Our Oath of Professionalism
by Mark Fogg
Four questions every lawyer must regularly ask themselves
Several years ago, when I became chair of the CBA/DBA Professionalism Committee, I had originally equated the concept of professionalism with civility in the practice of law.
I had already worked with John Baker and others as a member of the Metropolitan Conciliation Panel since 1998, trying to informally work out professionalism disputes between attorneys, often at the referral of a judge. These disputes typically involved one attorney who was overly aggressive, or an attorney who was assuming the worst about the intentions of the other lawyer. These attorneys thereby rationalized a series of combative, preemptive strikes against the other lawyer in a case.
In survey after survey, attorneys cite "lack of professionalism" as one of the major problems with the profession today. Many attorneys can cite specific instances of incivility; however, many are unable to define professionalism. "I know it when I see it, it’s kind of like ethics, but somehow different."
While most can cite specific instances of incivility, many are unable to define professionalism.
The inability to articulate a comprehensive definition of "professionalism" is a real obstacle currently blocking the changes we think are necessary for the profession. Although civility is an important concept within professionalism, it by no means defines it. Civility is more of a product that comes from practicing the demanding pursuit of professionalism.
One of the best definitions of professionalism is in the Colorado Attorney Oath of Admission:
I will support the Constitution of the United States and the Constitution of the State of Colorado; I will maintain the respect due to Courts and judicial officers; I will employ only such means as are consistent with truth and honor; I will treat all persons whom I encounter through my practice of law with fairness, courtesy, respect and honesty; I will use my knowledge of the law for the betterment of society and the improvement of the legal system; I will never reject, from any consideration personal to myself, the cause of the defenseless or oppressed; I will at all times faithfully and diligently adhere to the Colorado Rules of Professional Conduct.
Look closely. Nestled between the promise to support the Constitutions and the promise to adhere to the Rules of Professional Conduct are a series of professionalism promises. Here, we contract with the public to act with honor, in exchange for the public granting us a lot of power to make complex decisions that have profound effects on people. These promises require us to regularly perform the following self-inventory:
1. What have I done to improve the legal system to help ensure that participants will conduct themselves in a manner that demonstrates respect for the law, preserves the integrity of the judicial process and promotes access to justice?
2. What have I done to improve and enhance the image of the legal profession in the eyes of the public?
3. How did I support programs and activities to educate the public about the Rule of Law and the American legal system?
4. How did I improve relationships with other lawyers, mentor new lawyers and promote a system that fosters respect and trust among lawyers?
Although no definition of professionalism is ever complete, the CBA/DBA Professionalism Coordinating Council put a lot of thought into the following, helpful definition:
Professionalism goes beyond the observance of prescribed ethical rules. It strives to serve the best interests of the Bar, clients and the public in general by surpassing minimally acceptable standards of conduct. Professionalism reflects the appreciation by practitioners that the ability to practice law is a privilege conferred on and undertaken by a limited number of society’s members, and that being granted that privilege invokes certain attendant responsibilities, standards and expectations. Professionalism requires that lawyers conduct themselves in professional settings in a manner that demonstrates respect for the law and fosters decorum and integrity of the judicial process. It preserves and enhances the image of the legal profession in the eyes of the public. It supports programs and activities to educate the public about the law and the American legal system, and it fosters respect and trust for and among lawyers.
Case outcomes and achieving our clients’ goals are very important. But all too often, our single-minded, all-consuming focus on these goals comes at the expense of neglecting the other promises we made when we became lawyers.
At times, we need to take ourselves out of the stress and intensity of the adversarial process, and to support the cooperative model of improving the system of justice of which our clients and cases are parts. Only with this balance will the issues of incivility be minimized.
Incivility is the symptom of a deeper problem. Incivility results from our failure — as a generation of lawyers — to emphasize and reinforce the requirement that each one of us must pursue the full breadth of professionalism goals.
For me, the bar associations have helped provide some of this balance. Regardless of whether we represent mainly plaintiffs or defendants, or what area of law we primarily practice, we must all work together to achieve these common goals of professionalism.
Only with this balance will the issues of incivility be minimized.
Unfortunately, there is no "right" time to obtain this balance. Graduation from law school, making partner or establishing a practice do not make life simpler or provide more time. The need for this balance must be ingrained in law students, fostered in the mentoring of new lawyers and expected of long-time practitioners and judges.
I encourage you to seek — or to maintain — your balance by pursuing these professionalism goals in the venues most meaningful to you.