The Attorney Personality v. the Lawyering Soul: One Lawyer's Opinion on Hope

• Citation: Vol. 29 No. 3 Pg. 0030
• Publication year: 2023
• Pages: 0030

The Attorney Personality v. The Lawyering Soul: One Lawyer's Opinion on Hope, Healing and the Sacred Work of a Noble Profession Vol. 29 No. 3 Pg. 30 Georgia Bar Journal December 2023

Every now and then the need to speak up for our profession—to proclaim and celebrate the ways in which it continues to represent some of the best of our culture—beckons.

BY DERRICK ALEXANDER POPE

OCTOBER - DECEMBER TERM, 2023

IN THE COURT OF PUBLIC OPINION

The Attorney Personality,

v.

The Lawyering Soul.

Case No. 1787 - 2023

Argued Oct. 14, 1988

Decided Oct. 14, 2023

ON WRIT OF CERTIORARI TO THE VARIOUS COURTS OF APPEAL IN EVERY CIRCUIT

Pope, J., delivered the opinion of the Court, in which the like minded are encouraged to join or concur. Dissent has filled the civic consciousness already.

Justice Pope delivered the opinion of the Court. Is there any value to a lawyering identity that (1) cherishes and cultivates a moralcentric purpose to our professional existence and (2) casts a dynamic impression of the grounding values necessary to a healthy society? We believe there is. For the reasons set forth below, we remand the matter and urge its thoughtful consideration by the bar.

The Chief Justice delivered the Opinion of the Court.^[1] A rabbi, a physician, and a lawyer walked into a bar. The bartender looked at the three with a gaze that betrayed the bewilderment of such unlikely happy-hour travelers. Nevertheless, the familiar question managed its way to the forefront. "What'll you have?"

The physician was first to respond.

"I'll have something light, something tropical. One of my patients is now cancer free. Another, who was pre-diabetic, is now healthier than ever. And another, who we thought could not conceive, is expecting twins! I have to say, today was a great day for healing!"

"I'll have the same," said the rabbi. "One young man came in today with thoughts of suicide. With prayer and counsel, we got him to see that there is still something precious and worthwhile of life even when how it is lived suggests otherwise. A married couple decided that divorce was not their desire, but that each other still was. I have to agree, today was indeed a great day for healing."

Nodding in the direction of the lawyer, the bartender asked, "What about you?"

Finding neither rhyme nor reason, or meter or scheme in the labors of the day, the lawyer slowly stood up, stepped back from the bar, turned in the direction of the door, wistfully looked at all three, and as if speaking to no one in particular said, "I wish I could have what they're having."

This anecdote speaks to a longing that inhabits the lawyering endeavor. Being thought of as a healing profession is a sentiment that has eluded our reflection. Yet, its need is occasioned by the unbecoming and norm-shattering ways that presently cast a pall on the profession. As professional identity is nearly inseparable from public image, perhaps the "deep sense of self in the particular role"^[2] of being a lawyer merits serious attention. Perchance, a professional identity akin to mending and curing what ails could be just what the juris doctor ordered.

Important issues are being weighed and tried in the court of public opinion, and their appearance has come before us "gradually and then suddenly."^[3] Nearly every aspect of modern living is met with a kind of stinging rebuke taxing our citizenship energies. Each of our once revered institutions is maimed and hobbled by cynicism, and, unsurprisingly, our legal system, and by implication, the legal profession, have not been spared. This is not a matter of first impression as both have been the object of an endless supply of berating jokes and the subject of a truckload of reports chronicling the loss and decline of respected attributes.^[4]

But it now visits us against the backdrop of "the wake of revolutionary upheavals and revolutionary changes."^[5] In this instant moment, the moving party's motion to dismiss the significance of the rule of law raises grave concern.^[6] Consequently, the various issues presented in these consolidated cases require immediate attention.

Every now and then "the need to speak up for our profession—to proclaim and celebrate the ways in which it continues to represent some of the best of our culture" beckons.^[7] Answering the summons requires the occasional reminder of the qualities that make ours a noble profession. That reminder should include getting reacquainted with the ennobling traits found in the types of people who become lawyers. It also demands that we revisit some troubling concerns that betray our calling, and, lastly, that reminder should move us to reimagine the ways those attributes converge to the benefit of those we serve, and to ourselves.

