|Thomas G. Stolpman|
Each month, State Bar President Thomas Stolpman will respond in this column to questions from bar members. This month, Stolpman addresses the role of lawyers in today's society and the public's perception of the profession. To submit questions for the new president to answer, please send them to: Ask the President, California Bar Journal, 555 Franklin St., San Francisco 94102-4498; fax to 415/561-8247; or e-mail to email@example.com.
Most presidents use their columns to update members about their activities, explain unfolding policies, or to bring events outside of the organization into the perspective of the membership.
While this serves a valid purpose, I would like to break out of that mold and address some of the larger issues, such as who we are as lawyers, what it is that we do, and why we do it.
Almost as importantly, we must come to grips with the public perception of our profession, and why the image of lawyers has declined so far and so fast.
As one lawyer who has been given the privilege to lead the State Bar of California this year, I do not pretend to have all of the answers to these perplexing problems, but I can use this column to share my thoughts with you.
In my inaugural speech delivered last month, I called on our profession to embrace a standard of commitment, not compliance -- to recommit to a high ethical standard that defines ethical conduct as more than compliance with rules.
Preaching to the choir
In making my comments to the Conference of Delegates, distinguished leaders of the bar, and the most eminent members of our judiciary, I know that I was, to some extent, "preaching to the choir."
However, I was calling for a commitment not only from those in the audience but a commitment from our entire profession.
Each of us must understand that every time a lawyer breaches his or her commitment to an ethical standard, everyone suffers. When we stand by and watch a colleague violate a lawyer's duties as an officer of the court, or we allow unethical behavior to occur without doing something about it, we implicitly accept that conduct.
By doing so, we add to the perception that our profession does not have a commitment to a higher ethical standard. The public has obviously heard this message.
Traditionally, lawyers were trained to conduct themselves within their role as officers of the court.
Given the power attorneys have, it was implicitly and explicitly understood that they would exercise independent judgment in counseling clients and represent clients within the definition of "true" justice, as opposed to "substantive" justice.
Substantive justice is a term coined by legal commentators to describe the practice of putting clients' perceived interests before all others, ignoring the traditional view now called true justice, under which a lawyer's first obligation is to act within an ethical umbrella.
For example, attorneys who embrace the concept of true justice would counsel clients on the basis of what is right and wrong, not in a way calculated to give legal justification for conduct which otherwise might be criticized.
The wrong principles
Unfortunately, more and more members of our profession are embracing the principles of substantive justice and practicing law using this insidious philosophy as an ethical guidepost.
When a lawyer puts the interest of the client above all others, including the obligation to a high ethical standard, he or she can justify advising clients to destroy documents, to hide evidence, even to lie.
Because the client's interests come before the lawyer's ethical commitment, we soon find the lawyer and the law firm putting their interests ahead of their ethical obligations.
We see law firms marketing themselves not to provide good advice and sound judgment, but to guarantee results within price competition.
Price and profit, not quality, become the bottom line consideration instead of measuring performance by the excellence of legal services in the context of true professionalism.
Lawyers in this paradigm look to how well they and the client have met individual needs, not to the exercise of independent judgment in achieving a result consistent with justice and fairness.
Every member of the State Bar must think about how they embrace true justice, not substantive justice; as a person privileged to practice law, are you a person committed to a high ethical standard, or have you been willing to settle for mere compliance with the Rules of Professional Conduct?
As you think about these issues, I ask you to communicate with me and your other bar leaders so that we can move beyond addressing the symptoms, which has been our approach for the last ten years or so, and begin to treat the root causes of the decline in our profession.