My thoughts on being a lawyer and on the state of the practice continue to gel (or ferment, I guess, depending on one’s own experience and perspective). My first attempt to put it into writing was a paper entitled “Power of Profession” that I presented at a CLE meeting a few years ago. I begin with a couple of caveats and requests. First, forgive me if some of the citations are not per the Blue Book. I have had no need to refer to that for a while. Second, don’t be surprised if I change my mind on some of the stuff in here, or have already: as I said, gelling . . . or fermenting. Lastly, an associate that I was working with at the time, Angela Ligouri, worked on this with me. She helped me clean it up.
These are some of the lessons in professionalism taught me by early “mentors”:
“Marriage and the practice of law don’t mix.”
“If you’re getting eight hours of sleep every night, you’re not working hard enough.”
“If you’re not representing everyone at the table, you’re not doing your job.”
“We own your time. It is up to us what we lease back to you.”
“We used to have room in this firm for people who wanted things out of life other than money, but we don’t anymore.”
“What we sell to clients is our time.”
These are pretty much verbatim quotes. I do not recall any of them being said in jest. I worked for serious people.
Such was my introduction to life in the law, and I bought into it. I worked just like the partners wanted me to for three or four years, and I was rewarded. I received strong raises every year. One partner told me that not only would I make partner, but I would make it early. Everything was great, but then I was faced with decisions that pitted my family against the firm. In one of the most difficult, but also most important, decisions of my life, I chose my family. My star at the firm started to dim. The firm (speaking to the attorney to whom I had largely hooked my star) told me that I needed to look elsewhere for employment because of my lack of loyalty. The stress of that time, and my severe disappointment of having let the “ring” slip away, affected my psyche. I deal with the ramifications to this day.
In trying to make sense of it all, it is not enough simply to say that the perspectives of my partners were absolutely wrong. To some extent, for that stage in my career, there may have been some truth in them. Our practices, like our lives, go through stages. In some stages we get less sleep than in others and in some our marriages and other personal relationships become strained as we try to work out the right balance. These stresses may be unavoidable from time to time, but they, and the misguided perspectives from which they often derive, must not characterize our lives and thereby become part of our “character”.
We must learn to live in the reality that the practice of law does not own us; that we do not live entirely within it or exist for it. Instead, we must learn to live out the reality that the law exists for us and for society. Our lives and our community are broader than the law. We can contribute meaningfully to the law only if we bring into it what is uniquely ours. What is “uniquely ours” by definition finds its life, at least initially, outside the law. “When people start to ask questions about ethics, it is because there is something there—an answer that can appeal to some motivation they already possess.” W. Bradley Wendel, Morality, Motivation, and the Professionalism Movement, 52 S.C. L. Rev. 557, 588 (2000). “Lawyers, after all, are people first and learn the values of our society long before they come to law school and enter law practice.” David Barnhizer, Princes of Darkness and Angels of Light: The Soul of the American Lawyer, 14 Notre Dame J.L. Ethics & Pub. Policy 371, 411 (2000).
II. What We Profess
The idea of “profession” is particularly religious in its derivation:
The concept of professionalism emerged from the religious orders of the Middle Ages. To be a professional was originally to profess something, a commitment to one’s religious order. Some of the religious orders developed expertise in special disciplines: divinity, law, and medicine. The term ‘professional’ came to describe those with special expertise in these areas.
Robert F. Cochran, Jr., Professionalism in the Postmodern Age: Its Death, Attempts at Resuscitation, and Alternate Sources of Virtue, 14 Notre Dame J.L. Ethics & Pub. Pol’y 305, 306-07 (2000). Related is the idea professional as a “calling”:
Roscoe Pound, the great jurist, answered the question[what is a profession] by invoking . . . the old religious term, a “calling.” In an oft-quoted line, he said, “The term [profession] refers to a group . . . pursuing a learned art as a common calling in the spirit of public service—no less a public service because it may incidentally be a means of livelihood. Pursuit of the learned art in the spirit of public service is the primary purpose.”
Pound refers to a profession as a calling, and he links a calling with the pursuit of the common good. The religious tradition of the West made this connection in its Scriptures and so did the seventeenth century Puritan, William Perkins, influential on the American scene. He defined a calling as that to which God has appointed us to serve the common good. So conceived, all lines of work, but especially those callings that serve goods basic to our common life, such as law, medicine, and religion, ought to contribute to the common good.
