What judges can do about legal professionalism.

• Author: Shepard, Randall T.

We lawyers rightly perceive that over the last few decades our profession has increasingly fallen under the sway of economic pressures and practices akin to those experienced by regular business enterprises. This trend has prompted a prolonged period of self-examination about our role as professionals. There is widespread interest in efforts to rebuild our tattered collegiality, and much of the discussion focuses on what judges can do. The answer is: less than the whole task and more than we suspect.

The law profession pays careful attention to the substantive law explicated by courts but scant notice to courts' institutional role as standard-bearers for the profession. Many reasons might account for this dearth in attention to the full scope of judges' work. One may be that judges, idealized in our society as blind and neutral arbiters, generally do not bring attention to ourselves. Judges strive to do justice, but we reveal little about how we function. Practicing attorneys, on the other hand, tend to be most concerned with their clients' pursuit of discrete outcomes, and thus they are not as focused on the work of judges beyond rules and holdings that affect their practice.(1)

Perhaps most importantly, the public at large possesses only a general understanding of what judges do. I believe that most people hold judges in high esteem,(2) but without much understanding of the depth and scope of our work. We are sometimes assaulted in the public press, where some folks complain that we are unelected revolutionaries who rewrite the Constitution,(3) while others call us klansmen in black robes(4) who reinforce society's existing power structure. Whatever the reasons that the work of judges is so poorly understood, that reality should be cause for concern by anyone worried about professionalism in the practice of law.

Judges can be and ought to be key figures in maintaining integrity and professionalism in the practice of law. While most public policy is made in other branches of government, we are responsible for making policy in one vital area: setting the standards for the way law is practiced. Judges write rules of procedure and professional responsibility, and lawyers and nonlawyers; alike look to judges for models of integrity, civility, and professionalism.(5) Still, the profession, the bench, and the academy have largely failed to articulate a clear judicial role. More thought must be devoted to the full scope of judicial responsibility. This essay is an attempt to advance the discussion.

My thoughts about the role of judges are organized in three parts. Part one considers the role courts play in the first layer of legal education. From the Socratic dialogue to the teaching of legal writing, law students are initiated into the profession by reading the work product of appellate courts. Can judges do more to inculcate high levels of professionalism in the preparation of lawyers? Undoubtedly the answer is yes. Part two examines judges' work in our institutional role. From the judge as rulemaker and disciplinarian to the judge as lawyer, there are countless opportunities for the judiciary to promote professional integrity. Part three explores the relationship of judges to people and organizations in the path of law reform. The American Bar Association, state and federal judicial conferences, the Federalist Society, academia, and the coordinate branches of government bring together people concerned about both the state of law and the practice of law. Each body approaches the discussion with differing priorities, and judges must actively participate in this discussion.

Judicial Role in Preparing Professional Lawyers

For all the talk about reinventing legal education for global life in the next millennium, new lawyers enter the guild with an introduction to substantive legal topics that would suit William Blackstone just fine. The first year of law school is still largely dedicated to the strange and decidedly unfriendly task of "learning to think like a lawyer." We hear this from the very beginning as students, and, as lawyers, we tend to look back at the experience and think, "Well, that's the way it's done." Thus, when a student walks into a law school for the first time, he or she is likely to be greeted with an orientation process that features speakers who discuss topics such as briefing cases, classroom preparation, study groups, and maintaining a balanced personal life. It is also likely that a dean or esteemed member of the faculty will deliver a speech emphasizing the traditions of high ethics and public service that mark the profession's heritage. When orientation ends, students wade into the competitive waters of law study, unaware that they have begun the process of assimilating professional norms, ethics, and values many months before they receive the feedback of their first grades.

Lessons learned in the rigors of competition come early. Most students dread the Socratic dialogue, but a few confident "gunners" are willing to test their oral skills. These folks make everyone else nervous. Soon, whatever balance one enjoyed in life before law school has dissolved into an intense effort merely to keep up or not to be outdone. Meanwhile, as many students prepare in the hope of not being noticed by the professor, they begin to discover that understanding the cases is much easier when a commercial study aid or an upperclassman's old outline is used to underscore the "black-letter" rules. Far too easily, competition leads to outcome-based thinking, craft gives way to experience, and the process of learning to think like a lawyer takes hold in unintended ways.

I paint this picture as a primary image because it highlights the point that professionalism begins at the beginning.(6) From the first moment a student steps through the law school door, he or she begins to lay the foundation of a professional reputation. Moreover, he or she likely does this amid the fiercest academic competition ever encountered.

Defining the nature of this experience tends to shape the sort of budding young practitioners sent out from law school. We have largely assigned the task of devising the experience to law faculty. Just about everybody else, from trustees to alumni to public officials, play only peripheral roles.

How can judges fit into this equation? As Dean Anthony Kronman of Yale Law School points out, the first way law students are taught to think like lawyers is by reading and discussing judicial opinions.(7) Dean Kronman adds that students are both trained to predict what judges will do when faced with various types of facts and disputes and encouraged "to accept the judge's perspective as the central and defining one for the profession as a whole."(8) This suggests a law faculty more adulatory than the one I remember, but it is certainly true that judges are held up as models to law students and thus exert a substantial amount of influence over the academic and normative process that law students undergo. Judges occupy this central position simply because it comes with the territory. And so the question transforms itself: What more can judges do to shape the normative development of our aspiring lawyers?

As a primary matter, judges must maintain the highest standards in the practice of crafting opinions. The best example of judicial responsibility is the manner of executing the judicial duty. The gravity of deciding what is right and wrong, true and untrue, is heavy, and it must be treated as so. It is the responsibility of the courts to ensure that ours is a nation of laws, not persons.(9) Explication of the law, even when in dissent, cannot be personal, political, or preferential, lest the rule of law be undermined.

All of us appreciate good writing, but judicial opinions and orders are not literature. At the end of the day, real people with rights and responsibilities will be affected, and they must be made to believe that the result was the product of serious endeavor. Cute phrases and gratuitous put-downs of...