Wednesday, July 24, 2013

The New Professionalism - Where are we Headed?

We hear the word "professionalism" so often in the legal field. Most of the time it is in the negative context, as in some behavior lacks professionalism. Occasionally, we are fortunate to hear about someone displaying professionalism. Unfortunately, we all get busy in practice and procedure and the great examples of daily professionalism seem to get lost in the day-to-day and too often go unrecognized.

What is "professionalism?" It is a little troubling that we would need a definition. Like Justice Potter Stewart once noted on another topic, perhaps we "know it when we see it?" The Florida Bar has nonetheless taken a swing at defining it:

"Professionalism is the pursuit and practice of the highest ideals and tenets of the legal profession. It embraces far more than simply complying with the minimal standards of professional conduct. The essential ingredients of professionalism are character, competence, civility, and commitment."

Perhaps "civility" is broad enough, but I think any definition of professionalism should include the word "courtesy." Courtesy cannot be overrated in this profession. Sadly, simple acts of courtesy have had to be imposed upon attorneys. A prime example is 60Q5.115(2). This requires attorneys to talk with one another before filing motions:

"All motions shall include a statement that the movant has personally conferred or has used good-faith efforts to confer with all other parties or, if represented, their attorneys of record and shall state whether any party has an objection to the motion."

This is merely common courtesy, and it is troubling that we have reached the point of codifying courtesy in practice. I note this example, there are others, because we are now entering a new phase of codifying courtesy and professionalism. It will be interesting to see how far your Florida Bar and the Florida Supreme Court are willing to go to promote and require professionalism. Professionalism is not a new topic with The Florida Bar. A search of the Florida Bar News archive reveals a plethora of articles on the topic.

In 2012, the Supreme Court’s Commission on Professionalism "recommended that 'repeated and substantial' violations of professionalism standards should be subject to review and possible sanctions." That recommendation evolved over the last year to the issuance of The Court's June 6, 2013 decision IN RE: CODE FOR RESOLVING PROFESSIONALISM COMPLAINTS. The Court concludes that the "passive academic approach" to professionalism has been successful over the past 30 years, but "that we continue to experience significant problems that are unacceptable"

Justice Lewis authored the opinion. In a later interview with the Florida Bar News, he noted that for professionalism, "We’re in a whole new ballgame,” following the work of the Commission and the issuance of The Court's opinion. The definition of professionalism will come, pursuant to this decision, from "The Bar’s Oath of Admission, the Creed of Professionalism, Ideals and Goals of Professionalism, The Rules Regulating The Florida Bar, and relevant Supreme Court decisions."

The procedure will include formation of local Circuit professionalism panels. Complaints about professionalism will be referred to these local panels. Justice Lewis envisions these local panels would "be more informal, would be flexible, would provide a source or outlet for complaints that are short of grievance type of things because much of the conduct may have a difficult time fitting into one of our existing rules.” He explained that such panels might lead to referral to the existing grievance process.

The idea is appealing. I see so much behavior that is not appropriate. It is not egregious most of the time, just inappropriate and unfortunate. It is not necessarily disciplinary-level behavior. It is behavior that makes me scratch my head and ask "why." Often it exhibited by lawyers for whom I have a great deal of respect, and by whose current behavior in a certain situation I am astounded. I am hopeful that a conversation with a local panel will remind and reinforce these excellent attorneys. I hope that panel interaction will be sufficient to steer great attorneys back to the true course when circumstances and situations and frustrations may have caused natural human failings in a certain circumstance. We all make mistakes (I make them daily, it is part of life).

I am also hopeful that The Court stands by its pronunciations. I am hopeful that they, and their Circuit Grievance Committees, take a hard line on repeat professionalism offenders. I hope that they include courtesy in their definitions, and take a dim view of attorneys that are consistently and even mockingly discourteous. I tire of reading depositions that include name calling and insults. I tire of reading telephonic depositions that include hanging-up on a party. I tire of ad homonym attacks and references in trials. We can make our point(s) without this. Such behavior diminishes us all. We can face disagreement without being disagreeable.

Sure, it is not easy sometimes. We are after all human and we get our feelings hurt, face frustration, and have normal human reactions. But if it was easy, anyone could do it. Not just anyone can, that is why they call us professionals. Let's act like it, to the public and to each other. I am committing today to renewing my efforts at professionalism. I invite you to lead by example. I invite you to join me in making professionalism a primary goal. I invite you to compliment professionalism when you see it in others. I invite you to become involved in the Circuit Committees. I invite you to make our Bar, our practice and our state a better place to practice. That is my $.02, what is yours?

E-mail me at david.langham@doah.state.fl.us.

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