The "Rambo" Problem: Is Mandatory CLE the Way Back to Atticus?

• Author: James A. George
• Position: Member of the Baton Rouge firm of George & George, Ltd

James A. George is a member of the Baton Rouge firm of George & George, Ltd.

This article is a reproduction of a presentation given at the Admiralty and Maritime Law Conference, The University of Texas Law School, September 2001.

He has served as National President of the American Board of Trial Advocates, Chair of the Admiralty Law Section of the Association of Trial Lawyers of America, and as a member of the Board of Trustees, American Inns of Court Foundation where he served for one term as National Vice-President.

The author was the recipient of the A. Sherman Christensen Award on October 9, 1996 in a ceremony conducted in the Well of the United States Supreme Court. The Award is given each year to the member of the American Inn of Court Foundation who at the local, regional, or national level has provided distinguished, exceptional, and significant leadership to the American Inn of Court movement.

He is listed in the Best Lawyers in America and The Bar Register of Preeminent Lawyers, and has recently completed a second term as Chair of the Professionalism and Quality of Life Committee of the Louisiana State Bar Association. As a result of that service and in recognition of his efforts in helping to launch the first series of Law School Professionalism Programs in 2000, he received The President's Award of the Louisiana State Bar Association in June 2001.

The Law in the 50s, it was a calling; in the 70s, it was a profession; in the 80s, it became a business; and if we don't watch out by 2000, it will be a racket. ¹

I Introduction

Something has gone terribly, tragically wrong in American society today.

That is as precise a description as I can muster about the signs we see everyday that things are going generally awry in a society in which:

* A young boy steps into a restroom and murders two of his classmates in cold blood and then injures a number of others-because he was bullied.

* The class then spends a week talking about all the problems this poor young boy suffered at the hands of "the bullies" but the names of the murdered boys are never mentioned.

* Two girls get into an argument and one of them pulls out a pistol and shoots the other.

* There are so many different kinds of "rage" in this country today we now have different names for them. It's not just anger anymore, it's "road rage," "runway rage," "hotel lobby rage," etc.

* Reports of high school and grammar school shootings, and knifings are becoming almost commonplace.

* The question of the coarsening of American society in general was the subject of numerous columns, articles, and essays in major publications in the period immediately preceding the submission of this paper, with titles such as "The Matter of Manners," "Athletes and Role Models," and "Prole Models."

* The most popular "singer" (and that term is used advisedly) in today's culture picked up a handful of Grammys for songs that promoted killing, of, for instance, his mother and gays, and was embraced by one of the leaders of the gay community who commented that he was "only joking" in his lyrics.

* Two weeks later, a fifteen year old threatened to kill students at his local high school, but then told his fellow students and one adult that he was "only joking." Shortly thereafter, the scene described in the first paragraph occurred and it turned out he was not "only joking."

And, we are deluding ourselves if we do not admit something is wrong with our profession, perhaps because we reflect the society we serve.

So, because some years ago leaders of the Bench and Bar could see the process of deterioration was rapidly accelerating, they started to push for more emphasis on Professionalism. This resulted in many states requiring some form of annual instruction in that area, in addition to the usual Ethics requirement.

In a recent book about the quality of life of lawyers-or the lack of same-the author spoke of "dependable verities,"² which existed in the legal profession before the mid-sixties:

Not long ago, the concept of professionalism was well understood. It represented a consensus about what it meant to be a lawyer, and it functioned as a kind of cultural glue. In A Nation Under Lawyers, Harvard law professor Mary Ann Glendon points out that the concept, as promoted by bar leaders, remained quite stable and clearly understood until the mid-1960s.

That understanding included certain "dependable verities," Glendon notes: that associates who did good work would become partners; that those who did not would be let down easily; that partnership was a reasonably secure status; that independence from clients' "could and should be asserted when the occasion required; and that economic considerations would be subordinated, if need arose, to firm solidarity" or to ideals of proper conduct. "Today's lawyers," Glendon goes on to say, "are wandering amidst the ruins of those understandings."

To the lawyers left wandering this landscape of shattered assumptions, all the talk about professionalism seems like so much hot air, for none of the fretting, none of the warnings, none of the hearkening back to the good old days, has helped much.³

A prominent Federal District Judge in Miami, Judge William Hoeveler, was quoted in the same work with his observation on how the current cultural changes have caused us, as a profession, to "lose touch":

I think one of the basic problems of our profession and all professions is a loss of individual spirituality. This may offend some people, but when I read about the history of this country and the way our Constitution was formed. . . . I think about the reasons why lawyers do what they do. And for a lot of them, it is because they have no compass that is directing them. They have no internal direction. And that's becoming more and more pervasive. . . . And this is something we never talk about. We would like to relegate this to the parlors of homes and so forth. But it is a problem that we've got to address and think about. We have lost touch. And I don't care what kind of spiritual values you have-whatever you are is unimportant-but the fact that we are living in an increasingly technological and material world which has no time or room for these thoughts is, I think, one of the deepest problems that we as lawyers face.⁴

The author describes mandatory professionalism Continuing Legal Education as the legal profession's "current obsession with professionalism."⁵ It is termed a "prominent symptom" of the dichotomy which now characterizes the profession-"there is no place for the life of the spirit, only for the life of the mind."⁶

I have no answers to these far reaching issues, as my service of several years in the thick of "the professionalism movement," as it has come to be known by some (and not always in a complimentary way), teaches that there are few clear and satisfying solutions-only more questions.

This paper will attempt to explore a number of those questions and will discuss, in the process of this examination, the history of the deterioration of civility at the Bar which gave impetus to the growth of the Professionalism movement, specifically, the distinction between the concept of Professionalism and those surrounding Legal Ethics. In addition, the arguments, pro and con, whether the Organized Bar should be involved in promoting "good manners" in the first place, and the role of the Courts in this process will be analyzed. Finally, some examples of specific programs which have been put in place to enhance standards of Professionalism, civility, and excellence in various states will be explored.

II "Professionalism"-Is It Just Ethics Under A New Rubric?

To say that any attempt to give a clear and concise definition of "Professionalism" would be a daunting task would be to utter the understatement of the year, and no such attempt will be made here. However, it is helpful to peruse the numerous Codes of Professionalism which have been promulgated across the country and to note a number of parallel thoughts running through those codes as to the nature of the concept we are dealing with, however vague and illusory it might be. The Order of the Supreme Court of Texas and the Court of Criminal Appeals contains the following observations about the proud history and tradition of the legal profession:

We must always be mindful that the practice of law is a profession. As members of a learned art we pursue a common calling in the spirit of public service. We have a proud tradition. Throughout the history of our nation, the members of our citizenry have looked to the ranks of our profession for leadership and guidance. Let us now as a profession each rededicate ourselves to practice law so we can restore public confidence in our profession, faithfully serve our clients, and fulfill our responsibility to the legal system.⁷

The ideas expressed in that Order are similar to one of the more recognized definitions of a "profession" by Dean Roscoe Pound of Harvard...