William F. May, The Future of Callings – An Interdisciplinary Summit on the Public Obligations of Professionals Into the Next Millennium: Money and the Professions: Medicine and Law, 25 Wm. Mitchell L. Rev. 75, 82 (1999). Consider also the perspective that sees “the struggle to ‘redeem the world through justice’ as central to the self-conception of Jews as a chosen people.” Peter Margulies, Progressive Lawyering and Lost Traditions, 73 Tex. L. Rev. 1139, 1149 (1994-1995) (reviewing Milner S. Ball, The Word and the Law (1993) and Anthony T. Kronman, The Lost Lawyer: Failing Ideals of the Legal Profession (1993)). The root idea of a profession is therefore the commitment to a particular work as part of, and in response to, a precedent commitment to something larger and more inclusive. The precedent commitment encompasses all of life, and the related commitment to a certain work is an expression of that prior commitment in a particular area of life, one’s work. Rightly understood in this historical context, profession is not something that can be lived only in private. It works out, expresses and completes itself in community.
The precedent commitment is to something totally “other”, something outside of and bigger than (but yet inclusive of) the second commitment and the person making it. It must be powerful and important enough to motivate the making of the subsequent commitment and sufficiently strong and dependable to hold up and support it because it cannot stand on its own. The subsequent commitment is not independent of the first. It is entirely dependent on the first yet at the same time it completes the first by “working it out” in daily life. Even if, for example, the motivating commitment is simply “[t]he aspiration to belong to a profession whose social meaning corresponds to the moral longing of its practitioners [,]” (Wendel, supra note 1, at 599) that moral longing has to come from somewhere outside the profession itself.
This concept of profession is admittedly religious. The professionalism movement itself acknowledges this fact, perhaps unwittingly:
In 1986 the American Bar Association (ABA) Commission on Professionalism issued a report [that] fanned into flame a concern that had been smoldering since the last 1960’s. Anointed with this Pentecostal fire, apostles of professionalism have enlisted an imposing army of converts State and local bar associations, even a federal judicial circuit, have offered their constituents an array of plans for retaking the Holy Land of legal practice, and particularly its most sacred shrines, the courts of law, from host of infidels, heretics, and apostates. . . . From the academic cloister, the work has generally been one of benediction, if not quite enthusiasm . . . . The academic conclaves have been widely ecumenical . . . .
These religious metaphors come from the professionalism movement itself. Its formal proposals tend to call for a return to a common professional faith—the supposedly shared beliefs and commitments that are enshrined in documents described as “Creeds,” “Oaths,” and “Pledges” of professionalism. Even when these documents are called “codes,” they read more like the Decalogue than the Uniform Commercial Code or, for that matter, the Model Code of Professional Responsibility. The former titles imply, with perhaps a more profound accuracy that their authors intended, that the documents they describe are articles of faith.
Rob Atkinson, A Dissenter’s Commentary on the Professionalism Crusade, 74 Tex. L. Rev. 259, 262-63 (1995-1996). The religious allusions are not accidental. The legal “profession” that developed “borrowed a great deal from the religious tradition in the giving of vows, the swearing of oaths, and the dedication to something beyond just employment. LeRoy Costner, Law: A Profession or Just Another Job?, The Fla. Bar News, Sept. 15, 2006, at 6. The allusions continue to derive from the need to find innate value in what we do as lawyers. As our society, and therefore the legal profession, has moved away from its religious antecedents, the legal profession has struggled to create a new faith sufficient to motivate its adherents to act and to do so rightly. That new faith, as the original, must both motivate and reliably guide to do right. The test of a faith is whether or not it does those two things.
American religious tradition perhaps provided a firm basis for a sense of legal collegiality and professionalism when the profession was, along with the power structures of the country in general, homogenously Anglo-Saxon and Protestant and when religious faith and its communal expression was a vital part of community life. Things have changed and this basis is no longer firm.
Perhaps society and the practice of law have become secularized to the point of depriving daily life of “faith” in anything or Someone outside itself. Research suggests that not to be the case. See, e.g., Jerry Adler, In Search of the Spiritual, Newsweek, Aug. 29, 2005, available at http://www.msnbc.msn.com/id/9024914/site/newsweek/. Our national faith may no longer be a reformational protestant faith, but there does seem to be some type of faith, even a mystic faith.
A second option is that our diversity, including but not limited to our religious (and nonreligious) diversity, deprives us of a basis for that commonality of perspective that is required for a unified view of what we do and why we do it. One commentator asks, “If moral thought is rooted in the presuppositions of communities, by what right do members of one community impose professional obligations on those of another?” Cochran, supra note 3, at 310; see also Wendel, supra note 1, at 578. The question is, of course, loaded. In the context of this discussion, moral thought rooted in communal presuppositions need not impose anything on those outside the community.
