Taking a Look at Ourselves: An Essay on Professionalism

By Wayne S. Hyatt

I am not a professor of ethics or professional responsibility. Nor am I an "expert" schooled in the finer points of theoretical professionalism. I am just a practicing lawyer…and a real estate lawyer at that. So what warrant do I have to write about and to speak about "professionalism"? Perhaps being a lawyer, proudly a real estate lawyer, who, as do many others, cares about his profession is all the warrant I need. You may be the judge of that.

Fall 2008 marks my 40th anniversary as a member of the bar. Except for three years' service in the U.S. Navy, I have engaged in the fulltime practice of law those 40 years. Because of the rather unique nature of my practice, I have had the privilege of working with clients—and local counsel—in all but two or three states. I have seen true professionalism. Regrettably, I have also experienced the antithesis of a true professional. Those experiences, positive and negative, also help shape one's view of the very significant but too often misunderstood topic of "professionalism."

This essay does not cite scholarly reports or bar commissions. It does not cite cases. It relies instead on experience and on ACREL's own well-considered Statement of Professionalism, and it is one person's view of what it means and requires to be a professional. It is certainly not a statement that the author is a model except to the extent he—and each reader of this essay—can aspire to being the best we can be.

I hope it helps you in your professional life.

When I began practicing law 40 years ago, people did not talk about professionalism. Professionalism as a defined, separate topic was not something that received much attention or concern; people practiced as professionals but did not talk about "professionalism." The bar was small, and the bar did not rely upon a businesses model for how lawyers and law firms operated. Lawyers' firms were predominantly partnerships, and law practice was a profession, not truly a business.

Things have changed.

I have a great deal of trepidation about being charged with preaching without a license when I start talking about professionalism, but that is what this article is about. As the practice of law continues to change and as economic conditions press ever harder on the business model law firms have employed for the last 30-plus years, professionalism becomes ever more important a topic for discussion. That topic and all it entails is a subject that helps provide a way through the snares of today's practice of law.

When we fail to see ourselves as professionals and when we become more and more enmeshed in situational ethics as opposed to applying a baseline set of principles for how we should act as lawyers, we fall victim to much the same thing that happens when someone abuses a substance. Our standards change. When our standards change, we change. One comes not to know which he or she, which persona, is the true person. Burnout is heightened, and there is a loss of reputation. When there is a loss of reputation, there is a loss of capacity as lawyers. This loss naturally follows because it is our reputation that gives us credibility and respect as attorneys and, to a considerable extent, as people. When our credibility and respect are lost or seriously diminished, we are unable to do that which should be done.

So ask yourself as you proceed through this discussion: "How do I see myself?" Does your role, and the way you play that role, allow you to be a professional? More importantly, ask yourself, "What example do I set for other attorneys?" "What example do I set for attorneys in my firm?" What example do you set for attorneys generally? And is that example, your example, one of a professional practice?

What is Professionalism?

What do we mean when we talk about professionalism? Some argue with conviction and persuasiveness that the lawyer's goal should be to think like a lawyer. I guess that is fine as far as it goes, but what does it mean, and is it enough? More importantly, we must ask ourselves what it means to act like a lawyer or to act as a lawyer should act. Thus, the truly important question is, "What are the standards for professionalism?" And should not these standards be as ingrained in our system as securely as is the method of "thinking like a lawyer"?

When law schools graduate new lawyers-to-be, the faculties hope they have taught those young men and women how to think like lawyers. But have they taught them how to practice as lawyers? And having been taught, have we as lawyers allowed the vagaries of today's world and today's profession to change what we know about how we should practice? I would suggest that the answer to the question, "Is thinking like a lawyer enough?" is "No." I would further suggest that anyone can be taught to think a certain way, but being a lawyer, being a professional, requires considerably more.

One of the writers that I truly love to read and to teach, and who has had a great deal of impact on me, was the son of a lawyer although he himself was a professor. His name was C.S. Lewis. I am sure that you have read either for yourself or for your children something that he wrote, whether it was The Lion, the Witch and the Wardrobe or something more advanced. Lewis made a comment in one of his books that was not about professionalism but that fits our point precisely. Talking about the virtues, he said that there is an important point about the virtues that ought to be remembered.

