So how does one go about “working out” her “profession” in her life, recognizing that the practice of law is only a part—an important part, but only a part—of that life? Perhaps a helpful first step in discovering or determining one’s profession (as in “what do I believe in and what will I do in response to it) is to consider Stephen Covey’s suggestion to “begin with the end in mind.” Covey at 97-99. He suggests that you imagine your own funeral, at which there are four speakers: a family member, a friend, a professional colleague and someone with whom you have worked in your faith community or a community organization. He then directs that you think about what you would want each one of them to say about you. He believes that those imagined statements reflect your deepest, most fundamental values. Id. at 97. From those values, derive your personal mission statement, which focuses on “what you want to be (character) and to do (contributions and achievements) and on the values or principles upon which being and doing are based.” Id. at 106. Development of a personal mission statement necessarily begins at, and must take into account, not only what you want to be and what you want to do, but what and who you are now and what you have done. This analysis is a practical way to begin to crystallize certain aspects of your own “communities of memory” into the present and then transport it into the future. Such reflection will also help us identify whether the principles we have internalized from our communities are accurate and, if not, how we might correct them:
A personal mission statement based on correct principles becomes the same kind of standard for an individual[as the Constitution is for our country]. It becomes a personal constitution, the basis for making major, life-directing decisions, the basis for making daily decisions in the midst of the circumstances and emotions that affect our lives. It empowers individuals with the same timeless strength in the midst of change.
People can’t live with change if there’s not a changeless core inside them. The key to the ability to change is a changeless sense of who you are, what you are about and what you value.
With a mission statement, we can flow with changes.
Id. at 108. And flow with changes we must. Some have pointed to the significant changes in legal practice as precipitating the decline in professionalism. ACREL Ethics and Professionalism Working Group, Report of the ACREL Working Group on Ethics and Professionalism (Sept. 27, 2004), at 1, available at http://www.acrel.org/Documents/PublicDocuments. These changes are seen as resulting from “the extreme commercialization of the legal profession,” (Barnhizer, supra note 2, at 373) increasingly intrusive technology (Id. at 390), increasing billable hour demands (Id.) and simple greed. The very discipline of developing a personal mission statement cuts across all this. It requires that one take time out to “go to the mountaintop” and think about life, what he wants out of it, what he wants people to say at his funeral. I believe that, at least for many, among the results of such an exercise sincerely pursued will be a renewed dedication to building true relationships. I suggest that professionalism is best evidenced by this principle.
Such a sincere commitment to “being in a relationship” does not mean “getting along” as we generally think of the term, although that is certainly a goal, and often, if not usually, the result of truly pursuing a relationship. What it means, more basically, is relating appropriately to everyone, taking into account our role in regard to them and their role in regard to us. My relationship with my wife is different from those with my partners. My relationships with my partners differ from those with my staff. Simply getting along with everyone does not mean I am in a proper relationship with them. Being in a right relationship may require me to confront them from time to time for their own good and for the good of the relationship. Being in a right relationship requires an understanding of me and my place in regard to others, of others in regard to me and all of us in regard to society at large. It is in part an understanding of roles. This does not refer to “role-defined” ethics as dismissed above. It refers instead to a thoughtful understanding of how one’s consistent personal ethic, one’s abiding sense of self, expresses itself in the various relationships that make up a professional life.
The American College of Real Estate Lawyers (ACREL), professing that it “stands for the highest standards in the practice of real estate law” (American College of Real Est. Law., Statement of Professionalism (Mar. 2005), available at http://www.acrel.org/Documents) updated its Statement of Professionalism (the “ACREL Professionalism Statement”) in March 2005. Id. It seeks to specify the principles to be followed by a real estate attorney within his or her various roles. The Statement includes the following selected admonitions under Commitments to the Client, to Integrity and Civility and to the Profession:
1. Under Commitment to the Client:
- Members must . . . place the interests of the client, the legal profession and the administration of justice above self-interest.
- Members should endeavor to achieve the client’s lawful objectives in matters as expeditiously and economically as possible.
- Members should keep the client informed of the progress of the matter for which the Members have been retained or engaged, including the costs and fees.
