Defining Professionalism: I Know It When I See It?
N early two decades ago, the American Bar Association concluded that “lawyers’ professionalism may well be in steep decline.”1 Subsequent surveys by The Florida Bar demonstrated a historic collapse of public trust in the legal profession. In response, leaders of the American Bar Association, the Florida Supreme Court, and The Florida Bar took action. Today, the Florida Supreme Court’s Commission on Professionalism, The Florida Bar’s Center for Professionalism, and The Florida Bar’s Standing Committee on Professionalism are charged with the responsibility of “encouraging adherence” by Florida lawyers to aspirational standards of professionalism.2 These three entities were established by orders of the Florida Supreme Court and the Rules Regulating The Florida Bar.3 Yet, despite this institutional commitment, the professionalism concept is undefined.
Lon Fuller wrote that to be moral, law must be promulgated.4 Similarly, Sir Thomas Aquinas wrote that even though generally understood notions of morality may dictate appropriate conduct, promulgation is necessary for law to obtain its force.5 But ask the average Florida Bar member to apply these concepts to the professionalism movement, and you are likely to be answered with a moment of thoughtful silence. Their silence is understandable, because in its present form, the concept of professionalism follows the thinking of neither Fuller nor Aquinas. Instead, professionalism is defined by the lack of a definition, following Justice Potter Stewart’s “I know it when I see it” approach to defining pornography.6
The Rules Regulating The Florida Bar, however, bestow authority upon the Center for Professionalism to implement this undefined concept. Specifically, Rule 19-1.1 states:
This rule is adopted in recognition of the importance of professionalism as the ultimate hallmark of the practice of law. The purpose of this rule is to create a center to identify and enunciate non-mandatory standards of professional conduct and encourage adherence thereto. These standards should involve aspirations higher than those required by the Rules of Professional Conduct.
This rule tells us only that professionalism is important, associated with conduct, and aspirational. Other rules governing the authority, funding, and operation of the Center for Professionalism are similarly unhelpful in defining the term.7 Fla. Bar Rules 19-1.2 to 19-1.5.
Apparently aware of the lack of a formal definition, the Center for Professionalism refers interested persons to materials defining professionalism on The Florida Bar Web site. For example, the Web site quotes Harold G. Clark, chief justice of the Supreme Court of Georgia, who said “professionalism differs from ethics in the sense that ethics is a minimum standard. . . while professionalism is a higher standard expected of all lawyers.”8 Georgia’s Code of Professional Responsibility is also quoted: “No code or set of rules can be framed which will particularize all duties of the lawyer. . . [T]he enumeration of particular duties should not be construed as a denial of the existence of others equally imperative, though not specifically mentioned.”9 These definitions are defined by their lack of definition. So, the question remains: What is professionalism?
Mandating Procedural Professionalism
Some scholars suggest that the lack of definition for the concept of professionalism is reasonable because the concept is too broad.10 Similarly, the Florida Supreme Court has wrestled with the meaning and application of the word,11 labeling it as “vague” in some contexts,12 and the American Bar Association and The Florida Bar began grappling with the professionalism concept 15 years ago.13 Today, given our leading role in what is now called the professionalism movement, Florida’s lack of a definition can be excused no longer—especially because the aspirational goal of professionalism is looking more and more like a mandate.
Recently, the Bar’s rules were amended to require new members to complete basic skills course requirements, as well as the “Practicing With Professionalism” program. Fla. Bar Rule 6-12.3(a)(1). In addition, all members are required to obtain five credits in ethics, professionalism, substance abuse, or mental illness awareness training as part of their CLE requirements. Fla. Bar Rule 6-10.3(b). These rules achieve what can be called procedural professionalism—lawyers are not actually mandated to be professional; rather, they must report that they have attended some form of professionalism training.14 If The Florida Bar’s goal is to achieve substantive professionalism, rules requiring procedural professionalism are insufficient.