Diversity has indeed happened. One observation is that until relatively recently, those in control of the American bar were “male, Anglo-Saxon, upper-class Protestants who attended elite law schools” and practiced in large urban law firms. Cochran, supra note 3, at 307. Legal ethics were therefore “the ethics of gentlemen—the generic, Judeo-Christian ethics of the upper class churches.” Id. (citations omitted). A large portion of the bar now consists of those who are not gentlemen, Christian, upper-class or church-going:
Over its history, membership at the bar has gradually opened to outsiders despite the resistance of the bar’s professional elites. Women, the Baptist and Methodist descendants of the Great Awakenings, the Jewish and Catholic children of immigrants, and the great-grandchildren of African slaves found places as members of the bar, thought not generally in its leadership. . . .
The elitist foundations of professionalism in the United States crumbled in the 1960s and 70s for several reasons. The diversity of the profession greatly increased. . . . Opening the bar was a matter of justice, but as the bar has grown more diverse, elitist appeals to professionalism have had decreasing appeal. It may be that “[f]rom everyone to whom much has been given, much will be required,” but the new members of the bar had not been given much. Many of those from the middle class felt that they had earned it. Many of those from minority groups felt that they were owed more. The new admittees questioned the teachings of their professional elders. Why should they trust the moral instruction of those who had excluded their mothers and fathers? . . . [C]alls to professionalism no longer served as a source of inspiration.
Id. at 308-09 (citations omitted). Increased diversity within society generally and the bar particularly resulted in a diversity of moral viewpoints and motivations instilled prior to life in the law. The learning of a sense of self and place begins in community. See id. at 314. This community includes, for better or worse, family, ethnicity, neighborhood and, for many, communities of faith. Community, long before any cognizance of the law, sets the table for a rich and ancient moral language:
It is a “biblical and republican language” which has evolved in and through the experiences of enduring “communities of memory.” Religious bodies, ethnic and racial groups, families, neighborhoods—these have been communities which shaped and extended that language. Americans know [this] language well, and their best “habits of the heart” have been formed in such communities of memory.
Leslie E. Gerber, Can Lawyers Be Saved? The Theological Legal Ethics of Thomas Shaffer, 10 J.L. & Religion 347, 351 (1993-1994) (citations omitted). Some observers suggest that we should look to these “communities of memory” as sources of professional virtue, as motivations and examples of doing right and good and that we should “encourage these communities to develop moralities (and theologies) of lawyering.” Cochran, supra note 3, at 314. They challenge lawyers and law students to “think about the implications of their own moral traditions on their lives as lawyers.” Id. at 318. “It may be . . . that the key to renewed virtue in lawyers is to look within that diversity for moral insight. The very thing that caused the death of the old professionalism may provide a possibility for moral renewal.” Id. at 314.
For example, Thomas Shaffer has investigated the sociology associated with law practice in various ethic settings. Regarding Italian-American lawyers, he describes the “very special virtue of rispetto in the Italian community, a set of habits and feelings that add up to a skill at being-in-community, especially the community of the extended family.” Gerber, supra note 15, at 359-60. He also tries to understand “how lawyers learn possibilities for moral colleagueship with one another and with clients in non-legal associations like church, family and ‘the old boys standing around in front of the courthouse.’” Id. at 361. Shaffer understands that law is not learned, taught, practiced or lived within the hornbook or the code. It is lived in relationships. We live our current relationships on the shoulders of our past relationships and what we learned from them. Shaffer and a student of his work summarize part of the analysis in terms of friendship:
The heart of a renewed legal ethic will thus be the concept of friendship: friendship grown and tested in the hard work of legal mastery and litigation; friendship in long, personal associations with clients whom one refuses to treat as parts of a whole; friendship between older and younger attorneys as the latter submit to the superior attainments and practical wisdom of the former; friendship sustained and extended by collaboration in projects important for the wider community. . . . To be in a profession . . .is a way to become a good person. These practices are occupational extensions of friendship and, like friendship itself, they are collaborations in the good. Friends make one another better.
Id. at 361. Relationship and friendship may be two core commonalities among the various “communities of memory” from which the diversity of the legal community is drawn. They may therefore provide a meaningful common vocabulary for professionalism. From relationship and friendship derive stories that are spread around a community and its next generations. These narratives increasingly bind the community through time. Consideration of ethics derives from those narratives of relationship and friendship that focus on individuals who do the right things in the context of their various relationships and who take responsibility. Id. at 353-54. Stories about historical figures such as Mahatma Gandhi, Martin Luther King and Mother Theresa come to mind. Fictional accounts of individuals such as Atticus Finch resonate with others. Some of us respond most directly to narratives revolving around the central personages of our faith. In my own faith’s tradition, for example, the teachings of, and stories about, Jesus Christ have the most telling impact upon my life generally and upon my life as an attorney. Each of these individuals originates from a unique community and speaks to what it means to be in relationship, and even friendship, with others. Their lives speak across communities.