2. Under Commitment to Integrity and Civility:
- Members must scrupulously honor commitments made and extend civility and courtesy to all persons.
- In the conduct of negotiations, Members should conduct themselves with dignity and fairness and refrain from conduct meant to harass or annoy the opposing party.
- Members should (a) in pursuing the objectives of the client act in the best interests of the client but at all times in a professional manner consistent with this Statement, (b) conduct civil, honest and open negotiations, (c) draft understandable documents consistent with the understandings of the parties, and (d) disclose to the other party obvious drafting errors inconsistent with those understandings.
- Members will clearly identify, for other counsel or parties, all changes and revisions made to documents.
- Members will scrupulously refrain from making misleading statements of law or fact, whether by omission, inference, or implication.
3. Under Commitment to the Profession:
- Members should strive to provide role models and examples of balanced lives and professional practice for law students and young lawyers.
4. Under Commitment to the Community:
- Members must provide pro bono or reduced fee legal services to low income members of the community or legal services to public or private organizations designed to address needs or persons of limited means and should perform public and community service for the public good.
- Examples of this commitment include, among others, providing legal assistance to non-profit neighborhood and community development organizations and offering negotiating and drafting skills to resolve local “not in my backyard” issues.
Id. These admonitions, like any “creed”, must be lived to have any effect. The living out of them requires a motivation to do so. One of the debates within the legalprofessionalism community is whether admonitions carry within themselves their own motivation; whether a lawyer, simply by being made aware of them, will determine to live and practice in compliance with them. The answer to this question depends upon the individual and what she brings to the practice. For example, the admonition to subordinate self-interest to the interests of clients may resonate more easily with an attorney who comes from a community, faith or tradition that emphasizes self-sacrifice. One who grew up and was educated in a background that instead emphasized self-empowerment at the expense of others, or who perhaps grew up in an environment in which he had to look out for himself because no one else would, may have a more difficult time. A motivation for self-sacrifice may have to be engendered, perhaps taught and learned, mentored or even gained by a “conversion” experience, but the attorney’s personal history cannot be ignored. Instead it must be understood and dealt with by those within the legal community who have the opportunity and the responsibility to guide, teach and mentor. “Lawyers, after all, are people first and learn the values of our society long before they come to law school and enter law practice.” Barnhizer, supra note 2, at 411.
The same kind of analysis attends other principles. Those for whom making as much money as possible is the primary motivator may have difficulty with the admonition to resolve a client’s matter as expeditiously and as economically as possible. See American College of Real Estate Lawyers, supra note 38. Those who have not made a habit of honoring commitments to others, or with whom commitments routinely have not been kept, may not understand what it means to honor commitments within the context of the practice. Those without an established character of personal honesty will likely have difficulty living a “professional” life of honesty.
These observations are not to say that these individuals cannot come to live up to these standards. They are simply to make the point that “just saying it don’t make it so;” that stating rules does not mean that all will adhere to them, or even at a deep level comprehend them. The practice of law will regain its professionalism, to the extent it has been lost, only if the focus becomes the character of its members. The legal community must focus on this and make it a part of its own formative influence. Law school and some law firms seem determined to wipe out all earlier memories. Much of my anxiety in the early days of practice resulted from the conflict between that determination and my need to hold onto what I had come to see as “me.” The legal community will find its rightness in motivation and deed only if and to the extent that it recognizes its identification as a succeeding, not an overriding, community of relationships and friendship.
Inculcation of professional values must include a sense of balance. A portion of the ACREL professionalism creed calls for “[m]embers [to] provide role models and examples of balanced lives.” Id. Stephen Covey offers these observations:
One of the major problems that arises when people work to become more effective in life is that they don’t think broadly enough. They lose the sense of proportion, the balance, the natural ecology necessary to effective living. They may get consumed by work and neglect personal health. In the name of professional success, they may neglect the most precious relationships in their lives.
Covey, supra note 29, at 135-36.
Your [life organization plan] should help you to keep balance in your life, to identify your various roles and keep them right in front of you, so that you don’t neglect important areas such your health, your family, professional preparation or personal development.