Supporters of these CLE rules rightly note that even procedural rules can be meaningful. After all, The Florida Bar is empowered to enforce the rules, and can assume that the CLE programs will teach people something about professionalism. The argument disguises the essential point: If the professionalism concept is important enough to justify enforceable rules and mandatory training for all members of The Florida Bar, then the concept is also important enough to warrant a concrete definition, as even the Fourth DCA has suggested:
Much is written about “professionalism” today. It is on the agenda at every lawyer and judicial symposium or continuing education conference, and our professional journals are filled with pleas for greater attention to punctilious conduct in all things. But today’s case requires that we pass from exhortation to the resolution of a concrete issue. For the disciplinary rule of candor is the instrument of professionalism’s demand.
Forum v. Boca Burger, Inc., 788 So. 2d 1055 (Fla. 4th DCA 2001) (awarding fees from defendant and defense counsel for trial and appellate court efforts to uphold a “patently erroneous decision”) (emphasis in original).
Seeking Substantive Definition
The Florida Bar might begin an effort to substantively define professionalism by reviewing different sources within its own literature that partially address the topic: 1) the Rules of Professional Conduct; 2) the Ideals and Goals of Professionalism; 3) the Guidelines for Professional Conduct; 4) the CLE Guidelines; 5) the Oath of Admission; and 6) the Creed of Professionalism, available through the professionalism links on the Bar’s Web page at floridabar.org.
• The Rules of Professional Conduct
Although the term “professional” is present in the title, the Rules of Professional Conduct (Ch. 4, Rules Regulating The Florida Bar) do not define professionalism. Instead, the rules pertaining to the lawyer as advocate cover nine topics: meritorious claims, expediting litigation, candor toward the tribunal, fairness to opposing parties, impartiality and decorum of the tribunal, trial publicity, the lawyer as witness, the special responsibilities of a prosecutor, and the role of the advocate in nonadjudicative proceedings. (Rules 4-3.1 to 4-3.9) Yet, these rules are generally considered our ethical guidelines. Thus, their very title—the Rules of Professional Conduct—is inconsistent with the definition of professionalism as something more than ethics. Indeed, to the extent that these ethical rules contain professionalism concepts, they blur the professed distinction between the two.
• The Ideals and Goals of Professionalism
On May 16, 1990, The Florida Bar Board of Governors adopted the Ideals and Goals of Professionalism, aspirational guidelines intended to “articulate our ideals of professionalism and to emulate such ideals by deed.” For purposes of defining professionalism, this document’s greatest contribution is the opening statement, which says that lawyer professionalism includes:
(1) a commitment to serve others;
(2) being dedicated to the proper use of one’s knowledge to promote a fair and just result;
(3) endeavoring always to enhance one’s knowledge and skills;
(4) ensuring that concern for the desired result does not subvert fairness, honesty, respect and courtesy for others with whom one comes into contact, be they fellow professionals, clients, opponents, public officials, including members of the judiciary, or the public;
(5) contributing one’s skill, knowledge and influence as a lawyer to further the profession’s commitment to serving others and to promoting the public good, including efforts to provide all persons, regardless of their means or the popularity of their causes, with access to the law and the judicial system;
(6) educating the public about the capabilities and limits of the profession, specifically what it can achieve and the appropriate methods of obtaining those results; and
(7) accepting responsibility for one’s own professional conduct as well as others in the profession, including inculcating a desire to uphold professional standards and fostering peer regulation to ensure each member is competent and public-spirited.
• The Guidelines for Professional Conduct
Approved for publication in 1995, the Guidelines for Professional Conduct provide a list of 99 specific “professionalism” concepts. This document addresses topics such as scheduling, continuances, extension, service, court submissions, communications with adversaries, depositions, interrogatories, motions, witnesses, ex parte communications, settlement, and pretrial and trial conduct. While the guidelines obviously were intended to help define the concept of professionalism, in the end they miss the mark. Many of the guidelines are so specific and detailed that they could easily be inserted into our ethical Rules of Professional Conduct, once again demonstrating the blurred distinction between ethics and professionalism. Simply put, the excess of information in the guidelines undermines their purpose.
