successful negotiators, whether they approach negotiations aggressively or cooperatively, include being honest, realistic, prepared, ethical and reasonable. Ineffective negotiators withhold information and are unreasonable, argumentative, arrogant and obliging. The Statement directly invokes the positive traits and by implication discourages the negative traits. Section 1.6 states that "we will diligently represent our clients within the bounds of the law and the ethical standards…." Section 1.9 enjoins lawyers from misstating facts. Sections 1.4 and 1.12 reflect the need to be prepared, stating that lawyers should conduct cases in a timely manner and not use delay as a tactic. Section 1.13 requires lawyers to "solve problems and not create or exacerbate them." The Statement embodies the principles of preparedness, reasonableness and honesty, three of the most effective traits common to good negotiators. And in my experience, traits necessary for success for all lawyers whatever their practice area.
Professionalism is not just an abstract value. It is an approach to the practice of law that makes those who honor its tenets more effective — in a word, better. Lawyers who act professionally will obtain superior outcomes for their clients, and the lawyers, their clients and the profession will prosper as a result.
ABOUT THE AUTHOR
Ira Zarov is chief executive officer of the Oregon State Bar Professional
Liability Fund and chair of the OSB Professionalism Commission.