Many people seem to think that success in one area can compensate for failure in other areas of life. But can it really? Perhaps it can for a limited time in some areas. But can success in your profession compensate for a broken marriage, ruined health or weakness in personal character? True effectiveness requires balance, and your [life organization plan] needs to help you create and maintain it.
Id. at 161.
Early in my career a searched for role models of a balanced life. All I found were “great attorneys” who sacrificed other parts of life, especially their marriages and their families, on the altar of career. The very words reflect the problem:
It is not our “occupation,” our “career,” or our “vocation” that is in trouble. It is our “profession.” There is a big difference among these terms. “Occupation,” from the Latin occupatio, refers to “means of passing one’s time”—simply a way to pass the time each day. I hope we all are doing more than this! “Career” is somewhat more elevated. It comes form the Latin carraria, or “vehicle,” and refers to a forward motion through life. It shares the same root as “careen” . . . . Some of us are certainly “careening” through life, and yet, there should be more. Finally, there is “vocation,” from the Latin vocare, meaning “to call.” Historically, it refers to a divine call in the sense of being fit for something, talented in something.
Simply passing your time in an occupation, or careening through life in a career, or even being called by your talent to a particular job does not require anything from you. But being a “professional” most certainly does. Here the root in the Latin professio, or “declaration,” referring to a vow, a declaration of belief—an avowal made by you. All of you have taken “professional” oaths. These oaths require you to uphold the rule of law and to obey the regulations of the bar. They are not equivocal. You took these oaths in open court. If your word means anything, you are committed to this formal “profession” of obedience and to other “professional” duties.
Coquillette, supra note 25, at 71-72. None of my early “mentors” evidenced within their lives the sense of balance required by professionalism. Since then, I have met others whose lives much more approximate that balance that leads to a healthy, productive professional life. For their example I am grateful. I cannot help but wish, though, that I had received this direct and pointed guidance earlier in my career:
[M]entoring should include advice and counsel on how to balance the demands of professionalpractice with the social values of family life and community involvement. Professor Patrick Schiltz, a Notre Dame law School professor and former partner in a large law firm, argued that:
Law students and young lawyers—particularly those who have enjoyed academic success at the best schools—have to get their priorities straight . . . . Law students and young lawyers have to stop seeing workaholism as a badge of honor. They have to stop talking with admiration about lawyers who bill 2,500 hours per year. Attorneys whose lives are consumed with work—who devote endless hours to making themselves and their clients wealthy, at the expense of just about everything else in their lives—are not heroes . . . This is the best advice I can give my students: [R]ight now, while they are still in law school, they need to make the commitment—not just in their heads, but in their hearts—that, although they are willing to work hard and they would like to make a comfortable living, they are not going to let money dominate their lives to the exclusion of all else. And they must not simply structure their lives around this negative; they should embrace a positive. They must believe in something—care about something—so that when the culture of greed presses in on them from all sides, there will be something inside of them pushing back.
Peter W. Salsich, Jr., Professionalism for the Real Estate Law Practitioner, 36 Real Prop. Prob. & Tr. J. 593, 607-08 (quoting Patrick J. Schiltz, Witness for the Prosecution, Notre Dame Mag., Autumn 1999, at 18, 23). The principles of professionalism will mean something to lawyers only to the extent that those principles reflect what the lawyers otherwise believe in.
III. The Working out of Profession in a Real Estate Practice
I have a habit of referring to litigators as “real lawyers.” Perhaps this results from watching Perry Mason and other lawyer television shows. Real lawyers go to court and argue articulately about who is right and who is wrong. We transactional lawyers push paper. That is wrong. Let me suggest that a real lawyer is one who recognizes that his primary purpose as an attorney is to help create, maintain and repair relationships and even friendships. We are “relationship midwives” between lenders and borrowers, buyers and sellers, developers and investors, landowners and government agencies, ex-spouses and former partners. Real lawyers build relationships and even friendships. Our success as transactional attorneys is not determined by whether we represent everyone at the table, as one of my early partners said. It is instead determined by whether we live out a viable profession in what we do and how we do it. That profession, at some level, must emphasize service in the building of healthy relationships. We play a different role in relationship to each party to a transaction: our client, other parties, other attorneys. We play out those roles in each stage of the transaction, for example: drafting, negotiation, document revision and closing. We will act professionally throughout if our personal morality and motivation agree with the norms of professionalism; our professional lives must reflect our personal convictions. Those convictions must include an emphasis on building relationships.
