ethics & professionalism - texas land title associationethics and professionalism 33...

Ethics &

Professionalism: A Proposed Journey

2013 Texas Land Title Institute

Professor L. Wayne Scott St. Mary’s University School of Law

11/18/2013

1

Ethics and Professionalism:A Proposed Journey

By Prof. L. Wayne Scott

Roscoe Pound said that “... [professionalism] refers to a group ... pursuing a learned art as a common calling in the spirit of public service — no less a public service because it may incidentally be a means of livelihood. Pursuit of the learned art in the spirit of public service is the primary purpose.”

Ethics and Professionalism

2

11/18/2013

2

“Whereas legal ethics defines what every lawyer must do, legal professionalism takes on the more difficult task of defining the core values that the very best lawyers should aspire to in their practice.”

Comment: Brooks A. Suttle, Reframing “Professionalism”: An Integral View of Lawyering’s Lofty Ideals, 61 Emory L. J. 161 (2011).


3

Has professionalism disappeared from our profession? Have we become nothing but business/craft/trade persons? So argues Tom Morgan in The Vanishing American Lawyer(2010).


4

11/18/2013

3

Morgan argues that lawyers “are economic actors, specially trained, but driven by all the vices and virtues of a capitalist economic system.” And that “[U]se of the idea of a ‘profession’ to understand the world of lawyers obstructs clear thinking about what lawyers actually do and how they have to respond to the world they face.”


5

“... [W]e should not let the label ‘profession’ weaken the response to the realities that the future likely holds for legally trained persons.”

Is this true?


6

11/18/2013

4

Is there a floor, below which those in our profession may not go, or are we all economic actors. Would the public benefit from our discarding a self-regulated profession? This would allow the market and the government to control our actions. Or, does society benefit from an autonomous, self-regulating, profession? Do we live out the social contract that we claim exists, allowing us to call ourselves professionals?


7

One author “examines the options for restructuring legal ethics if the American legal profession changes in fundamental ways that make it difficult or impossible for negligence and fiduciary-duty malpractice principles and legal ethics codes to play the same important roles they currently perform.”

Prof. Vincent R. Johnson, MALPRACTICE IN A CHANGING PROFESSION: THE ROLE OF CONTRACT PRINCIPLES, 61 Clev. St. L. Rev. 489, 495 (2013).

Professionalism –Dead or Dying?

8

11/18/2013

5

“If legal services are increasingly provided to clients by nonlawyers, or by lawyers who are not fully licensed, it will be ever more difficult for the legal system to rely on disciplinary codes and malpractice actions to hold those who provide legal services accountable and to deter improper practices. And, if ethics rules or the legal principles governing negligence and fiduciary duty are rendered less operative than they are today, it may be necessary to find a substitute legal regime for protecting clients from harm and facilitating the proper operation of the justice system.” Id, at 526.

A Fragmented Profession?

9

This seems to be more of an academic argument, with few examples of the fragmentation discussed in the article.

Professor Johnson’s arguments are directed at the regulated ethics of the “legal profession,’ more than the “professionalism” of the “legal profession.”

The Focus of Professionalism

10

11/18/2013

6

Renewed Professionalism may save the Profession.

“We cannot save our system of laws or the legal profession from the commercialism of multi-disciplinary practice by regulation. We must save our profession and the system of laws by re-injecting and rebuilding moral values into the profession. . . .[I]n many cases those values have faded. Rebuilding can only be injected back into the heart, the spirit of the practice of law; that is re-inject a strong sense of service, values, and pride.”

Douglas S. Lang, Professionalism and Civility, 63 Tex.B.J. 552 (2000).

Rebuilding Professionalism

11

Reviewing the common concepts of what makes a professional demonstrates that professionalism aims higher than ethics. It focuses not only on exterior actions and conduct, but also interior values. Professionalism recognizes group expectations and minimums, but also emphasizes individual internal morality and individual external conduct.

12

Professionalism – Actions/Values

11/18/2013

7

Questions that Each Must Answer:

Are you ethical?

Are you professional?

Are you an ethical professional?


13

Definitions

Ethics is “the study of moral standards and how they affect conduct”; it is “a system of moral principles governing the appropriate conduct for a person or group” Merriam-Webster dictionary

Your ethics reflect your principles, morals, beliefs; your ethics reflect your moral code; they dictate your conduct.


