Role of the Commission
Distinction Between Ethics and Professionalism
The Meaning of Professionalism
Issues and Topics
Examples of Formats for Courses
What This Training Should Not Be
Relation to Commission on Continuing Lawyer Competency (CCLC) and Institute of Continuing Legal Education (ICLE)
In 1989, the Supreme Court of Georgia took two significant steps to confront the concerns and further the aspirations of the profession. First, it created the Chief Justice's Commission on Professionalism (the "Commission") and gave it a primary charge of ensuring that the practice of law in this state remains a high calling, enlisted in the service not only of the client, but of the public good as well. This challenging mandate was supplemented by the Court's second step, that of amending the mandatory continuing legal education (CLE) rule to require all active Georgia lawyers to complete one hour of Professionalism CLE each year [Rule 8-104 (B)(3) of the Rules and Regulations for the Organization and Government of the State Bar of Georgia and Regulation (4) thereunder]. The Court designated the Institute of Continuing Legal Education in Georgia (ICLE) as the sole sponsor of professionalism training and made the rule effective January 1, 1990. On May 31, 1991, the Supreme Court changed the rule to allow sponsors in addition to ICLE to conduct professionalism events so long as the sponsor is approved by the Commission according to its policies and procedures and complies with the Professionalism CLE Guidelines.
The Commission recognizes the need to provide guidance to ICLE and any other proposed Professionalism CLE provider as to the Court's expectations regarding this training. In adopting these guidelines, the Commission intends that ICLE, other CLE sponsors, and individual trainers or speakers be clear as to the goals of this requirement and what the desired outcomes from this training are.
The general goal of the Professionalism CLE requirement is to create a forum in which lawyers, judges and legal educators can explore the meaning and aspirations of professionalism in contemporary legal practice and reflect upon the fundamental premises of lawyer professionalism -- competence, civility, integrity, and commitment to the rule of law, to justice, and to the public good. Building a community among the lawyers of this state is a specific goal of this requirement.
More than a one-time reminder of the problems of contemporary law practice, Professionalism CLE seeks to turn professionalism into a constant awareness for every Georgia lawyer. If successful, Professionalism CLE courses will inculcate a habit of talking with colleagues and engaging in dialogue that is essential to a healthy professional life. They also will encourage the habit of reflection (or the "stop and think" rule of morality). They will acquaint lawyers with the harsher realities of the profession, but also will equip them with a variety of strategies for coping with these realities. They will also deepen one's awareness of a lawyer's particular professional situation and can provide a sense of empowerment or control over a professional career rather than a passive acceptance of an untenable situation. They should expand the horizons of participants with respect to the richness and variety of the profession and the range of interests compatible with practice in the profession. And lastly, they can stimulate the imagination about the potential of a professional life.
The Commission should be viewed as a resource for information and materials on Professionalism by any sponsor, group, or person planning a CLE session on professionalism. The Commission encourages sponsors to tailor their Professionalism sessions to the issues relevant to the group to whom the sessions are presented. Once a format for the Professionalism session has been determined by the sponsor, the Commission may be contacted and asked to search its files to ascertain whether relevant materials are available for the session being planned. While the Commission itself cannot plan, implement, and conduct all of the nearly 1000 annual CLE Professionalism sessions which are offered by various sponsors, the Commission is willing to assist, to the extent it receives sufficient advance notice, in the planning of a CLE session on Professionalism.
At least three separate topics are tied up in what is generally referred to as legal ethics: the disciplinary rules and "the law of lawyering," the concept of professionalism and role differentiation, and the question of how to do justice. A fourth topic, legal malpractice avoidance, is also of concern since the same fact situation will oftentimes give rise to both ethics and malpractice considerations. All of these topics, of course, are interrelated. As the Preamble to the Georgia Rules of Professional Conduct cautions:
In the nature of law practice conflicting responsibilities are encountered. Virtually all difficult ethical problems arise from conflict among a lawyer's responsibilities to clients, to the legal system, and to the lawyer's own interest in remaining an upright person. The Rules of Professional conduct prescribe terms for resolving such conflicts. Within the framework of these Rules, many difficult issues of professional discretion can arise. Such issues must be resolved through the exercise of sensitive professional and moral judgment guided by the basic principles underlying the Rules.1
The Supreme Court has distinguished between ethics and professionalism, to the extent of creating separate one-hour CLE requirements for each. The best explanation of the distinction between ethics and professionalism that is offered by former Chief Justice Harold Clarke of the Georgia Supreme Court:
". . . the idea that ethics is a minimum standard which is required of all lawyers while professionalism is a higher standard expected of all lawyers."