Drafting a contract is often the beginning of relationship building or hindering. An initial draft can set the tone for much of what follows:
When I read the first draft of a contract, mortgage, or lease that someone sends to my client, I usually get the feeling that the drafter hates us. Hates, not abstractly, but deeply, really, vituperatively. I often read leases prepared by a landlord’s lawyer. As I wade through its turgid prose down to the last run-on sentence, I sometimes wonder whether my client (the tenant) really has the right to occupy the premises . . . When my client is the landlord, reviewing a form lease prepared by a powerful tenant can also leave me incredulous. Some tenant form leases provide for so many opportunities to withhold rent payments that I wonder whether the tenant is really willing to pay any rent at all. . . . Since most lawyers don’t litigate, and they spend most of their lives negotiating, it would seem a particularly good idea for them to discard old notions and to rethink their role in society. They are professional negotiators.
Id. at 606 (quoting Emanuel B. Halper, Lawyers Doing Battle, Real Est. Rev., Winter 1998, at 62-64). We are professional negotiators, or relationship managers. By virtue of the law, working its way through contracts, we can help provide the basis for relationships that may last many years. It is worth our time to do what we can to see that those relationships get off to healthy starts.
How do we start those relationships? Do we start with an even-handed contract or with one severely slanted toward our client? We know that the other side will take whatever we give them and negotiate it, asking for concessions. So will we not end up with a better deal for our client if we slant the first draft to our client and further the distance that the other side must go to try to obtain to a more even-handed deal? If we start with an even-handed contract, will the necessary result of negotiation not be a contract tilted toward the other party? Once we submit the original draft, how do we negotiate? Do we pursue every point to the death until the other side surrenders and gives us what we want? Do we roll over and play dead? Do we make a bit deal out of issues that do not really matter to us in hopes that the other parties will gloss over the ones that do?
Perhaps this is a place where the lawyer should consider his role vis a vis the client. This issue may be seldom if ever discussed or considered expressly, but it works itself out during the course of the representation. Professor Peter W. Salsich, Jr., in his article Professionalism for the Real Estate Law Practitioner, refers to characteristics of four possible relationship types between an attorney and his or her client:
(1) the “lawyer as godfather,” in which the lawyer is in control and the goal is a victory for the client;
(2) the lawyer as “hired gun,” in which the client is in control and client autonomy is the goal;
(3) the lawyer as “guru,” in which the lawyer is in control and the goal is client rectitude; and
(4) the lawyer as “friend,” in which the emphasis is on collaborative discourse between the lawyer and the client and the goal is for the client to achieve a good result.
Id. at 601-02 (citing Thomas L. Shaffer & Robert F. Cochran, Jr., Lawyers, Clients and Moral Responsibility at 5-54 (West 1994)). Perhaps over simplistically, the lawyer as godfather acts unilaterally in what he believes to be the good of the client. Id. at 602. The lawyer as hired gun acts in accordance with the client’s instructions. He neither questions the client’s moral or ethical position nor proposes or imposes his own. Id. at 603. The lawyer as guru considers his own conscience as well as the client’s expectations. The lawyer and the client make decisions separately. The lawyer can refuse to take any action requested by the client based upon his own sense of the morality of the situation. Id. The lawyer as friend works “in a spirit of mutual respect and trust, to accomplish a task in a way that can make each a better person. The lawyer cares for the moral growth of the client and, through effective use of listening and counseling skills, assists the client in deciding the right course of action.” Id. The definition of “friend” used here differs from the contemporary use of the word:
[T]he traditional idea of friendship [as used by Professors Shaffer and Cochran] had three essential components. Friends must enjoy one another’s company, they must be useful to one another, and they must share a common commitment to the good. Today, we tend to define friendship most in terms of the first component: friends are those we take pleasure in being with.
