A collision of legal needs and professionalism
By Diane Karpman
Professionalism is an elusive word with many definitions. It encompasses just
about the entire universe of lawyer conduct. It contains a variety of ideas
ranging from advertising to “Rambo,” scorched-earth litigation tactics.
On the macro level, “professionalism” in our advertising regulations
mirror global issues stressing out our country. Advertising prohibitions are
relaxed during periods of expansion. For example, Abraham Lincoln advertised
using classified ads and handbills. Hornsby, Clashes of Class and Cash
(2005) 37 Ariz. St. Law J. 255. Then suddenly in 1908, the organized bar banned
lawyer advertising, characterizing it as unprofessional. It was prohibited,
until the landmark Bates v. State Bar of Arizona (1977) 433 U.S. 350,
which facially announced that lawyer advertising was permissible, because it
is constitutionally protected commercial speech.
The significant subtext of Bates is that lawyer advertising is essential
to meet consumer needs and legal access in society. The case was strongly driven
by the demands of consumer groups and leveraged by a DOJ antitrust suit filed
against the ABA one year before the groundbreaking decision.
The alternating bans and relaxation on advertising reflect two different tectonic
plates that periodically collide. There is the dignified, established old order,
versus real people who need lawyers to obtain their legal rights. For example,
undocumented workers need counsel to obtain verifiable status. The tensions
that accompanied the expansion of our frontiers in the 1800s are occurring again.
We can build a fence around the country to keep out the flow of immigrants.
Or, we can embrace the free trade concepts expressed in the principles of NAFTA/GATTS.
The prohibitions on lawyer ads disproportionately impact “the underclass
[and deny them] access to lawyers and our system of justice to redress their
grievances against those of privilege.” (Hornsby at 297.) The patchwork
quilt of state lawyer advertising regulations look silly in the borderless virtual
world of the Internet.
We also can view professionalism in the microcosm. Uncivilized behavior flourishes
in anonymity, which can shelter deplorable conduct. Due to the public image
of attorneys, some people divide the world into two distinct segments, lawyers
and humans. (Lawyers are likely to label the latter as “clients.”)
However, being a lawyer does not mean you give up your humanity.
If you have a dying parent or a sick child, you should be able to anti-cipate
that opposing counsel will understand and realize that some day, he or she may
need to hold someone’s hand in the hospital. To eradicate uncivilized
behavior, we need to enlist the participation of the bench, the bar and each
other. Peer pressure is one of the most effective means to block uncivil conduct.
That is why the State Bar has created a special task force on civility and professionalism
to deal with these issues.
Tasteless yellow page ads may cause a lawyer to be mocked, but incivility of
lawyers to each other denigrates us as human beings and cannot be tolerated.
• Legal ethics expert Diane Karpman can be reached at 310-887-3900 or at firstname.lastname@example.org