Despite being swept up in the torrent maelstrom of a neurotic redo of an earlier period, this moment pleas for soteriologi-cal advice; a rescue-oriented counsel from one accustomed to and undaunted by perilous times. That counsel will require an atavistic thinking about ourselves as law-yers—and law—in ways that are familiar, but not often emphasized.

To that end, this court offers the thoughtful consideration of a lawyering identity that (1) cherishes and cultivates a moral-centric purpose to our professional existence and (2) works to cast a dynamic impression of the grounding values necessary for a healthy society. To achieve this, let us explore in its fullest dimensions the aspirational standards of "moral achievement"^[8] and the joinder of that aspiration to a broadened understanding of "the special responsibility for the quality of justice."^[9]

In Whose Image? After Whose Likeness?

The entire legal profession-lawyers, judges, law teachers—have become so mesmerized with the stimulation of the courtroom contest that we tend to forget that we ought to be healers—healers of conflict.... Should lawyers not be healers: Healers, not warriors? Healers, not procurers? Healers, not hired guns?^[10]

The Attorney Personality

Ethical rules assign to members of the legal profession a quite distinct and specific tripartite image. "A lawyer is a representative of clients, an officer of the legal system and a citizen having a special responsibility for the quality of justice."^[11] Our principal concern here is the lawyer as a citizen, and how a moral-centric identity might figure in that role. But, as a threshold matter, some attention to the first offers value in understanding the third. We thus begin our focus on the function of advocacy.

"In our culture we have created an abstract image of the law and lawyers that guides our understanding more than our actual experience. ... These abstractions come from unreliable sources ... yet they dwell within the culture and public mind as if they were real and fixed."^[12] The image of the courtroom warrior, aided in no small part by motion pictures and television programs, has been etched indelibly in the minds of the public.^[13] Recently, advertisements promoting legal services have contributed to what, and how, the public thinks of attorneys.^[14] It is in the real-life work, however, where certain personality traits have been engendered by the avowal of what constitutes advocacy. These traits, at times, have proven to be less flattering, and dodgier, than we know.

Advocacy, in our ethical standards, is marked by the notion of "zealousness." Lawyers are told to "act with commitment and dedication to the interests of the client and with zeal in advocacy upon the client's behalf'^[15] and to "zealously assert[s] the client's position under the rules of the adversary system.^[16] In the process of time, however, a standard begat a mantra begat a dogma, and the image of an attorney as a "hired gun"^[17] was born.

Used by critics of the legal profession, clients, and even attorneys themselves, the metaphor characterizes the lawyer as one whose "skills are to be used solely and unreservedly to obtain what the client wants."^[18] From this, many believe that lawyers are willing to do whatever it takes to win a case, even acting in ways that "otherwise would be morally blameworthy."^[19] Risking charges of defensiveness and protectionism, we note the "certain unfairness in this since lawyers are not the principals but only the agents of those who are in conflict."^[20] Yet, this dubious makeup is the dominant and controlling descriptor of what it means to be an advocate, oftentimes becoming the reflexive, adopted posture of many a practitioner.

At one point, the hired gun persona ushered in a perceived loss of civility, a decline in public opinion, and an increase in professional dissatisfaction and dysfunction. This three-headed ogre prompted a need for a set of principles and standards, the adherence to which would permit us to remain, on the one hand and in some form, in good standing with the public, and on the other, unclustered with ourselves. Consequently, the organized bar became gung-ho advocates for professionalism, a term that has become the shorthand expression of the sort of values, ethics, and attributes to which each and every member of the bar is expected to personify.

Professionalism

Nationwide, the roots of professionalism are traceable to a 1986 report from the American Bar Association entitled, "A Blueprint for the Rekindling of Lawyer Professionalism." This report laid the foundation for a number of state efforts to formalize restoring the legal profession to the halcyon days of public esteem and civility among its members. In 1989, Georgia established the Chief Justice's Commission on Professionalism to "identify, enunciate and encourage adherence to nonmandatory standards of professional conduct."^[21] In addition, Georgia instituted, among other things, a lawyer's creed, a statement of professional aspiration and continuing legal education requirements devoted exclusively to the matter.

At the peak of...