14

11/18/2013

8

Definitions (cont.)

The Merriam-Webster dictionary defines professionalism as "the conduct, aims, or qualities that characterize or mark a profession or a professional person"; and it defines a profession as "a calling requiring specialized knowledge and often long and intensive academic preparation."


15

Definitions

A profession is "a vocation requiring knowledge of some department of learning or science."

A professional is one who follows "an occupation as a means of livelihood or gain," or one who is "engaged in one of the learned professions."

Professionalism is exhibited by one of the "professional character, spirit or methods" or the "standing, practice, or methods of a professional as distinguished from an amateur."

American College Dictionary


16

11/18/2013

9

One lay writer list ten characteristics of professionalism:

Appearance – Be neat

Demeanor – Polite confidence

Reliability – Get the job done

Competence – Be an expert in your field

Ethics – Never walk the ethical line

Lay View of Professionalism

17

Lay Characteristics of professionalism:

Maintain your poise –Be an adult Phone Etiquette – Identify , don’t dominate

Written Correspondence – Polite and brief

Organizational Skills – Neat and organized

Accountability –Accept responsibility

Chris Joseph: ttp://smallbusiness.chron.com/1characteristics-professionalism-708.html

Lay View (Cont.)

18

11/18/2013

10

MindTools lists these attributes:

Specialized Knowledge

Honest and Integrity

Accountability

Self-Regulation

Image – Look the Part

http://www.mindtools.com/pages/article/professionalism.htm, MindTools

Professionalism – Attributes

19

But

“Professionalism does not mean wearing a suit or carrying a briefcase; rather, it means conducting oneself with responsibility, integrity, accountability, and excellence. It means communicating effectively and appropriately and always finding a way to be productive. “

http://www.dol.gov/odep/topics/youth/softskills/Professionalism.pdf


20

11/18/2013

11

Analogizing to Robert Fulghum’s, All I Really Need to Know I Learned in Kindergarten, and at the risk of seeming to list the attributes of a Boy Scout, here is a simple list of items that can be the focus of re-igniting professionalism in each one of us:

Honesty, Integrity, Knowledge, Competence, Humility, Civility, Altruism, Accountability

Re-Igniting Professionalism

21

Honesty

“The quality of being fair and truthful : the quality of being honest [including].

a : fairness and straightforwardness of conduct.

b : adherence to the facts.”

Merriam-Webster Dictionary


22

11/18/2013

12

Honesty

President, Thomas Jefferson, once said, “Honesty is the first chapter in the book of wisdom.” First Inaugural Address, March 4, 1801 (Washington, D.C.).


23

Integrity

“ [T]he quality of being honest and fair : the state of being complete or whole - firm

adherence to a code of especially moral or artistic values : incorruptibility an unimpaired condition : soundness

: the quality or state of being complete or undivided . . . .”


24

11/18/2013

13

Integrity

"Integrity is a personal choice, an uncompromising and predictably consistent commitment to honourmoral, ethical. spiritual and artistic values and principles.“

Barbara Killinger,(2010). Integrity, Doing the Right Thing for the Right Reason. McGill-Queen's University Press. p. 12


25

Integrity

“[F]irm adherence to a code of especially moral or artistic values: incorruptibility”

Ones actions, beliefs, methods, measures and principles must derive from a single set of core value. Texas Lawyer's Creed-A Mandate for Professionalism, (adopted by the Supreme Court of Texas and the Court of Criminal Appeals, Nov. 7, 1989),

Professionals should be committed to being fair, truthful and straightforward in their interactions with patients and the profession.

26


11/18/2013

14

Knowledge

“[F]acts, information, and skills acquired by a person through experience or education; the theoretical or practical understanding of a subject: a thirst for knowledge…

what is known in a particular field or in total; facts and information. . . .” Oxford Dictionary.

Professionals are obligated to make a commitment to life-long learning.


27

Competence

(different from knowledge)

“[T]he ability to do something well . . . .” Merriam-Webster Dictionary.