• CLE Requirements on Professionalism
Given the existing Bar rules, the need for a professionalism definition becomes most acute when organizations develop
continuing legal education programs to satisfy professionalism CLE requirements. Recognizing this reality, the Center for Professionalism created standards for professionalism content in CLE programs. Fla. Bar Rule 19-1.2(e). According to the Center for Professionalism, the kinds of issues that should be discussed at CLE events are:
• the independence of the lawyer in the context of the lawyer-client relationship;
• the conflict between duty to client and duty to the system of justice;
• the conflict in the duty to the client versus the duty to the other lawyer;
• the responsibility of the lawyer to employ effective client communications and client relations skills in order to increase service to the client and foster understanding of expectations of the representation, including accessibility of the lawyer and agreement as to fees;
• the lawyer’s responsibilities as an officer of the court;
• misuse and abuse of discovery and litigation;
• the lawyer’s responsibility to perceive and protect the image of the profession;
• the responsibility of the lawyer to the public generally and to public service; and
• the duty of the lawyer to be informed about all forms of dispute resolution and to counsel clients accordingly.15
These CLE guidelines are unquestionably helpful to individuals responsible for organizing CLE events. They provide examples of applied professionalism and demonstrate core concepts of professionalism. But, again, they still fall short of defining the term.
• The Oath of Admission
Upon being admitted to The Florida Bar, every member took an oath of admission, and swore to abide by certain principles of professionalism. The Oath of Admission states as follows:
I do solemnly swear: I will support the Constitution of the United States and the Constitution of the State of Florida; I will maintain the respect due to courts of justice and judicial officers; I will not counsel or maintain any suit or proceedings which shall appear to me to be unjust, nor any defense except such as I believe to be honestly debatable under the law of the land; I will employ for the purpose of maintaining the causes confided to me such means only as are consistent with truth and honor, and will never seek to mislead the judge or jury by any artifice or false statement of fact or law; I will maintain the confidence and preserve inviolate the secrets of my clients, and will accept no compensation in connection with their business except from them or with their knowledge and approval; I will abstain from all offensive personality and advance no fact prejudicial to the honor or reputation of a party or witness, unless required by the justice of the cause with which I am charged; I will never reject, from any consideration personal to myself, the cause of the defenseless or oppressed, or delay anyone’s cause for lucre or malice. So help me God.
See Rules of the Supreme Court Relating to Admissions to the Bar, Rule 5-13 (Order March 20, 2003).16
The seven clauses of this oath reflect concepts such as upholding and adhering to the law, being truthful, serving clients, and being honorable. These principles are also found in the Rules of Professional Conduct, the Ideals and Goals of Professionalism, and the Guidelines for Professional Conduct. Notably, while professionalism concepts are implicated, the word “professionalism” is not in the oath.
• The Creed of Professionalism
Finally, and perhaps most significantly, The Florida Bar’s professionalism handbook contains a Creed of Professionalism, which states:
I revere the law, the judicial system, and the legal profession and will at all times in my professional and private lives uphold the dignity and esteem of each. I will further my profession’s devotion to public service and to the public good. I will strictly adhere to the spirit as well as the letter of my profession’s code of ethics, to the extent that the law permits and will at all times be guided by a fundamental sense of honor, integrity, and fair play. I will not knowingly misstate, distort, or improperly exaggerate any fact or opinion and will not improperly permit my silence or inaction to mislead anyone. I will conduct myself to assure the just, speedy and inexpensive determination of every action and resolution of every controversy. I will abstain from all rude, disruptive, disrespectful, and abusive behavior and will at all times act with dignity, decency, and courtesy. I will respect the time and commitments of others. I will be diligent and punctual in communicating with others and in fulfilling commitments. I will exercise independent judgment and will not be governed by a client’s ill will or deceit. My word is my bond.
See Center for Professionalism, Creed of Professionalism.17
Like the Oath of Admission, the Creed of Professionalism echoes concepts already within the Rules of Professional Conduct, the Ideals and Goals of Professionalism, and the Guidelines for Professional Conduct. Clearly, the creed is intended to reflect core concepts of professionalism, and each of its 10 sentences announces ideals of professionalism. But two problems remain. First, this creed is barely known among the members of the Bar. Second, even if it were well-known, its length makes it difficult to consider it a shared value adhered to by all Bar members.
