Defining professionalism: I know it when I see it?

• Author: Rizzardi, Keith W.
• Position: Florida

Nearly two decades ago, the American Bar Association concluded that "lawyers' professionalism may well be in steep decline." (1) Subsequent surveys by The Florida Bar demonstrated a historic collapse of public trust in the legal profession. In response, leaders of the American Bar Association, the Florida Supreme Court, and The Florida Bar took action. Today, the Florida Supreme Court's Commission on Professionalism, The Florida Bar's Center for Professionalism, and The Florida Bar's Standing Committee on Professionalism are charged with the responsibility of "encouraging adherence" by Florida lawyers to aspirational standards of professionalism. (2) These three entities were established by orders of the Florida Supreme Court and the Rules Regulating The Florida Bar. (3) Yet, despite this institutional commitment, the professionalism concept is undefined.

Lon Fuller wrote that to be moral, law must be promulgated. (4) Similarly, Sir Thomas Aquinas wrote that even though generally understood notions of morality may dictate appropriate conduct, promulgation is necessary for law to obtain its force. (5) But ask the average Florida Bar member to apply these concepts to the professionalism movement, and you are likely to be answered with a moment of thoughtful silence. Their silence is understandable, because in its present form, the concept of professionalism follows the thinking of neither Fuller nor Aquinas. Instead, professionalism is defined by the lack of a definition, following Justice Potter Stewart's "I know it when I see it" approach to defining pornography. (6)

The Rules Regulating The Florida Bar, however, bestow authority upon the Center for Professionalism to implement this undefined concept. Specifically, Rule 191.1 states:

This rule is adopted in recognition of the importance of professionalism as the ultimate hallmark of the practice of law. The purpose of this rule is to create a center to identify and enunciate non-mandatory standards of professional conduct and encourage adherence thereto. These standards should involve aspirations higher than those required by the Rules of Professional Conduct.

This rule tells us only that professionalism is important, associated with conduct, and aspirational. Other rules governing the authority, funding, and operation of the Center for Professionalism are similarly unhelpful in defining the term. (7) Fla. Bar Rules 19-1.2 to 19-1.5.

Apparently aware of the lack of a formal definition, the Center for Professionalism refers interested persons to materials defining professionalism on The Florida Bar Web site. For example, the Web site quotes Harold G. Clark, chief justice of the Supreme Court of Georgia, who said "professionalism differs from ethics in the sense that ethics is a minimum standard ... while professionalism is a higher standard expected of all lawyers." (8) Georgia's Code of Professional Responsibility is also quoted: "No code or set of rules can be framed which will particularize all duties of the lawyer ... [T]he enumeration of particular duties should not be construed as a denial of the existence of others equally imperative, though not specifically mentioned." (9) These definitions are defined by their lack of definition. So, the question remains: What is professionalism?

Mandating Procedural Professionalism

Some scholars suggest that the lack of definition for the concept of professionalism is reasonable because the concept is too broad. (10) Similarly, the Florida Supreme Court has wrestled with the meaning and application of the word, (11) labeling it as "vague" in some contexts, (12) and the American Bar Association and The Florida Bar began grappling with the professionalism concept 15 years ago. (13) Today, given our leading role in what is now called the professionalism movement, Florida's lack of a definition can be excused no longer--especially because the aspirational goal of professionalism is looking more and more like a mandate.

Recently, the Bar's rules were amended to require new members to complete basic skills course requirements, as well as the "Practicing With Professionalism" program. Fla. Bar Rule 6-12.3(a)(1). In addition, all members are required to obtain five credits in ethics, professionalism, substance abuse, or mental illness awareness training as part of their CLE requirements. Fla. Bar Rule 6-10.3(b). These rules achieve what can be called procedural professionalism--lawyers are not actually mandated to be professional; rather, they must report that they have attended some form of professionalism training. (14) If The Florida Bar's goal is to achieve substantive professionalism, rules requiring procedural professionalism are insufficient.

Supporters of these CLE rules rightly note that even procedural rules can be meaningful. After all, The Florida Bar is empowered to enforce the rules, and can assume that the CLE programs will teach people something about professionalism. The argument disguises the essential point: If the professionalism concept is important enough to justify enforceable rules and mandatory training for all members of The Florida Bar, then the concept is also important enough to warrant a concrete definition, as even the Fourth DCA has suggested:

Much is written about "professionalism" today. It is on the agenda at every lawyer and judicial symposium or continuing education conference, and our professional journals are filled with pleas for greater attention to punctilious conduct in all things. But today's case requires that we pass from exhortation to the resolution of a concrete issue. For the disciplinary rule of candor is the instrument of professionalism's demand.

Forum v. Boca Burger, Inc., 788 So. 2d 1055 (Fla. 4th DCA 2001) (awarding fees from defendant and defense counsel for trial and appellate court efforts to uphold a "patently erroneous decision") (emphasis in original).

Seeking Substantive Definition

The Florida Bar might begin an effort to substantively define professionalism by reviewing different sources within its own literature that partially address the topic: 1) the Rules of Professional Conduct; 2) the Ideals and Goals of Professionalism; 3) the Guidelines for Professional Conduct; 4) the CLE Guidelines; 5) the Oath of Admission; and 6) the Creed of Professionalism, available through the professionalism links on the Bar's Web page at floridabar.org.

* The Rules of Professional Conduct

Although the term "professional" is present...