Bar Journal - June 1, 1999
President's Perspective on Professionalism
By: Attorney Randall F. Cooper
During my year as President of the New Hampshire Bar Association, I have emphasized the importance of professionalism in the life of the lawyer and in the survival of our profession, and as such I am extremely appreciative that the New Hampshire Bar Journal is devoting this issue to this subject. This theme has been a learning experience for me both individually and professionally. As we began to define professionalism in the context of the practice of law in New Hampshire, I came to understand why I love being a lawyer.
I started my year as president reminding myself to appreciate being a New Hampshire lawyer by continuing to honor the traditional characteristics of the practice of law in this state - making deals by handshakes, not taking advantage of another's mistakes, and relying upon a colleague's word. Twenty-two years earlier, when I was admitted to the Bar of this state, the President of this Association charged the new admittees to continue the tradition that a New Hampshire lawyer's word was his or her bond. As my year as President comes to close, I believe that the future survival of this profession is dependent not only on a public belief, but a public reliance on the "honest lawyer" whose loyalty is to a just and fair solution to all problems under the rule of law, and much less to a loyalty to either the client's wishes or to the adversarial system.
As this year has unfolded, a myriad of important issues have risen globally, nationally, and within this state. While on a national level, a discussion was beginning on judicial independence and accountability, unfair criticism of judges, and public confidence and trust in the judicial system, these subjects have reached epic proportions in our state. The courage of our Supreme Court in issuing the various Claremont decisions was distorted by the improvident remarks of lawyers on both sides of the issues, which in my opinion, were caused by "zealous" representation of the client, and less by a search for justice and fairness. Nationally, lawyers from both sides of the aisle spouted rhetoric on the importance of the rule of law while addressing truth and honor at the highest level of national leadership, and then demonstrated the hypocrisy of the political process when they reversed themselves in order to justify their respective positions on their support of the rule of law in protecting basic human rights in Croatia. Similarly, within this state, vicious attacks on the integrity or our judiciary take place under the guise of reform, in order to avoid courage and leadership in addressing an arcane and patently unfair system of public funding arising out of a pledge to a newspaper editor, long since dead. These public attacks occurred while furious, and, unfortunately, public infighting ensued among the superior court and the probate and district courts over family jurisdiction.
It is no wonder that the public's trust and understanding in the law and lawyers in general has deteriorated. A recent national survey taken by the American Bar Association on public trust and confidence in the judicial system found that Americans in general believe there are too many lawyers, there are too many lawsuits, that the typical case is frivolous, that the typical lawyer is willing to lie and cheat for his or her client, and that lawyers create their own work. Americans generally believe that lawyers are dishonest, selfish, greedy, aloof, and charge too much. Lawyers ranked below almost every other learned profession for honesty and integrity.
The correlation between the continuing decline in public trust in lawyers and the system of justice, and the public perception that lawyers will lie and cheat for their clients (or at least attempt to keep the judge or jury from learning the truth) cannot go unnoticed. The Rules of Professional Conduct recognizes the importance of truth and integrity in Rule 3.3 regarding 'Candor toward the Tribunal' and Rule 4.1 regarding 'Truthfulness in Statements to Others' which prohibit attorneys from knowingly making false statements of material fact or law to both the court and others. But do our actions speak as loud as our words? How many of us have chosen not to probe the stories of our clients or witnesses, taking them at face value, thus eliminating any probability that we as lawyers "knowingly" are relying on false statements? How many of us have briefed our clients or potential witnesses on the law and the consequences of certain acts before asking for the facts, possibly resulting in a convenient set of facts or the use of the right buzzwords to fit the law? How many of us have made misrepresentations in negotiations by intentionally over-or understating a position, or ensured ourselves that our client has authorized no more then we want at that moment so that we can honestly say that my client hasn't authorized anything more, or that my client doesn't have any more room? While the rules of evidence or the exclusionary rule may mean something to lawyers, to the public they mean nothing more than hiding the truth.
Paul G. Haskell, professor of law at the University of North Carolina at Chapel Hill in his recent book entitled, Why Lawyers Behave As They Do, submits that the root of the problem is our interpretation of our duty to our clients. Particularly, a perceived duty to obtain whatever we can for our clients without regard to the legitimate interests of or harm to others including the public at large. Roger Cramton, a professor at the Cornell University Law School observed in his keynote address to the ABA's 1996 Symposium on Teaching and Learning Professionalism:
[T]he legal profession has neglected its central moral tradition for the modern heresy, endlessly repeated in multiple settings, that "the client comes first" meaning "first and only." Some years ago the fidelity and loyalty owed to the clients was balanced by a generally accepted understanding that the lawyer's primary obligation was to the procedures and institutions of the law. When tension arose between client interests and those of the legal system, the lawyer's respect for the rule of law - the maintenance and improvement of just and efficient legal institutions - almost always prevailed. Our greatest need today is to regenerate this common faith.