Encouraging Adherence to a Shared Concept
As noted at the outset of this article, the stated purpose of the Center for Professionalism is to “encourageadherence” to professionalism standards. Fla. Bar Rule 19-1.1. In some instances, professionalism is just an aspiration. In other cases—the procedural rules governing CLE, and the substantive rules governing ethics—it is a mandatory and enforceable obligation of Florida attorneys. But, despite the best efforts of the Rules of Professional Conduct, the Guidelines of Professionalism, the Center for Professionalism’s CLE standards, the Oath of Admission, and the Creed of Professionalism, nowhere is the term professionalism truly defined.18
Nevertheless, the documents discussed in this article obviously embody core principles of professionalism. With this starting point, The Florida Bar can take another step toward defining professionalism. For example, one formal approach would be to adopt portions of one or all of these documents as part of The Florida Bar rules, perhaps even within the Rules of Professional Responsibility.19 An informal approach might be to increase attorney awareness of these documents by increasing their visibility within The Florida Bar. A compromise approach would be to adopt a formal definition, using short, simple terms (such as character, competency, and commitment) and then to increase the awareness of that definition through The Florida Bar’s seminars and literature.
Although approving a commonly accepted definition of professionalism could become a topic of great debate in The Florida Bar, it can be done. Hippocrates defined professionalism for doctors through the oath he authored over 2000 years ago. Today, that message is often distilled into a clearly understood mandate: heal your patients, do no harm.20 It might not be coincidental that, despite the emergence of health maintenance organizations, recent Gallup polls continue to show that people trust their nurses, dentists, doctors, and pharmacists, while lawyers are among the least trusted professionals.21 Perhaps the average citizen simply does not understand a lawyers’ role. Or perhaps we lawyers do not even understand ourselves.
This article does not intend to oppose the ideals of the professionalism movement.22 Polls that rank lawyers with used car salesmen23 clearly prove the need for The Florida Bar to take a long look in the mirror, to embrace the search for Atticus Finch,24 and to take affirmative steps toward restoring our profession’s image.
In many ways, this introspective effort is well underway through the professionalism movement. Florida Bar applicants must review of the Rules of Professional Conduct and pass the Multistate Professional Responsibility Exam.25 Florida’s courts have flatly declared professionalism important and beneficial to counsel, clients, and the courts.26 Disciplinary proceedings against Bar members routinely assign professionalism training as a sanction.27 In sum, The Florida Bar, as discussed at the beginning of this article, is institutionally committed to professionalism—and rightly so.
Nevertheless, jurisprudential thinkers might question our present failure to define professionalism. Constitutional scholars, invoking principles of due process, might even suggest that the term is void for vagueness. Moreover, if The Florida Bar continues to pursue new professionalism initiatives without defining the term, then those new initiatives remain subject to those same jurisprudential and constitutional critiques.
While we may know professionalism when we see it, we should shudder at the realization that pornography and professionalism share a common definition. Is professionalism truly something that is subject to a local standard?
In the opinion of this author, the core essence of professionalism can be expressed as follows: character, competence, commitment, and courtesy in client advocacy and community service. But ultimately, The Florida Bar should develop its own clear and concise statement of professionalism. After all, for The Florida Bar to encourage adherence to the principles of professionalism, its members must possess a shared understanding of the principles to which we all must adhere.
1 See American Bar Association Commission on Professionalism, In the Spirit of Public Service: A Blueprint for the Rekindling of Lawyer Professionalism 7 (1986).
2 In re Amendments to Rules Regulating The Florida Bar, 718 So. 2d 1179 (Fla. 1998).
3 The Supreme Court’s Commission on Professionalism and The Florida Bar Center for Professionalism were created by an Administrative Order of the Chief Justice (July 1996). The commission is charged with the planning and implementation of policies governing professionalism, and those efforts are assisted by the center. Rule 19-1.5. Funding and staffing for the center’s efforts is provided by The Florida Bar through the general fund. Rule 19-1.3. In addition, a Standing Committee on Professionalism was created by The Florida Bar Board of Governors, pursuant to Bylaw 2-8.3, to assist in the implementation of the professionalism polices and programs developed by the commission and the center. A report evaluating this structure endorsed it as “sound and efficient” and deemed a “model for professionalism programs nationwide.” Report and Recommentations from the Special Committee to Study the Professionalism Delivery System, presented to Justice Cantero and the Supreme Court Commission on Professionalism (April 22, 2003), at p. 6.
