California Bar Journal
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Better, not killer, angels
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President Lincoln in his first inaugural address urged a nation restless to fight to abandon the war-mongering, bellicose threats and calls for separation so popular in 1861. Imploring the nation to unite around common ideals, public service, justice, truth and virtue, Lincoln appealed to what he phrased "the better angels of our nature." In these simple words, Lincoln captured a great truth about human nature and instructed us, by example, to frame our most important appeals to one another based on this truth.

From the beginning of the American republic, lawyers and the judicial system were to have a central role in maintaining democracy. The Founders' confidence in lawyers and judges to protect the public interest related not only to their special competencies, but their role was regarded as vital to a self-governing society.

Dr. Phillip C. StoneIn fact, the role of lawyers was recognized as so important to the republican form of government that even the regulation of lawyers was left generally to the lawyers themselves. Accordingly, until fairly recent times (1927 in California, 1938 in Virginia), the profession had few institutionalized systems for regulation. Today, though every state has some system for regulating lawyers, nearly all of these are controlled almost entirely by lawyers.

This privilege of self-governance is the quid pro quo for the public service expected from this learned profession. In every state, the bar has created enforceable standards of conduct for lawyers. Violations of these standards may result in a variety of sanctions, including license revocation.

Yet without something more at work, lawyers will not rise to the level of professionalism needed in today's society. To elevate professionalism and the profession, lawyers must volunteer to meet higher standards. And they must do so with such commitment that anyone aspiring to be a good attorney knows what those standards are, and what is required to meet them.

Herein is the heart of professionalism. Not that conduct complies with rules, but that conduct is ethical because lawyers are persons of integrity.

The American Bar Association said in its 1998 statement Promoting Professionalism, "The ethical integrity of the lawyer must be our profession's hallmark and call for public confidence. Ethics is not just a set of rules. It is a value system, a mind-set, a responsibility that must remain constant in the lawyer's consciousness."

Moreover, in addition to acting ethically, the lawyer must strive to be perceived as doing so. A reputation for integrity should be a cherished asset of every lawyer.

To this high calling, I add these standards of true professionalism: civility and, as able, peacemaking.

The legal profession, by its very nature, is confrontational, adversarial and combative. Though more evident in trial work, even business transactions involve assertion and protection of opposing interests.

To avoid exacerbating the conflict and tension inherent in the tasks of the profession, an attorney should be civil in manner, communication and conduct. Civility, when practiced well, can ease confrontation and create an environment in which more peaceable solutions will sometimes emerge. Though clients may pressure the lawyer to act otherwise, an attorney whose civility effects more temperate responses may actually lead to better outcomes for all parties.

One of the greatest law teachers in American history was Karl Llew-ellyn. "You must represent your client to the best of your ability," he noted, "and yet never lose sight of the fact that you are an officer of the court with a special responsibility for the integrity of the legal system."

The duty of advocacy is so influential that those of us who fall for the "good old days" of expecting lawyers to pursue truth and justice, to act as officers of the court, to have no duty to win a client's case by virtue of mistake, unethical conduct, publicity or other such considerations are in the minority. The prevailing view is that lawyers must do anything short of theft to advance the client's cause.

Note that I say short of theft. I think it is too generous even to say "anything short of theft or dishonest conduct." In some of the highly visible cases getting particular public attention, there appears to be a pattern of disingenuous, if not outright dishonest, conduct on the part of lawyers.

The duty of advocacy is now so well established that lawyers believe they are compelled by self-protection to do everything possible to advance the client's interest. After all, each client is a potential plaintiff. If a client expects a lawyer to use "all means necessary," a lawyer must question his commitment to higher standards on the grounds that he may be sued if he follows it.

Tom Meyer / The ChronicleEven courts, particularly in criminal cases, have fueled this fear by requiring lawyers to file appeals and make arguments that have only the slightest connection to due process concerns. A lawyer is put in the position of making silly, frivolous motions and arguments because court rulings have led lawyers to believe they can be criticized, even sued, if they fail to assert every conceivable argument.

Highly visible cases have brought a new dimension to the profession. Lawyers become "talking head" celebrities, needing to look after their own book deals, opportunities to appear on television and movie rights. No longer is ambulance chasing disdained as performed only by the lawyers at the margin of the profession: "high-class" ambulance chasing has become a way of life for many lawyers.

In many high-profile cases, the justice system is used for non-legal means. Filing a suit for political harassment, leaking pleadings to the press for embarrassment, trying to stop a merger for economic extortion and other uses of the legal system for patently non-legal objects has further prostituted the profession, giving us the appearance of being gun-slingers for hire, not independent professionals giving counsel and aid to clients.

When greedy lawyers lived at the margin of the profession and even of a society that did not respect them, one could take comfort in the fact that their conduct was not normative. At least "good lawyers" did not act that way.

Sadly, such conduct is increasingly becoming normative. Large firms, reputable firms and firms discounting their history of professionalism and ethics let the temptations of big clients and big cases entice them to new lows.

Nevertheless, despite my disappointment in the erosion of professionalism among lawyers, I am satisfied that the better angels will prevail. Society's disdain for outrageous conduct by lawyers will result in a reaction. Already, lawyers and bar groups are responding to this disdain by aggressively pursuing ways to improve the level of professionalism and, in turn, the public image of the profession. Lawyers themselves feel the disgust and disillusionment and are anxious for ways to turn things around.

Finally, there are the better angels themselves, persistent and abiding. They will prevail because of individuals who will choose to be guided by them.

Trial lawyer Phillip C. Stone became president of Bridgewater (Va.) College in 1994 and is immediate past president of the Virginia Bar Association. This column is adapted from a speech he gave recently at the University of Virginia Medical School. He earned his law degree from the U.Va. School of Law in 1970.