September 04, 2011
Sensitive Litigation Moment #24: Is "Professionalism" a Convenient Dodge for Law Cattle?
Professionalism? What does it really mean?
So what about "professionalism". Is professionalism a vestige of an insular and ancient pageantry Western lawyers still engage in to feel special in an increasingly commoditized profession? Or does it have some utility?
Maybe the answer is both. But let's at least look at it freshly, and like people living in at least in the 18th century.
On closer inspection, real professionalism--generally thought of as a combination of day-to-day practical courtesies extended to fellow lawyers, and a noble tone in all that is said and done--may have little or nothing to with lawyers, and with benefiting lawyers. And have everything to do with clients, and benefiting clients instead.
Maybe the entire subject as traditionally regarded is either outdated, for lack of a better word, misplaced.
Shouldn't professionalism be 99% about clients? Some questions:
(1) What is Professionalism in the field of law, anyway?
(2) When does it help the doing of work?
(3) Was it ever intended to benefit anyone but the client? (Sometimes, professionalism certainly benefits lawyers in a way that can greatly benefit, even if indirectly, their clients.)
(4) Do we lawyers cry "professionalism" in a way that conflicts with our clients' interests--or simply as a pretext, or dodge, to excuse themselves from doing their jobs at a higher level?
(5) If so, what can we do about that?
For some of the answers to these questions, see reprinted from a 2005 "Law Week edition" of The San Diego Daily Transcript, the article "Professionalism Revisited: What About The Client?". It ends with "rules of professionalism"--but from the client's perspective. Excerpts from Rules 1, 5 and 6:
1. We come first. Be nice--but if in doubt, use the rules. If you feel you know the lawyers you are dealing with, we will follow your advice and instincts. If you are in doubt about the lawyers, or if it might compromise us to deviate from the formal procedural rules, please stay close to those rules.
5. If you have, or would like to have, a personal relationship with opposing counsel, that's fine, but don't let the relationship hurt us--the client. We don't care as much as you do about your maintaining or developing collegiality with other lawyers in your jurisdiction; in fact, we could not care less.
6. If opposing counsel shows animosity toward you for following the procedural rules and keeping things moving, that is tough. This is not about the lawyers. We hired you to represent us. We would like you to get this done. Again, as your client, we seldom think that aggression and persistence are "unprofessional".
Posted by Holden Oliver (Kitzbühel Desk) at September 4, 2011 12:59 AM
Great article on proper procedure during a deposition, including when to resort to violence and how to break arms of opposing counsel
Posted by: Moe Levine at July 27, 2011 06:01 AM
Sensitive litigation moment # 2025
When your client says "I don't think you are acting as my advocate." it is best not to respond, as my attorney did, 2 months before trial, before a judge who had already refused a continuation in the past, "After doing this for 20 years I have lost my zest for it."
Posted by: Carol Levy at July 31, 2011 12:33 AM