There is a difference between doing some particular just and temperate action and being a just or temperate person. Someone who is not a good tennis player may now and then make a good shot. What you mean by a good player is the man [or woman] whose eye and muscles and nerves have been so trained by making innumerable good shots that they can now be relied on. They have a certain tone or quality which is there even when he is not playing, just as a mathematician's mind has a certain habit and outlook which is there even when he is not doing mathematics. In the same way a man who perseveres in doing just actions gets in the end a certain kind or quality of character. Now it is that quality rather than the particular actions which we mean when we talk of "virtue."[1]

I think Lewis would forgive me if I said it is that quality of action rather than a particular action which we mean when we talk about being a professional. So that is one step toward a definition of that term.

Another step may come in answering the questions, "What is the difference between professionalism and ethics?" and "Is there truly a distinction?" Sometimes it is said that professionalism is what one does when no one is watching. Ethics, on the other hand is what one does because there are rules to tell us what we must do. Interesting surveys have been taken: "Would you do X if you knew you wouldn't be caught?" or "Would you do X if you knew that is was wrong, but that you would not be punished?" The answers can be disturbing in their clarity about why we often do or refrain from doing certain things.

Another step in our definition is the recognition that professionalism rejects the myth that the client comes first when that aphorism is interpreted to mean "first and only." Professionalism redefines winning so that it does not mean win at all costs. It does not mean that if one person wins, another person must lose.

The terminology employed in much of the contemporary practice of law is terminology one sees in warfare. Reading some of the ads for CLE negotiation courses, I am always amused because the ads tell you how to destroy your opponent. There is also a mindset that if my client is successful, someone else's client has to lose. Lost in this process is the realization that there is or should be the capacity for both to be winners.

Professionalism also reminds us that fidelity and loyalty to clients are to be balanced with the lawyer's obligation to the procedures and institutions of the law and the administration of justice. And that term "justice" is also broadly defined; we lawyers certainly, but clients too, sometimes forget that justice does not just referto what happens in the courthouse. Justice is a matter of the transactional practice, the criminal practice, and the civil trial practice. But we seem to be losing sight of that relevance and of what "justice" means.

Evan McKenzie is a professor at the University of Illinois at Chicago. He wrote the book Privatopia,[2] which was a very important text in my primary field, community association law. McKenzie also wrote an article in the Journal of Community Association Law,[3] and some of the things he said in that article are very apt for our discussion of professionalism. Evan said that the law school focus on abstract rules and adversarial interests does not prepare lawyers to understand the role of law in a community or in personal relationships. This produces, Evan asserts, lawyers who are unprepared for the complexity of roles in the practice.[4]

I would modify that statement very slightly to say that it produces lawyers who are unprepared to appreciate the complexity of people in today's legal environment. McKenzie goes on to warn us of the lawyer who sees herself as an advocate whose only goal is victory, and who becomes, in his words, "the neighborhood equivalent of a divorce lawyer."[5] I do not mean to make ad hominem attacks on divorce lawyers, but you know what he is trying to say. His words reflect the reality of the way we as lawyers have evolved and have lost some of the aspects of professionalism. So let me ask again, "How do you see yourself, how do you want to be perceived, and what are you prepared to do about professionalism?"

ACREL Statement of Professionalism

The AmericanCollege of Real Estate Lawyers Statement of Professionalism[6] is a very valuable resource for thinking about the question,"What do we mean and what do we have to do if we are to be professionals?" Have you read that Statement? If not, please do so. It is a very fine piece of work.

First, the Statement of Professionalism says that to be a professional requires commitment. Commitment requires courage. I do not mean necessarily physical courage but moral courage, fortitude if you will. Without fortitude, integrity will fail, and when integrity fails, professionalism is gone.

Someone said that a professional is one who can do her best work when she does not feel like it. To some extent, this is saying that one has the courage, the commitment, to do what one knows is supposed to be done, or that one has the willingness to face and to deal with anything recognized as dangerous,[7] difficult, or painful instead of withdrawing from it.

The ACREL Statement of Professionalism addresses commitment in several areas. First, there must be a commitment to the client.[8] Next, there is a commitment to integrity and civility[9] and a commitment to the profession.[10] Fourth, there is a commitment to the community.[11] Finally, there is a commitment to the organization.[12]

Let us look at several of these, and let us first look at the client and think about what is required and what is appropriate.

Being committed to a client requires discernment and perspective; it requires that a lawyer have the ability to show good judgment and understanding. A professional needs to possess the ability to perceive the reality of a situation and to have the willingness to act upon that perception. In this context, perspective is the ability to see things in a true relationship, and that raises the question of what is the attorney's relationship to her client. What do you want that relationship to be, and what role do you see yourself fulfilling?

These questions bring us to the troublesome word "zealous."