Laws and the Rules of Professional Conduct establish minimal standards of consensus impropriety; they do not define the criteria for ethical behavior. In the traditional sense, persons are not "ethical" simply because they act lawfully or even within the bounds of an official code of ethics. People can be dishonest, unprincipled, untrustworthy, unfair, and uncaring without breaking the law or the code. Truly ethical people measure their conduct not by rules but by basic moral principles such as honesty, integrity and fairness.
The term "Ethics" is commonly understood in the CLE context to mean "the law of lawyering" and the rules by which lawyers must abide in order to remain in good standing before the bar. Legal Ethics CLE also includes malpractice avoidance. "Professionalism" harkens back to the traditional meaning of ethics discussed above. The Commission believes that lawyers should remember in counseling clients and determining their own behavior that the letter of the law is only a minimal threshold describing what is legally possible, while professionalism is meant to address the aspirations of the profession and how we as lawyers should behave. Ethics discussions tend to focus on misconduct -- the negative dimensions of lawyering. Professionalism discussions have an affirmative dimension -- a focus on conduct that preserves and strengthens the dignity, honor, and integrity of the legal system.
As former Chief Justice Benham of the Georgia Supreme Court says, "We should expect more of lawyers than mere compliance with legal and ethical requirements."
The three ancient learned professions were the law, medicine, and ministry. The word profession comes from the Latin professus, meaning to have affirmed publicly. As one legal scholar has explained, "The term evolved to describe occupations that required new entrants to take an oath professing their dedication to the ideals and practices associated with a learned calling."2 Many attempts have been made to define a profession in general and lawyer professionalism in particular. The most commonly cited is the definition developed by the late Dean Roscoe Pound of Harvard Law School:
The term 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 a public service is the primary purpose.3
Teaching and Learning Professionalism, the 1996 Report of the Professionalism Committee of the American Bar Association Section of Legal Education and Admissions to the Bar, expands the Pound definition and particularizes it for lawyers:
A professional lawyer is an expert in law pursuing a learned art in service to clients and in the spirit of public service; and engaging in these pursuits as part of a common calling to promote justice and public good.4
Retired Chief Justice Harold Clarke defined a professional as "a member of a group which provides an essential service in which the public has a vital interest and which requires of the performer extensive training and the exercise of qualitative judgment."5
Retired Chief Justice Norman Fletcher often explained his sense of professionalism as follows:
I have concluded that professionalism, in a legal sense, is to a great extent practicing the golden rule. It is not -- do my opponent in before my opponent does me in, -- but rather, it is do unto your fellow attorneys, the judges and society as you would have them do unto you.
Retired Justice Sandra Day O'Connor of the United States Supreme Court gave us this definition:
To me, the essence of professionalism is a commitment to develop one's skills to the fullest and to apply that responsibly to the problems at hand. Professionalism requires adherence to the highest ethical standards of conduct and a willingness to subordinate narrow self-interest in pursuit of the more fundamental goal of public service. Because of the tremendous power they wield in our system, lawyers must never forget that their duty to serve their clients fairly and skillfully takes priority over the personal accumulation of wealth. At the same time, lawyers must temper bold advocacy for their clients with a sense of responsibility to the larger legal system which strives, however imperfectly, to provide justice for all.6
The Commission believes that the ability to define professionalism in words is not as important as the pursuit of professionalism in our work. Thinking about professionalism and discussing the values it encompasses can provide guidance in the day-to-day practice of law. Professionalism is a wide umbrella of values encompassing competence, civility, legal ethics, integrity, commitment to the rule of law, to justice and to the public good. Professionalism calls us to be mindful of the lawyer's roles as officer of the court, advocate, counselor, negotiator, and problem solver. Professionalism asks us to commit to improvement of the law, the legal system, and access to that system. These are the values that make us a profession enlisted in the service not only of the client but of the public good as well. While none of us achieves perfection in serving these values, it is the consistent aspiration toward them that defines a professional. The Commission encourages thought not only about the lawyer-client relationship central to the practice of law but also about how the legal profession can shape us as people and a society.
