CHAPTER 18 ETHICAL CONSIDERATIONS FOR THE TITLE EXAMINER
| Jurisdiction | United States |
(Apr 2015)
ETHICAL CONSIDERATIONS FOR THE TITLE EXAMINER
Counsel
Noble Energy, Inc.
Denver, Colorado
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J. ERIK NORRIS is Counsel with Noble Energy, Inc., in Denver, Colorado, where he supports the DJ Basin asset team on all upstream, midstream, and gas marketing matters. Mr. Norris previously worked for Anadarko Petroleum Corporation in The Woodlands, Texas where he supported the Southern and Appalachia region on all upstream matters. Prior to joining Anadarko, Mr. Norris worked for the firm of Andrews Kurth LLP in Houston, Texas. He received his J.D. from the University of Houston Law Center in 2002 and his B.A. in Economics from the University of Texas at Austin in 1997. Mr. Norris is licensed in Colorado and Texas.
PROFESSIONALISM AND ETHICAL CONSIDERATIONS FOR THE TITLE EXAMINER
I. INTRODUCTION1
During the last forty years, the legal profession has seen the emergence of a "professionalism" movement that is separate from "ethics". In 1986, the American Bar Association ("ABA") Commission on Professionalism issued its seminal report on Professionalism to the Board of Governors and the House of Delegates of the ABA (the "1986 ABA Report").2 Since the issuance of the 1986 ABA Report, significant progress has been made to improve professionalism in the legal profession. The first part of this paper will focus on professionalism in the legal profession, including, differences between ethics and professionalism, factors contributing to the lack of professionalism and methods to improve professionalism. The second part of this paper will discuss the sources of ethical rules and title examination standards applicable to title attorneys. In addition, the second part of the paper will address the applicability of the attorney-client privilege to title opinions and other ethical considerations for title attorneys.
II. WHAT IS PROFESSIONALISM?
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a. Definition
The term "professionalism" has no generally accepted definition in the legal profession and several commentators have acknowledged that the term is very difficult to define.3 Many state bar associations have not defined professionalism. In fact, the ABA did not define "professionalism" in the 1986 ABA Report.4 There are, however, certain different definitions of professionalism used by different jurisdictions and scholars.
According to the American Civil Trial Bar Roundtable's A White Paper on Increasing the Professionalism of American Lawyers published in 2014 (the "2014 ABA White Paper"):
"While a precise definition remains elusive, broad agreement exists on professionalism's major components: competency, ethics, integrity, access to justice, respect for the rule of law, independent judgment, and civility are all generally accepted aspects of professionalism." 5
Dean Roscoe Pound of Harvard Law School formulated the following definition of professionalism 100 years ago:
"The term [professionalism] 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." 6
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The Florida Bar Standing Committee's working definition of "professionalism" is:
"Professionalism is the pursuit and practice of the highest ideals and tenets of the legal profession. It embraces far more than simply complying with the minimal standards of professional conduct. The essential ingredients of professionalism are character, competence, civility, and commitment." 7
Pursuant to the Colorado Principles of Professionalism, the term "professionalism" is not defined but rather is expressed as thirteen core principles and sixty-one practical considerations of professional behavior by attorneys.8 Many professionalism initiatives have been undertaken by the Colorado Bar Association, including a list of professionalism resources for Colorado practitioners, the enactment of Rules of Professionalism, a mentoring program for younger lawyers and other professionalism related initiatives.9
Obviously, it is difficult to pinpoint a true definition of "professionalism." Professionalism can generally refer to the nature of the profession and it can also refer to conduct. One commentator has noted that there is a risk that the term "professionalism" has become too generic with no substantive meaning.10
b. Differences between Professionalism and Ethics
In contrast to ethics, professionalism focuses on how attorneys treat others in daily interactions and is based on the famous Golden Rule. As one commentator has noted, ethical and professional lawyers can disagree without being disagreeable.11 Ethics rules focus on duties rather than on civil behavior.
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At least three states (Georgia, Louisiana and Ohio) distinguish between ethics and professionalism because those states have adopted separate continuing legal education requirements labeled as "ethics" and "professionalism."12
Former Georgia Chief Justice Harold Clarke described the distinction between ethics and professionalism as:
"....the idea that ethics is a minimum standard which is required of all lawyers while professionalism is a higher standard expected of all lawyers." 13
According to the State Bar of Georgia's website:
"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."14
c. Professionalism in the Legal Profession
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i. Public Perception
Public opinion surveys support the concern over perceptions of declining legal professionalism. For example, Gallup's annual survey on honesty and ethics in professions reveals "a growing skepticism among the American [p]ublic regarding the ethics of new professionals and lawyers."15 The Gallup survey asks participants to rate the honesty and ethical standards of people in various fields on a scale ranging from "very low" to "very high." Lawyers are currently rated as having high ethical standards by 21% according to Gallup News Services Poll dated Dec 8-11, 2014.16
The top fields receiving a rating of "high" or "very high" include:
o Nurses (80%)
o Medical doctors (65%)
o Pharmacists (65%)
o Police Officers (48%)
o Clergy (46%)
o Bankers (23%)
Joining lawyers, and their 21% rating, at the bottom of the list were:
o Business executives (17%)
o Advertising practitioners (10%)
o Car sales people (8%); and
o Members of congress (7%)
Americans have been asked by Gallup to rate the honesty and ethics of various professions annually since 1990, and periodically since 1976.17 Lawyers have always
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been at or near the bottom of this survey since inception. An ABA Section of Litigation study found that 69% of those surveyed agreed that lawyers are more interested in making money than in serving their clients.18 A 2007 survey conducted by the Illinois Supreme Court Commission on Professionalism reported that 92% of responding attorneys experienced "strategic incivility" at some point in their careers19 and 98% believed that a "win at all costs" mentality contributed to unprofessional behavior.20
ii. Reasons for Lack of Professionalism
Many commentators have suggested various factors contributing to the lack of professionalism in the legal profession. Several of these factors include, the "decline in lawyers' wages [and] . . . growth in the percentage of lawyers in the population", 21 competition in law school and/or law firms, demographic factors, prevalence of lawyer advertising, 22 non-local nature of the legal practice 23 and the media.
d. Improving Professionalism in the Legal Profession
The 1986 ABA Report urged that aspirational codes of conduct be adopted by the bar as a means of distinguishing standards of ethics and professionalism.24 The 2014 ABA White Paper, which updated previous White Papers by the American Civil Trial Bar Roundtable, addressed increasing the professionalism of lawyers and proposed various strategies for strengthening professionalism in the legal profession. Below are some of the suggestions from the 1986 ABA Report and the 2014 ABA White Paper:
i. Establishing Bar Professionalism Standards, Creeds, Oaths and Codes of Conduct
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As of the date of this paper, 44 state bar associations,25 the District of Columbia, numerous local bars and many federal courts have adopted professionalism standards. These standards cover a wide array of principles of professionalism but civility appears to be the most widely addressed topic. A significant number of states, including Colorado, Pennsylvania and Texas, have some form of civility and/or professionalism oath.
Colorado
The Colorado Principles of Professionalism were adopted by the Colorado Bar Association Board of Governors on May 12, 2012 which sets forth thirteen core principles and sixty-one practical considerations of professional behavior by attorneys. 26 These principles do not impose penalties or create any enforcement or disciplinary agencies. However, the Colorado Principles of...
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