This approach to understanding “professionalism” runs contrary to how the “profession” has responded to perceived or actual deficits in the “professional” lives of lawyers. One commentator puts it this way:
Law schools and bar associations separate the professional from the personal. What one’s church, synagogue or other community of memory teaches is relegated to one’s personal life, not something which should have an impact on what one does as a professional. The issue is framed in terms of professional values versus personal values, and of course, in trying to decide what to do in one’s professional life, professional values are supposed to win out. However, increasingly, professional values have little power to inspire. In addition, it is wrong to suggest that values formed within particular communities are merely “personal values”; I have little faith that the person, acting alone, will come up with values professional or otherwise, that are worth living by. But, our religious and other moral traditions provide far more than ‘personal’ values. They draw on memories, stories, virtues and rules that have their source beyond living memory; they have evolved over long periods of time, based on the wisdom of many that have gone before. That is not to say that they are perfect; they are not. But they are resources that their members should look to, explore, critique, and draw from.
Cochran, supra note 3, at 315 (citations omitted). He goes on to suggest that law schools include in the curriculum opportunities for students to explore their own background traditions and the applicability of those traditions to the practice of law. Id. at 319. If we are to capture such a holistic restoration of the practice, we must move beyond the “delusion of young, inexperienced lawyers to think that they can separate their personal from their professional lives and their personal from the professional morality. The current jargon refers to this dichotomy as ‘role-defined ethics.’ It is true intellectual rubbish.” Daniel R. Coquillette, Professionalism: The Deep Theory, 72 N.C. L. Rev. 1271, 1272 (1993-1994). In my experience, the delusion is not limited to young, inexperienced lawyers. Age does not exempt an attorney from that “dissatisfaction [that results from] the disjunction between the moral principles that give meaning, both personal and social, to the practice of law and the contemporary legal workplace, which gives very little weight to ethical matters other than a narrow range of norms such as confidentiality and loyalty to one’s clients.” Wendel, supra note 1, at 599. “The problems many lawyers experience arise from the difficulty we face in compartmentalizing our personal moral selves.” Barnhizer, supra note 2, at 429.
The respective values of the various communities, the “personal” values, will, of course, conflict. One response to this reality is to exclude them from any public or professional discourse. That approach divorces selfhood from public expression. The self expresses itself in community, through action and speech. If expression and action reflective of personal conviction are disallowed, then the very sense of self is threatened. “[V]iolating the conception of oneself that forms the basis of one’s practical identity is intolerable.” Wendel, supra note 1, at 595.
Another, more constructive response is to use the various community values as the basis for understanding and discussion. Such discourse is an opportunity for each person to “seek first to understand and then to be understood.” See Stephen R. Covey, The 7 Habits of Highly Effective People 235-60 (1990). The very discipline of seeking first to understand enhances community by building understanding. We do not have to agree, but we must learn how to disagree without sacrificing our relationships. One of the social functions of lawyers is to mediate disagreements and bring them, ideally, to a constructive ending. We can practice mediation and understanding among ourselves, within the legal community, as a vital part of creating and maintaining relationships and moving to friendships.
Again, I am aware of the arguments of others that this attempt to find universals that cross community lines is futile at best, but communities are a given. They may be fertile fields within which to consider the meaning and the living out of one’s commitments that constitute professionalism.
Thus, the root idea of a profession is a commitment to a particular work for the good of society as part of, and in response to, a precedent, overarching commitment to a deeper, larger, more inclusive conviction. This conviction must originate outside the profession itself; for example, from the communities from which come attorneys. Professionalism is living in accordance with that conviction, with what we “profess” to believe in, thereby evidencing the reality of what we profess. It is “walking the talk.”
For many of us, that overarching belief and commitment is in and to the God of the Judeo-Christian Bible and the truth that we believe is found in the Bible. This faith is the cornerstone of my own community of memory. I do not reference it to insist upon its “rightness” or its “exclusivity,” but to describe an important part of what I personally bring to the discussion of professionalism. I cannot and must not leave that part of me behind. Further discussions with my colleagues in the legal community may, and I suggest should, include assertions of rightness and exclusivity sincerely held. Those discussions will at times be difficult and uncomfortable. We do not avoid necessary discomfort in representing our clients. We should not avoid it in building community.