In March of 1990, the Chief Justice's Commission adopted a Creed for Georgia Lawyers and an Aspirational Statement for the Profession. (Refer to Table of Contents.) These two documents should serve as the beginning points for professionalism discussions, not because they are to be imposed upon Georgia lawyers or bar associations, but because they serve as words of encouragement, assistance and guidance. These comprehensive statements should be utilized to frame discussions and remind lawyers about the basic tenets of our profession.
The kinds of issues implicit in the Lawyer's Creed and Aspirational Statement and which can be the subject of Professionalism CLE include:
Specific topics which can be the subjects of Professionalism CLE include:
Practice Management CLE includes, but is not limited to, those activities which (1) teach lawyers how to organize and manage their law practices so as to promote the efficient, economical and competent delivery of legal services; and (2) teach lawyers how to create and maintain good client relations consistent with existing ethical and professional guidelines so as to eliminate malpractice claims and bar grievances while improving service to the client and the public image of the profession.
A major goal of Professionalism CLE is to encourage introspection and dialogue about these issues. It is very difficult, if not impossible, to accomplish this in large, undifferentiated groups. The Commission encourages the designers of these events to provide for smaller, more intensive groups. These programs can involve the lawyer/student in the process of lawyering. By definition, they present the sorts of problems lawyers typically face, and they search for solutions or ways of thinking about these problems. In courses such as these, the interest of the lawyer/student usually rises in direct proportion to his or her personal engagement in the session.
Therefore, the Commission strongly encourages the designers of the sessions to explore more creative, introspective, interactive and simulation-based methods for presenting professionalism issues in the CLE course. Experiential training should be emphasized. Lawyers tend to learn best by example, so models of behavior and professional values should be identified and discussed. Above all, courses should be structured to confront the question, "How will you handle this situation when it occurs in your practice?" and the more confrontational the better. Practicing lawyers invariably respond better to realism in teaching, and professionalism issues can be made just as real as any other CLE-taught topic.
The Commission recognizes that it is possible and legitimate to define other training topics as encouraging professionalism. Training in a substantive area of the law enhances competency and, therefore, assists lawyers in meeting their professional responsibilities to their clients. Nevertheless, the Commission feels that, given the very limited and minimal requirement of one professionalism CLE hour per year and the aspirational goals envisioned by the Supreme Court, substantive training in particular practice areas are eligible only for general CLE credit and not for professionalism CLE credit. For example, learning how to write a legally enforceable contract would not be an appropriate topic for Professionalism CLE. Learning how to explain to your client what a legally enforceable contract is would be appropriate for Professionalism CLE.
A number of different designs for professionalism courses have been developed which have been well-received by the participants while meeting the goals set out by the Supreme Court.
The following formats have proven effective in eliciting active participation and fostering reflection in CLE professionalism courses:
1. The hypothetical format:
A panel is asked to respond to hypothetical situations which raise questions or concerns ranging from pure ethical issues to professionalism concerns. The panel is facilitated in its discussion by a lawyer whose job it is to push the discussion and point out inconsistencies or disagreements. The ethical issues can be addressed in terms of the Code of Professional Responsibility and the Standards of Conduct, but the professionalism concerns tend not to be subject to right/wrong answers. This format tends to work best with discrete groups (i.e., lawyers who work in the same practice area) where the hypotheticals can be drawn from the day-to-day practice of those particular lawyers.
[Hypotheticals developed by the Commission are available to planners of CLE events.]
2. Use of role play through videotapes:
A valuable training technique, especially when interaction with the audience is a goal, is to use role-plays to dramatize a particular issue or concern. There are now available several videotapes which were developed specifically to demonstrate through role plays various ethical and professionalism dilemmas. Videos produced by the American Bar Association, the University of Pennsylvania Center on Professionalism, and the Commission are particularly well-suited for these courses, and have been used successfully in both large and small group sessions. The use of role plays can be an effective technique for generating active and spirited audience participation in a discussion. Descriptions of the videotapes produced by the Commission are attached. A list containing more detailed descriptions of the videotape programs produced by the Commission and others is available from the Commission.
