Redefining professionalism? Florida's code mandating the aspirational raises challenging questions.

• Author: Rizzardi, Keith W.

Responding to continued criticism of the legal profession, Florida recently adopted a new Code for Resolving Professionalism Complaints (professionalism code). (1) The new requirements transform the aspiration of professionalism into a mandate, but important questions remain as to the meaning of key terms and the methods of implementation.

In its opinion approving the professionalism code, the Florida Supreme Court stated that Florida lawyers had "traditionally followed a more passive, academic approach to enhance and improve professionalism." (2) In other words, the combination of continuing legal education programs, speeches, contests, and meetings--methods once called "procedural professionalism" in a 2005 Florida Bar Journal article (3)--have been insufficient to reverse the perception problems. But on occasion, The Florida Bar does use existing rules to tackle challenging problems of lawyer behavior that also could be characterized as gross violations of professionalism standards. (4) For example, R. 4-8.4(d) of the Rules Regulating The Florida Bar prohibits lawyer misconduct that is prejudicial to the administration of justice, including conduct "to knowingly, or through callous indifference, disparage, humiliate, or discriminate against litigants, jurors, witnesses, court personnel, or other lawyers on any basis...." Nevertheless, the professionalism code represents another tool to directly regulate individual lawyer conduct, providing new rules for initiating, processing, and resolving professionalism complaints.

Can "Unprofessionalism" be Defined?

Professionalism was once a shared aspiration of the members of The Florida Bar, as described in a "Working Definition of Professionalism" published by The Florida Bar Henry Latimer Center for Professionalism: "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." (5)

The call to the "highest ideals," or even civility, is still an amorphous concept. Seeking to rectify that definitional problem, the professionalism code embraced a new term. "Unprofessional conduct" means substantial or repeated violations of the Oath of Admission to The Florida Bar, The Florida Bar Creed of Professionalism, The Florida Bar Ideals and Goals of Professionalism, the Rules Regulating The Florida Bar, or the decisions of the Florida Supreme Court. (6)

Explaining this definition, the court opinion notes that it "provides an integrated standard based on the standards previously adopted and already in existence for many years." Yet by the court's own acknowledgement, the Bar continues to experience "significant problems that are unacceptable, requiring further and more concrete action.... Professionalism is one of the most significant adverse problems that negatively impacts the practice of law in Florida today." In other words, the new definition of professionalism incorporates by reference multiple existing documents that have proven themselves insufficient to solve the fundamental problem.

Moreover, the definition of "unprofessional conduct" obliterates the traditional boundary between ethics and professionalism. In the past, scholars have distinguished ethics from professionalism by emphasizing the consequences; ethics reflected the codified and enforceable standards of the profession, while professionalism was a higher, aspirational standard. (7) Now that a violation of an aspirational standard has consequences, lawyers need new ways to delineate the terms.

Will Reasonable Lawyers Disagree on How to Comply?

Definitional confusion is not just a theoretical problem. What, exactly, will it mean to "comply" with the new prohibition of unprofessional conduct? For example, according to the Oath of Admission to The Florida Bar, lawyers must "employ for the purpose of maintaining the causes confided to me such means only as are consistent with truth and honor, and will never seek to mislead the judge or jury by any artifice or false statement of fact or law." Is it dishonorable for a successful trial lawyer to portray himself to a jury as humble and struggling by appearing in court with a hole in the soles of his shoes? (8) The Oath of Admission also says lawyers "will abstain from all offensive personality" and the Florida Creed of Professionalism says that lawyers "will abstain from all rude...