Years ago I spoke at a CLE program for the Real Property Section of the North Carolina Bar. I was talking about seeking balance while negotiating disputes between developers of master planned communities and homeowners associations. A man older than I asked the question, "How can you stand there and say that we should seek ways to accommodate and balance solutions when you have a duty of zealous representation for your client?" I was somewhat stunned because what he basically asked was how one can do something other than wage war. He was playing the zealous card.

Do you know what "zealous" means? Do you know that the requirement for "zealous representation" has been removed from most codes? "Zeal" means eager interest;[13] "zeal" does not mean "destroy." "Zealous" does not mean "do anything and everything in order to win." "Zealous" means diligent;[14] it means "hard work, not hard ball."[15] It means putting the client's interest before self interest; it does not mean putting the client's interest above everything else.

One of the great jurists of the last 25-30 years, the late Judge Richard S. Arnold of the Eighth Circuit, made an interesting comment on this topic. He said, "Sometimes a client needs a friend instead of just an advocate to place a situation in perspective so that the true definition of 'zealous' should encompass some form of restraint."[16]

In answering the question of how you see your role as a lawyer, consider four roles seen as exemplifying the attorney-client relationship:

  • There is the godfather role, with the lawyer in control and victory as the goal.
  • There is the hired gun, perhaps the worst of them all, where the client is in control and sets the outcome. Here the lawyer allows the client to substitute his or her own set of values for the lawyer's. The lawyer just does whatever it takes to get the job done as the client defines the goal.
  • And then there is the guru. Here the lawyer is in control, and good rectitude is the result/the goal.
  • Finally there is "the friend," and that relationship is a collaborative one with a good result as the goal.[17]

It is very important to understand where you fit and what is important in your practice.

The Georgia Supreme Court has done a great deal in the area of professionalism. Georgia has had a justice on our Supreme Court, Justice Hardy Gregory, who has been a great leader in the field of professionalism. In discussing the lawyer's role, Justice Gregory said that that "there is a time to take a stand, and there is a time to find a way. A good lawyer knows the difference."[18] Good lawyering requires us to use our skills, all of our ability, to find ways out of the box, not just to take the easy way.

I am reminded of something that the late Dr. Martin Luther King, Jr. said, echoing the words of an old, old spiritual. Dr. King sought to find a "way out of no way."[19] That is what good lawyers do, that is what a true professional does: Find a way out of no way.

So what does a professional owe a client?

Certainly faithfulness and competence are on this list. Diligence is also on the list, but there is also a time to know when to stop.

The professional owes her client good judgment. Good judgment is basically common sense, and sometimes it is more important to have common sense than it is to have a great deal of what we used to call in the South "book learning." Balance is another quality that the professional owes the client. "Balance" is a very troublesome and in many ways out-of-vogue word. People do not worry about balance any more. People only worry about getting what they want. Yet the professional must possess and act upon the willingness to say, "That is not the thing to do."

Young lawyers will say, "That is all well and good, you are a senior partner. You can say to a client, 'Back off, back down,' but I cannot do that." Young lawyers, however, can and do wield tremendous influence on the profession. I remember when lawyers' salaries spiked, when the rocket took off and starting salaries really increased. What was driving that? Some of you were part of it.

There was a website called Greedyassociates.com, and the young associates drove that transformation in salaries. What would happen if we had a website named Professionallawyers.com? What would happen if there were a generation of attorneys who lead from below? There are many lawyers who are tired, who are burned out, who feel trapped because they started off as professionals and now they are just parts of great big businesses where professionalism is lost. So if the younger lawyers can change the economics of the practice of law -as they did- perhaps they can also change more and help restore the "profession" of law.

As the Statement of Professionalism points out, professionalism requires a commitment to integrity,[20] and that may be the most important commitment because integrity affects all other considerations. But what is "integrity?"

Having integrity involves a responsibility to say no and a responsibility to say why you are saying no. There is an interesting book written on integrity by Steven Carter, a law professor at Yale. The name of the book is Integrity.[21] Carter reminds us that one can be honest without integrity, but one cannot have integrity without honesty.[22] Carter explains that with integrity one discerns right from wrong and acts on that discernment without regard to the cost. One is a "whole person," the same yesterday, today, and tomorrow. Said differently but making the same point, in The Speed of Trust,[23] Stephen Covey says that a person with integrity has "the courage to do the right thing―even when it is hard."[24] As Carter points out, life becomes simpler for the person of integrity. Life may not be easy, but simple. Such a person figures out what is right and does it with all other considerations coming in second.