Id. at 604 (quoting Shaffer & Cochran, supranote 44, at 45 (quoting Robert N. Bellah et. al., Habits of the Heart: Individualism and Commitment in American Life 115 (1985))). Professor Salsichgoes on to observe that, according to Professors Shaffer and Cochran, lawyers “should be concerned with the third and most neglected aspect, the moral aspect of the relationship between friends.” Id. (quoting Shaffer & Cochran, supra note 44, at 45-46).
Friendship in this sense between lawyer and client may require flexibility in the relationship. A lawyer may at certain points need to play the roles of godfather, hired gun or guru. I suggest, however, that the traditionalconcept of friendship is the right place to start. Friendship, as classically defined, combines motivation with meaningful action. It provides the context for discussion between lawyer and client regarding ends and means in which the lawyer should feel free to offer his or her nonlegal perspectives (Ga. St. Bar R. and Reg., R. 4-102, Rules of Prof’l Conduct R. 2.1 cmt. 2 (2006)) on a particular course of action but should at the same time request and accept input and appropriate instruction from the client. Taking the types to the extreme, the lawyer as godfather or even guru will not ask for input and the hired gun will not offer correctives or suggestions. The lawyer and client operating as “friends” in the classical sense operate within active communication and influence.
Within the friendship model, the attorney should ask for the client’s input regarding whether the initial drafts should be strongly biased toward the position of the client or more toward a reasonable middle-ground. He should also take the client’s lead (within reason, the scope of the ethics rules and the lawyer’s good-faith professional conscience) regarding the tone and approach of negotiation. The client often has relationships with the other parties outside this transaction and sees this transaction within that context. This transaction may be only the next chapter of an ongoing relationship. The client may also believe that the legal fees could be reduced by starting with a middle-ground contract. On the other hand, the goal of the client may not be a fair and balanced agreement. Although the attorney may believe that a “fair and balanced agreement” may be in the best interest of the client, and should feel free to advise the client of that fact, the client’s determination should control.
In its report (the “ACREL Report”) dated September 27, 2004 (ACREL Ethics and Professionalism Working Group, supra note 34) the ACREL Working Group on Ethics and Professionalism said this in regard to one aspect of its consideration of revisions to the ACREL Statement of Professionalism (defined in the Report as the “Existing Statement”) adopted in 1997:
The Professionalism Working Group debated whether the Existing Statement should be revised to state, among other things, that lawyers should seek “fair and balanced agreements” as part of their professional obligations. We tested this premise against the ethical duties of a lawyer found in the Model Rules of Professional Conduct (“Model Rules”) . . . to abide by the client’s decisions concerning the objectives of the representation . . . and to reasonably consult with the client as to the means by which they are to be pursued . . . . Some viewed this as encouraging, if not requiring, a lawyer to inform the client of the spectrum of possibilities that may be available in negotiation of any agreement, including the cost and benefit of aggressive positions versus proposing or seeking a “fair and balanced” agreement. Many observed that lawyers often ignore their obligation to consult with the client about the means by which the objectives are to be pursued. . . . [T]o often lawyers accept a reactive scorched earth role, thinking the lawyer is doing what the client must want. [The Model Rules do not] require adherence to the tactics a client wishes to use to achieve the objectives if the objectives can be achieved another way, but we note that a lawyer would take a great risk by pursuing the lawyer’s tactics without client concurrence, after consultation.
There are limitations in the Model Rules to being a hired gun at the mercy of a client . . . . A lawyer is not required, or at liberty, to propose or reach a “fair” agreement if the client’s objective is to negotiate an advantageous one and that can be done without violating the other limitations of the Model Rules. A lawyer can and must provide helpful guidance to the client about the means by which the objectives are to be pursued, and that is where the discussion of the fair and balanced approach can be put on the table.
Id. at 9-10; see also, Ga. St. Bar R. and Reg., R. 4-102, Rules of Prof’l Conduct R. 1.2(a) (2006).
The Report continues that “the pursuit of a ‘fair and balanced agreement’ is outside the purview of a professionalism statement and could impinge on the professional responsibility of the lawyer to represent the client diligently . . . in attaining the objectives of the representation.” Id. at 10.
