Professionalism in Today's Competitive Legal Market
| Publication year | 2010 |
| Pages | 65 |
| Citation | Vol. 39 No. 6 Pg. 65 |
2010, June, Pg. 65. Professionalism in Today's Competitive Legal Market
June 2010
Vol. 39, No. 6 [Page 65]
Articles in this Department are sponsored by the Professionalism Coordinating Council of the Colorado and Denver Bar Associations, and are scheduled to publish quarterly. The Coordinating Editor is Peter B. Goldstein, Gubbels Law Office, P.C., Castle Rock-(303) 688-1655, peter@gubbelslaw.com. Readers may contact Goldstein with topic ideas or to submit a manuscript for consideration.
About the Author
Richard L. Gabriel is a judge on the Colorado Court of Appeals and serves on the CBA/DBA Professionalism Coordinating Council-richard.gabriel@judicial.state.co.us. Prior to his appointment to the Bench, he was a longtime partner with Holme Roberts and Owen LLP, Denver, where his trial practice focused on general civil, commercial, and intellectual property litigation. He thanks Hon. Russ Carparelli, Hon. Alan Loeb, Mike Canges, and his law clerks Audrey Bianco and Jessica D'Ardenne for sharing their helpful insights and suggestions.
The practice of law has changed dramatically from the days of a small and collegial Bar in which lawyers generally heeded Tranio's advice to Hortensio to "do as adversaries do in law. Strive mightily, but eat and drink as friends."(fn1) Today, prospective clients often make clear that they want a "bulldog" to represent them. This begets lawyers who market themselves to that paradigm because, in many cases, they need to get the business to meet billable-hour or client-generation requirements. Once these lawyers have landed the client, they need to play the part for which they were hired. So, they file every motion they can, frequently asking that sanctions be imposed on their adversaries along the way; they oppose even the most reasonable request for an extension of time or some other accommodation; they obstruct discovery; and they do everything else in their power to make opposing counsel's life miserable.
These lawyers often perceive that this style of practice benefits all concerned. On the one hand, the clients have the bulldog they wanted. On the other hand, the lawyers get to generate substantial billable hours while distinguishing themselves as "tough" lawyers. In the meantime, professionalism, as well as the legal profession as a whole, suffer.
In this article, I offer some thoughts based on my experience as a practicing trial lawyer and as a judge as to how we got to this place where professionalism is so often lacking. I then argue that this lack of professionalism is in no one's best interests. Finally, I offer some suggestions as to what we might do as a profession to begin to reverse the disturbing decline in professionalism.
How We Got Here
Professionalism, in the broad sense in which I use it here, has been defined as "an aspirational standard of conduct that exceeds the mandates of the Disciplinary Rules of Professional Conduct."(fn2) It is marked by a commitment to maintaining a judicial system that is fair, effective, and efficient by, among other things, treating all with whom a lawyer comes in contact with civility, professional integrity, honesty, candor, fairness, trust, respect, and personal dignity.(fn3) In my view, the following factors have contributed to the decline in professionalism among lawyers.
The World Has Changed
The world around us has changed dramatically. We have become more polarized as a society, and civility in our public discourse has suffered. This is evidenced by the plethora of political pundits in the media who have made vitriol their stock in trade, as well as by the sharp tone of debate on virtually any significant issue in Congress.
The Media's Portrayal of Lawyers
The media's portrayal of lawyers undoubtedly has influenced society's impression of how lawyers are supposed to act. The quiet dignity of Atticus Finch has been replaced by the image of innumerable movie and television lawyers pounding the table and screaming at the star witness to get him or her to crack on the stand, which the witness inevitably does.(fn4) These are the lawyers whom clients think they want, because they believe, perhaps based on the results they see in the movies, that these kinds of tactics work in the real world. Consequently, these kinds of tactics proliferate.
A Less Personal Bar
The number of lawyers in Colorado (and throughout the country) has risen dramatically over the years. When I first arrived in Denver from a large New York firm, the Bar seemed relatively small and personal. Lawyers knew one another, and they knew that they were likely to see their current adversaries in other cases down the road. This tended to deter lawyers from behaving badly, if for no other reason than they knew that what goes around comes around. Lawyers also cared deeply whether they had earned the respect of their colleagues, as well as the judges before whom they appeared, which came when they developed a reputation for honesty, integrity, and professionalism. There was a communal sense of pride in being a member of the legal profession, and unprofessional behavior was not tolerated.
Today, lawyers on opposite sides of a case frequently do not know one another when the case begins. Moreover, in many cases, the lawyer across the table is no longer viewed as a colleague in a proud and noble profession. Rather, he or she often is seen simply as an adversary who is to be beaten by any lawful means possible.(fn5)
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