Professor Cramton went on to examine the traditional moral obligation of the lawyer, who in consideration for being granted by the public trust the gift of attorney-client privilege, was expected to engage with his or her client "in a two-way process of moral suasion, work[ing] out a course of action that is right and good. [For j]ustice does not flow from government alone [but it] is a gift that good people give to one another." Or as Abraham Lincoln said, "As a peacemaker, a lawyer has a superior opportunity of being a good man." In 1963, Everett Hughes wrote that the central feature of professionalism was a doctrine of credit emptor - "let the buyer trust" - rather than the commercial maxim of caveat emptor - "let the buyer beware." Society counts on the law, and on lawyers as its servants, to spread such feelings of trust through the community. Instead, too often, we help weaken them. [The Betrayed Profession, Sol M. Linowitz, John Hopkins University Press, Baltimore (1994).]
The constitution is quite clear that as a unified bar we are charged with "ensuring that the public responsibility of the legal profession is effectively discharged," and in so doing, we have six sub-charges:
- To improve the administration of justice;
- To foster and maintain high standards of conduct, integrity, competence, and public service on the part of those engaged in the practice of law;
- To safeguard the proper professional interests of the members of the Bar;
- To provide a forum for the discussion of subjects pertaining to the practice of law, the science of jurisprudence and law reform, and the relations of the Bar to the public;
- To carry on a continuing program of legal research and education; and
- To establish cordial relations among members of the Bar.
What is the public responsibility of the legal profession? Some of those public responsibilities are certainly found within the specific purposes in the Bar's charge. Some of those public responsibilities may be found in how we define what we do. Jerome J. Shestack, immediate past-president of the American Bar Association, defined a professional lawyer as "an expert in law pursuing a learned art in service to clients and in the spirit of public service; and engaging in those pursuits as a part of a common calling to promote justice and public good." Professor Cramton concludes, "The need today is to regenerate the ideal of the law as a public profession with large public responsibilities and to give meaning to those responsibilities by the development of principles and narratives that give life to them."
Undoubtedly, all such public responsibilities find their feet firmly planted in our country's commitment to the rule of law. When our founding fathers made that decision in drafting the U.S. Constitution (and the N.H. Constitution), they placed an awesome responsibility on lawyers. We became an indispensable part of the system as officers of the court. The importance of our role has not diminished, but only increased over time with the complexity of the law. It is because lawyers are as integral to the rule of law and effective government that we owe a special responsibility to the public at large, and not just the client. It is through the reawakening and re-resolve that we are a public profession, with the ethical responsibility as officers of the court and counselors to guide our clients to do justice, that we in fact have impact well beyond our lifetimes on the greatness of this nation and state, and on humanity in general. "The only real road to image improvement follows the route of improved public service. The extension of that lesson is that if the legal profession and the courts worry enough about public service, the matter of public image will take care of itself." Clarke, The Judiciary as Guardian of Professionalism, ABA Section of Legal Education and Admission, and Standing Committee on Professionalism, Teaching and Learning Professionalism, Symposium Proceedings, October 2-4, 1996.
But is it enough for us to secretly and under the protection of attorney-client privilege attempt to guide our clients, while to the appearances of the public we are advocates in an adversarial system? It is the opposite of Attorney Hughes' central feature of professionalism that the law has emphasized, and our profession has been viewed with the Latin warning "caveat emptor" - let the buyer beware. Lawyers and judges through common law changes including implied warranties, covenants of good faith and fair dealing, and negligent misrepresentation, have steadfastly attempted to move society towards the goal of letting the buyer trust, but without much credit. That may be one of the prices we pay for steadfastly holding on to an adversarial system, which necessarily requires a member of our profession articulating and advocating both sides of the issue, not necessarily advocating for a full and complete disclosure of the facts, or a truly just solution. Thus as a profession, we win and lose every case that is tried.
At the beginning of this century, the American Bar Association was warned that the adversarial system is as much the bane of our system as justice is its boon. While we have begun to develop other means of dispute resolution, they are still viewed by their very description as being an "alternative" to an adversarial resolution. As we enter the next millennium, it is time for our profession to undertake a public responsibility that every individual is entitled to the basic human right of being protected at all times by a rule of law, equally and justly applied, after a full and complete disclosure of all facts. The means of achieving that responsibility is a dedication to truthfulness and honesty, so that everyone we meet and deal with justifiably relies without question or doubt that have just dealt with an "honest lawyer."
Attorney Randall F. Cooper is a partner with the firm of Cooper, Deans & Cargill, P.A., North Conway, New Hampshire and is Proud to be a New Hampshire Lawyer.