There are levels of competence:

28


11/18/2013

15

Levels of Competence

Novice: Rule-based behavior, strongly limited and inflexible

Experienced Beginner: Incorporates aspects of the situation

Practitioner: Acting consciously from long-term goals and plans

Knowledgeable practitioner: Sees the situation as a whole and acts from personal conviction

Expert: Has an intuitive understanding of the situation and zooms in on the central aspects

Dreyfus, Stuart E.; Dreyfus, Hubert L. (February 1980). A Five-Stage Model of the Mental Activities Involved in Directed Skill Acquisition:


29

Humility

Humility is the understanding of your place in the context of the group to which you adhere, such as the legal profession.

30


11/18/2013

16

Civility

Texas Lawyer's Creed-A Mandate for Professionalism, (adopted by the Supreme Court of Texas and the Court of Criminal Appeals, Nov. 7, 1989),

“I am a lawyer. I am entrusted by the People of Texas to preserve and improve our legal system. I am licensed by the Supreme Court of Texas. I must therefore abide by the Texas Disciplinary Rules of Professional Conduct, but I know that professionalism requires more than merely avoiding the violation of laws and rules.”

31


Civility

“Civility is a broad term, but most legal professionals would describe it as professional courtesy.” Catherine M. Stone, Kimberly S. Keller, Shane J. Stolarczyk, Civility in the Legal Profession: A Survey of the Texas Judiciary, 36 Civility in the Legal Profession: A Survey of the Texas Judiciary (2004).

32


11/18/2013

17

Altruism

A professional is obligated to attend to the best interest of their clients (the community, and the public), rather than to their own self-interest.

A Professionals should accept a commitment to service within the profession and the community.


33

Accountability

Professionals are accountable to their clients, to society on issues of public health, and to their profession.

Individually, each one of us is the only entity that can control, change, direct and re-direct us.


34

11/18/2013

18

In order to particularize what professionalism is, it is useful to go though the Lawyers’ Creed, promulgated by the Texas Supreme Court and the Texas Court of Criminal Appeals in 1999.

While this document is aimed at lawyers, many of the precepts contained therein are applicable to any professional.

35

Professionalism – The Creed

The conduct of a lawyer should be characterized at all times by honesty, candor, and fairness. In fulfilling his or her primary duty to a client, a lawyer must be ever mindful of the profession's broader duty to the legal system


36

11/18/2013

19

I. Our Legal System

1. I am passionately proud of my profession. Therefore, "My word is my bond.“

2. I am responsible to assure that all persons have access to competent representation regardless of wealth or position in life.


37

3. I commit myself to an adequate and effective pro bono program.

4. I am obligated to educate my clients, the public, and other lawyers regarding the spirit and letter of this Creed.

5. I will always be conscious of my duty to the judicial system.


38

11/18/2013

20

II. Lawyer to Client

1. I will advise my client of the contents of this creed when undertaking representation.


39

2. I will endeavor to achieve my client's lawful objectives in legal transactions and in litigation as quickly and economically as possible.

3. I will be loyal and committed to my client's lawful objectives, but I will not permit that loyalty and commitment to interfere with my duty to provide objective and independent advice.


40

11/18/2013

21

4. I will advise my client that civility and courtesy are expected and are not a sign of weakness.

5. I will advise my client of proper and expected behavior.

6. I will treat adverse parties and witnesses with fairness and due consideration. A client has no right to demand that I abuse anyone or indulge in any offensive conduct.


41

7. I will advise my client that we will not pursue conduct which is intended primarily to harass or drain the financial resources of the opposing party.

8. I will advise my client that we will not pursue tactics which are intended primarily for delay.


42

11/18/2013

22

9. I will advise my client that we will not pursue any course of action which is without merit.

10. I will advise my client that I reserve the right to determine whether to grant accommodations to opposing counsel in all matters that do not adversely affect my client's lawful objectives. A client has no right to instruct me to refuse reasonable requests made by other counsel.


43

11. I will advise my client regarding the availability of mediation, arbitration, and other alternative methods of resolving and settling disputes.

III. Lawyer to Judge

1. I will be courteous, civil, and prompt in oral and written communications.

2. I will not quarrel over matters of form or style, but I will concentrate on matters of substance.


44

11/18/2013

23

3. I will identify for other counsel or parties all changes I have made in documents submitted for review.

4. I will attempt to prepare documents which correctly reflect the agreement of the parties. I will not include provisions which have not been agreed upon or omit provisions which are necessary to reflect the agreement of the parties.