4 Lon Fuller, The Morality of Law 49 (1964).
5 Aquinas, Summa Theologica, Prima Secundae, Question 90, Article 4.
6 Jacobellis v. State of Ohio, 378 U.S. 184, 197 (1964).
7 For example, the Center for Professionalism’s responsibilities and authority shall be to “monitor,” to “provide guidance,” to “help implement,” to “make recommendations” and to “assist” in imposing standards of professionalism. Fla. Bar Rule 19-1.2.
8 Quoted in Interview with John W. Spears, Editor, Decatur-Dekalb Bar Quarterly, May 24, 1990, as quoted at floridabar.org. See also Evanoff v. Evanoff, 418 S.E.2d 62, 63 (Ga. 1992) (“[E]thics is that which is required, and professionalism is that which is expected.”).
9 Georgia Code of Professional Responsibility, Preamble Handbook 24-H, quoted at floridabar.org.
10 James A. George, The Rambo Problem: Is Mandatory CLE the Way Back to Atticus? 62 La. L. Rev. 467 (2002).
11 In 5-H Corp. v. Padovano, 708 So. 2d 244, 247 (Fla. 1997), the Florida Supreme Court encouraged reporting of questionable attorney behavior to The Florida Bar “to maintain and promote attorney professionalism, high standards of conduct, decorum in Florida courtrooms and pleadings, and the general integrity of the legal profession.” The opinion’s use of multiple phrases accompanying the reference to professionalism demonstrates the court’s difficulty in applying the term.
12 In the context of criminal cases, the Supreme Court recognized the vagueness of the term “professionalism.” For example, in Hernandez v. State, 575 So. 2d 640 (Fla. 1991), the Florida Supreme Court struck down a lower court’s departure from drug-related criminal sentencing guidelines after finding that the crimes were committed in a professional manner, holding “we are not convinced that the term ‘professionalism’ can be narrowly defined in any way that would make it an acceptable reason for departure. . . . The word ‘professionalism’ thus is too vague to constitute a valid reason for departure.” Id. at 642.
13 See, e.g., Professionalism: A Recommitment of the Bench, the Bar, and the Law Schools of Florida (1989); see also ABA Comm’n on Professionalism, supra note 1.
14 The procedural professionalism approach is very similar to The Florida Bar’s approach to pro bono activities: lawyers are not mandated to actually perform pro bono work; instead, they are mandated to report on the work they did or did not do. Fla. Bar Rule 4-6.1(a) and (d); see also George, supra note 10.
15 See Obtaining Professionalism CLE Credits, The Professional at 7 (Fall 2002); see also, links to “Professionalism” and “CLE Guidelines” at floridabar.org.
16 See also floridabar.org. Note: search “Oath.”
17 See floridabar.org. Note: Use links to professionalism handbook, or search “Creed.”
18 Of course, countless other sources for a definition of professionalism exist. For example, Canadian legal sources provide valuable insights. The Legal Ethics and Professional Conduct Handbook, published by the Nova Scotia Barrister’s Society, begins, in Rule 1, with the “Underlying Principle” of “Integrity.” The document also sets forth, in Rule 18, the Duties to the Profession Generally, stating, “A lawyer has a duty to uphold the integrity of the profession and to promote the reputation of the profession for fairness, justice and honesty.” The rule further provides a guiding principle that “[p]ublic confidence in the profession requires that lawyers respect and zealously guard those values and principles and modes of conduct and behaviour that promote the ideals set forth in this Handbook. Conduct by a lawyer which does not promote the ideals of fairness, justice and honesty will adversely affect the image and morale of the profession and the public perception of the legal system.” See Nova Scotia Barrister’s Society, The Legal Ethics and Professional Conduct Handbook, available at www.nsbs.ns.ca/handbook/contents.html.
19 For example, a common theme in all of the Florida materials related to professionalism is the lawyer’s responsibilities towards clients, opponents, the court, the community, and the profession. Accordingly, a reasonable amendment to Rule 19-1.1 could read:
This rule is adopted in recognition of the importance of professionalism as Professionalism is the ultimate hallmark of the practice of law. The purpose of this rule is to create a center to encourage adherence to the principles of professionalism. To practice law with professionalism means to represent clients and serve the community in a dignified, courteous and competent manner; to demonstrate character as an honest, reasonable, and respectful advocate; and to be committed to upholding the honor and integrity of the law and our system of justice. identify and enunciate non-mandatory standards of professional conduct and encourage adherence thereto. These standards should Professionalism involves aspirations higher than those required by the Rules of Professional Conduct.