3. Use of non-role play videotapes:
The Commission and other organizations have developed videotapes on various professionalism topics, such as civility, clients, discovery, gender, service (For example, the Commission's Perspectives on Lawyer Professionalism, a 9-videotape series of interviews with Georgia lawyers and judges). Detailed descriptions of the programs produced by the Commission and others is available from the Commission. (Refer to Table of Contents.)
4. Town hall meeting:
Particularly conducive to discussions of professionalism for local bar associations, in-house CLE, office or firm retreats is the town hall meeting format. After introductory remarks about the need to explore professionalism in contemporary practice, the major portion of the meeting is devoted to discussions in small breakout groups of professionalism concerns in the particular practice setting. These discussions can be stimulated by oral questions or a written questionnaire. Responses to the questions provide data for the sponsoring organization to use as it deems appropriate. For example, some firms have responded to town meeting data highlighting the need for more feedback and guidance for associates by instituting mentoring programs.
5. ADR training:
Training in the processes of dispute resolution in addition to litigation, such as arbitration, mediation, and early neutral evaluation, qualify for professionalism CLE credit.
There are a variety of other designs and programs which are appropriate for in-house CLE programs, firm retreats, for specialized groups and for large groups. The goal of any design, however, should be to generate thought-provoking and introspective discussion among the participants about the meaning of professionalism in contemporary legal practice.
The Lawyer's Creed and Aspirational Statement on Professionalism have been adopted by the Chief Justice's Commission as encouragement, guidance and assistance to individual lawyers, law firms, and local and circuit bar associations. They are specifically not intended:
The Commission's hope is that members of this profession will recognize the special obligations that attach to their calling and will also recognize their responsibility to serve others and not be limited to the pursuit of self interest. The Creed and Aspirational Statement cannot be imposed by edict, because moral integrity and unselfish dedication to the welfare of others cannot be legislated. Nevertheless, a public statement of principles of ethical and professional responsibility can provide guidance for newcomers and a reminder for experienced members of the bar about the basic ethical and professional tenets of our profession.
A. All rules, accreditation standards, and regulations of Commission on Continuing Lawyer Competency (CCLC) shall be observed.
B. The criteria for co-sponsorship should be observed by any group wishing to co-sponsor a session with ICLE. These criteria are available from ICLE (1-800-422-0893; 770-466-0886; 706-369-5664).
C. Written materials should be designed to stimulate discussions about the nature of the profession, the lawyer-client relationship, and the relationship between business and professional values. CCLC accreditation standards provide as follows:
Thorough, high quality, and carefully prepared written materials should be distributed to all attendees at or before the time the course is presented. It is recognized that written materials are not suitable or readily available for some types of subjects; the absence of written materials for distribution should, however, be the exception and not the rule.
D. Each attendee should be given an evaluation form to be completed and returned to the sponsor which not only evaluates the particular course and trainers, but offers ideas or suggestions to the Commission on how best to address professionalism concerns.
Professionalism is about both principles and character. All lawyers would prefer that their practices be character-building rather than debasing. They want to be able to achieve a good life in the practice of law.
Professional behavior, however, is not simply a matter of character and principle; it is a matter of choice and decision-making. Thus, the issue is not all or nothing. It is not a question of being or not being ethical. It usually is not a question of right or wrong. It is a question of doing or not doing the ethical or professional thing. In our high pressure world, it may not be possible to act professionally all the time. It is, however, possible and important to act more professionally more often.
First-year law students of Karl N. Llewellyn, jurisprudential scholar who taught at Yale, Columbia, and the University of Chicago Law Schools, often cautioned his students:
The lawyer is a man of many conflicts. More than anyone else in our society, he must contend with competing claims on his time and loyalty. You must represent your client to the best of your ability, 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. You will often find, brethren and sistern, that those professional duties do not sit easily with one another. You will discover, too, that they get in the way of your other obligations -- to your conscience, your God, your family, your partners, your country, and all the other perfectly good claims on your energies and hearts. You will be pulled and tugged in a dozen directions at once. You must learn to handle those conflicts.7
Professionalism discussions are too often framed as simple issues of rule-following or rule-violation. But the real issue facing lawyers as professionals is developing the capacity for critical and reflective judgment and the ability to "handle those conflicts," described by Karl Llewellyn. The CLE sessions should strive to cultivate reflective judgment about the practice of law and to assess how well current practices are serving the legal profession and the system of justice in light of the best traditions of our practice.