45

5. I will notify opposing counsel, and, if appropriate, the Court or other persons, as soon as practicable, when hearings, depositions, meetings, conferences or closings are cancelled.

6. I will agree to reasonable requests for extensions of time and for waiver of procedural formalities, provided legitimate objectives of my client will not be adversely affected.


46

11/18/2013

24

7. I will not serve motions or pleadings in any manner that unfairly limits another party's opportunity to respond.

8. I will attempt to resolve by agreement my objections to matters contained in pleadings and discovery requests and responses.


47

9. I can disagree without being disagreeable. I recognize that effective representation does not require antagonistic or obnoxious behavior. I will neither encourage nor knowingly permit my client or anyone under my control to do anything which would be unethical or improper if done by me.


48

11/18/2013

25

10. I will not, without good cause, attribute bad motives or unethical conduct to opposing counsel nor bring the profession into disrepute by unfounded accusations or impropriety. I will avoid disparaging personal remarks or acrimony towards opposing counsel, parties and witnesses. I will not be influenced by any ill feeling between clients. I will abstain from any allusion to personal peculiarities or idiosyncrasies of opposing counsel.


49

11. I will not take advantage, by causing any default or dismissal to be rendered, when I know the identity of an opposing counsel, without first inquiring about the counsel's intention to proceed.


50

11/18/2013

26

12. I will promptly submit orders to the Court. I will deliver copies to opposing counsel before or contemporaneously with submission to the Court. I will promptly approve the form of orders which accurately reflect the substance of the rulings of the Court.


51

13. I will not attempt to gain an unfair advantage by sending the Court or its staff correspondence or copies of correspondence.

14. I will not arbitrarily schedule a deposition, court appearance, or hearing until a good faith effort has been made to schedule it by agreement.

15. I will readily stipulate to undisputed facts in order to avoid needless costs or inconvenience for any party.


52

11/18/2013

27

16. I will refrain from excessive and abusive discovery.

17. I will comply with all reasonable discovery requests. I will not resist discovery requests which are not objectionable. I will not make objections nor give instructions to a witness for the purpose of delaying or obstructing the discovery process. I will encourage witnesses to respond to all deposition questions which are reasonably understandable. I will neither encourage nor permit my witness to quibble about words where their meaning is reasonably clear.


53

18. I will not seek Court intervention to obtain discovery which is clearly improper and not discoverable.

19. I will not seek sanctions or disqualifications unless it is necessary for protection of my client's lawful objectives or is fully justified by the circumstances.


54

11/18/2013

28

IV. Lawyer and Judge

1. I will always recognize that the position of judge is the symbol of both the judicial system and administration of justice. I will refrain from conduct that degrades this symbol.


55

2. I will conduct myself in Court in a professional manner and demonstrate my respect for the Court and the law.

3. I will not engage in any conduct which offends the dignity and decorum of proceedings.

4. I will treat counsel, opposing parties, the Court, and members of the Court staff with courtesy and civility.


56

11/18/2013

29

5. I will be punctual.

6. I will not knowingly misrepresent, mischaracterize, misquote or miscite facts or authorities to gain an advantage.

7. I will respect the rulings of the Court.

8. I will give the issues in controversy deliberate, impartial and studied analysis and consideration.


57

9. I will be considerate of the time constraints and pressures imposed upon the Court, Court staff and counsel in efforts to administer justice and resolve disputes.


58

11/18/2013

30

“ . . .’[T]he professionalism campaign is destined to fail so long as it focuses on “‘vague . . . invocations of shared values that really aren't shared.’ [We must acknowledge that professionalism is not a destination, but rather, a journey during which we all must critically evaluate the effects of our conduct - not just on our clients and on our income - but also on our profession, on our society, and on our relationships with one another.”

Dane S. Ciolino, Redefining Professionalism as Seeking, 49 Loy. L. Rev. 229 (2003)

59

Professionalism as a Journey

Conclusion

Whether you are a lawyer or a business person, or both, the ethics guiding your conduct are the minimum standards required of you in your dealings with others. They provide the outer limits beyond which you cannot go.

Mainly, leave anywhere you go better than you found it – that includes your profession.

Professionalism – Conclusion

60

ethics & professionalism - texas land title associationethics and professionalism 33...

Documents