The Georgia Rules of Professional Conduct accord with this position and also give some additional insight regarding the distinctions between the client’s and the lawyer’s respective roles and responsibilities:
Both lawyer and client have authority and responsibility in the objectives and means of representation. The client has ultimate authority to determine the purposes to be served by legal representation, within the limits imposed by law and the lawyer’s professional obligations. Within those limits, a client also has a right to consult with the lawyer about the means to be used in pursuing those objectives. At the same time, a lawyer is not required to pursue objectives or employ means simply because a client may wish that the lawyer do so. A clear distinction between objectives and means sometimes cannot be drawn, and in many cases the client-lawyer relationship partakes of a joint undertaking. In questions of means, the lawyer should assume responsibility for technical and legal tactical issues, but should defer to the client regarding such questions as the expense to be incurred and concern for third persons who might be adversely affected.
Ga. St. Bar R. and Reg., R. 4-102, Rules of Prof’l Conduct R. 1.2 cmt. 1 (2006). Therefore, under the ACREL formulation and the applicable ethics rules, the godfather lawyer runs the risk of ethical breach for failing to consult with the client. The hired gun lawyer faces the professional expectation that he discuss the “fair and balanced” approach with the client. The guru attorney must recognize that, within certain boundaries, the client’s desires and intentions control. For the attorney as friend, this is the standard way of doing business, in part because this attorney recognizes that “civility and courtesy are not to be equated with weakness but are consistent with vigorous advocacy and zealous representation.” American College of Real Estate Lawyers, supra note 35.
The ACREL Professionalism Statement does adopt in regard to drafting the directive that the real estate attorney should “draft understandable documents consistent with the understandings of the parties.” Id. This aspiration reminds me of something that one of my mentors said: “You’re not drafting so that an uninformed person can understand. You’re drafting so that an informed person cannot misunderstand.” Contrast this attitude with that of another partner who instructed me to revise an agreement because it “didn’t seem thick enough.” Additional, unnecessary boilerplate satisfied him. The client got billed for additional, unnecessary time. The goal of the first approach is clarity and, to the maximum extent possible, simplicity and brevity, even elegance and craftsmanship. Professionalism requires that we also couple this goal with that of providing to our client the best value reasonably possible. The goal of the second is … ; well, I am not quite sure what the goal of the second is. I should have asked.
I return to one of the quotes at the beginning of this discussion: “What we sell clients is our time.” That is wrong. We get paid pretty much based on how much time we spend on a matter, but we do not sell time. So if not time, what? My favorite answer to that is “peace of mind.” Clients retain us and pay us to help them sleep at night. Working for the well-being of others is the essence of what we do as professionals. We get distracted by many things, like competition, increasing commercialism and depersonalization of individuals by large corporate firms—and greed. We must regain our focus, as individuals and a profession, by focusing on our personal and corporate professions (as in knowing “what we profess”), which cannot be separated. We must find the root and engine of and for that unified profession and then learn to work it out into our daily practices as part of balanced lives. That unity will be different for each individual, because each person brings to the practice a unique background, personality and “community of memory.” The legal profession will rediscover its own soul only in recognizing, learning from and building on that diversity of private histories and identities. This is not, will not and cannot be a “clean” process. That is the problem with relationships: they do not have clear rules or edges. We just have to accept that:
The error is on the part of those who want a neat and simple moral system worked out on a coherent and fully rational level. They need the comfort of a system without contradictions, but that simply isn’t found in the real world. One of the most difficult aspects of legal analysis that troubles new law students involves the tension and complexity of dealing with the intellectual ambiguity that characterizes legal thought. But for the lawyer that is only the beginning, and perhaps the easiest part of the process.”
Barnhizer, supra note 2, at 455. It is, though, a process in which we must persevere if we are to find joy and fulfillment in our profession, which will have life only as we live it out into our practices. A client relationship, and a transaction, is a collaborative conversation between lawyer and client, each playing a specific role. That collaboration should find its way into every lawyer action, from drafting, to negotiation, to closing. Only in such a collaboration, in which we use our skills both to affect and effect our client’s goals, do we find our calling.