20 A classical—and admittedly lengthy—version of the Hippocratic oath is as follows: “I swear by Apollo Physician and Asclepius and Hygieia and Panaceia and all the gods and goddesses, making them my witnesses, that I will fulfill according to my ability and judgment this oath and this covenant: To hold him who has taught me this art as equal to my parents and to live my life in partnership with him, and if he is in need of money to give him a share of mine, and to regard his offspring as equal to my brothers in male lineage and to teach them this art—if they desire to learn it—without fee and covenant; to give a share of precepts and oral instruction and all the other learning to my sons and to the sons of him who has instructed me and to pupils who have signed the covenant and have taken an oath according to the medical law, but no one else. I will apply dietetic measures for the benefit of the sick according to my ability and judgment; I will keep them from harm and injustice. I will neither give a deadly drug to anybody who asked for it, nor will I make a suggestion to this effect. Similarly I will not give to a woman an abortive remedy. In purity and holiness I will guard my life and my art. I will not use the knife, not even on sufferers from stone, but will withdraw in favor of such men as are engaged in this work. Whatever houses I may visit, I will come for the benefit of the sick, remaining free of all intentional injustice, of all mischief and in particular of sexual relations with both female and male persons, be they free or slaves. What I may see or hear in the course of the treatment or even outside of the treatment in regard to the life of men, which on no account one must spread abroad, I will keep to myself, holding such things shameful to be spoken about. If I fulfil this oath and do not violate it, may it be granted to me to enjoy life and art, being honored with fame among all men for all time to come; if I transgress it and swear falsely, may the opposite of all this be my lot.” See, e.g., Ludwig Edelstein, The Hippocratic Oath: Text, Translation, and Interpretation (Johns Hopkins Press, 1943), excerpted by NOVA Online, “Hippocratic oath – classical version,” available at www.pbs.org/wgbh/nova/doctors/oath_classical.html.
21 According to a December 2003 Gallup poll, nurses ranked number one in an annual survey on the honesty and ethics of various professions, followed by other medical professionals including doctors, veterinarians, pharmacists, and dentists. Lawyers rated among the least trusted professions. See http://washingtontimes.com/upi-breaking/20031201-100859-3777r.htm [visited by author December 29, 2003]; but see George D. Lundberg, Severed Trust: Why American Medicine Hasn’t Been Fixed (2000).
22 For dissenting views on the professionalism movement, see Paul C. Zacharis, Reconciling Professionalism and Client Interests, 36 Wm. & Mary L. Rev. 1303 (1995); Rob Atkinson, A Dissenter’s Commentary on the Professionalism Crusade, 74 Tex. L. Rev. 259 (1995); Amy R. Mashburn, Professionalism as a Class Ideology: Civility Codes and Bar Hierarchy, 28 Val. U. L. Rev. 657 (1994).
23 See supra note 21.
24 Mike Papantonio, In Search of Atticus Finch (1995).
25 See Fla. Bar Admiss. R. 3-14.1(f) and 4-33.3
26 McLean v. State, 854 So. 2d 796, 799 (Fla. 2d D.C.A. 2003) (benefits of professionalism to court and counsel); Fuston v. State, 838 So. 2d 1205, 1206 (Fla. 2d D.C.A. 2003) (benefits of professionalism to court); Florida State Bd. of Admin. v. Alliance Capital Management, L.P., 2003 WL 22719563 (Fla. Cir. Ct. Jan 21, 2003) (benefits of professionalism to streamlining discovery and conserving judicial resources).
27 See, e.g., The Florida Bar v. Bryant, 813 So. 2d 38, 43 (Fla. 2002); The Florida Bar v. Sayler, 721 So. 2d 1152 (Fla. 1998); The Florida Bar v. Rubin, 709 So. 2d 1361 (Fla. 1998).
Keith W. Rizzardi is a trial attorney for the U.S. Department of Justice. He is a past chair of the Government Lawyer Section and is a member of The Florida Bar’s Standing Committee on Professionalism.