Toward a community of professionalism.

• Date: 22 September 2001
• Author: Bien, Elliot L.

1. INTRODUCTION

   Many judges and lawyers in the United States believe there has been a serious decline of professionalism in the conduct of litigation. And the professionalism they have in mind does not reflect academic debates on that subject, but rather the everyday concerns and frustrations of judges and practitioners. There are constant complaints that lawyer advocates engage in too much posturing and invective, too little cooperation and courtesy, too many unnecessary proceedings, and too much exaggeration or outright misstatement of fact and law.

   To conduct litigation "professionally" in this sense means to abide by the rules and ideals of the adversarial system, some of which are identified later in this article. The best analogy, therefore, is the concept of sportsmanship. Like professionalism in competitive advocacy, sportsmanship demands not merely compliance with official rules but also adherence to ideals about grace in athletic competition -- even when it involves violent physical clashes. Rules and ideals about the conduct of warfare also come to mind as an analogy to professionalism in this sense, but the analogy is too belligerent for present purposes.

   Nor is "civility" an adequate synonym, in the familiar usage equating civility "with decorum, with temperateness of speech, with politeness and a high-minded determination not to descend from principles to personalities." (1) While civility of that kind is a critical element of the professionalism that judges and lawyers find lacking, the two terms are not interchangeable. Most significantly, the concept of professionalism includes rules and ideals about the content of advocacy, not merely its manner. Thus, for example, no matter how gracious advocates may be in their speech or writing, they would still violate the dictates of professionalism by misstating or failing to disclose important precedents.

   It is extremely difficult, of course, to measure the actual level of professionalism in advocacy today, let alone compare it to some earlier time. Nevertheless, there is undeniable evidence of a widespread perception of decline in this kind of professionalism. The American Bar Association's Center for Professional Responsibility keeps a tally of professionalism and civility codes in American jurisdictions. (2) As of this writing there were no fewer than 136 of such codes on the ABA's web site. (3) Even more remarkably, the overwhelming majority of those codes were adopted in the last ten years. (4) The numbers and timing evidence an acute national concern about this kind of professionalism.

   Unfortunately, the ABA's web site fails to report whether these new codes are making a difference. Experience suggests not. If anything, they appear more effective at generating sanctions litigation than raising professionalism. (5) Nevertheless, codes and sanctions have been the main response of our legal system to this serious problem.

   This article proposes a new strategy. While its inspiration is the English barrister tradition, consider first a prominent American sociologist. Amitai Etzioni began a recent book by citing a code of sexual civility adopted by Antioch College in 1992. (6) The code represented "a lengthy, detailed, written list of instructions that students, faculty, and staff [were] expected to follow when they proposition[ed] each other." (7) But Etzioni wrote that the main value of this "near-desperate attempt to restore rules of conduct" (8) was not its likelihood of success, which he regarded as slight despite the threat of sanctions up to expulsion. (9) Rather, he saw the code as evidence of a social problem more profound than sexual misconduct--the lack of such basic shared values as mutual respect. As Etzioni put it, the promulgation of the Antioch code "point[ed] to the need for an approach to the regeneration of moral values and commitments that is markedly different from enforced codes." (10)

   Etzioni's prescription is to strengthen people's identification with a community (defined as "a web of affect-laden relationships" (11)) that shares and reinforces the desired values. (12) "The sociological fact is that values do not fly on their own wings...." (13) Individual motivation is not sufficient. Values require the support of a community's "moral voice," by which Etzioni means the communication of peer approval or disapproval to the individual members. If the community's moral voice "is feeble or absent, if the community disregards the extent to which its members live up to or ignore shared core values, the community's silence becomes a major reason values are disregarded." (14)

   The English barrister tradition is proof of Etzioni's thesis and, at the same time, an intriguing model for increasing legal professionalism in America. Historically, the barristers as a group have maintained a stellar reputation for professionalism in an adversarial legal system similar to our own. One American lawyer recently voiced tremendous admiration after practicing as a barrister for seven years in London: "You never have to watch your back in England.... No one stoops to foul blows or misleading tactics. They think of themselves as above that." (15)

   Evidence suggests that the key to the barristers' professionalism is their sense of community--a strong identification with one another and the judges before whom they practice. Several years before Etzioni published his book about values and peer pressure, the four English Inns of Court had this to say about the barristers' community:

   The fact that most practising barristers work in a number of small, closely knit communities such as the Inns of Court is perhaps the most effective discipline of all. The fear of obtaining the label of "sharp" within this collegiate community is a powerful deterrent to those who might otherwise be tempted to stray from the high standards of conduct and integrity which are the rule, and of far greater efficacy than any threats of possible disciplinary sanctions. Through this association the Inns are able to develop a truly professional spirit.... (16) A word of caution, however, is in order. There are profound differences between the English and American legal systems and societies in general. (17) One difference, for example, is the much stronger current of individualism and acquisitiveness that runs on this side of the Atlantic--traits that resist any moral voice urging restraint for the greater good of the legal system and the public at large. Although the strategy I propose includes some force, not just sermonizing, it will not produce a sudden blossoming of professionalism. Change is never easy.

   But that is no excuse to sit on our hands, continue to bemoan the decline in professionalism, and continue to pretend that more and more codes and sanctions will make a difference. They will not. A more effective strategy is available, and we should pursue it for whatever progress we can achieve. Professionalism is far too important to accept its decline as inevitable.

2. A MODEST PROPOSAL FOR EMULATING THE BARRISTERS

   In The Taming of the Shrew, a suitor invites his competitors to "do as adversaries do in law, [s]trive mightily, but eat and drink as friends." (18) Shakespeare's words first appeared in 1594, four years after membership in the Inns of Court became a prerequisite for advocacy rights in the higher courts of England. (19) And to this day, English barristers continue to "eat and drink as friends" in or around the Inns even while competing vigorously in court and the marketplace. They form a classic community in Etzioni's sense of that word. (20) Indeed, their community embraces most of the higher-ranking English judges, who started out as barristers themselves (21) and continue to be engaged in the life of the Inns.

   To be sure, the history of the barristers includes discrimination (22) and some other phenomena--those wigs, for example--obviously unsuitable for emulation in the American legal system. Nor can Americans hope to emulate, or wish to emulate, the factor of social class that helps explain the cohesiveness and ideals of the English barristers. (23) Nevertheless, their reputation for professionalism demands that we consider their tradition for potential emulation in an American way. It is noteworthy, for example, that professionalism for them is a matter of custom, not written codes of conduct. No such code even existed for barristers until 1980. (24)

   One attempt to emulate the barrister tradition is the American Inns of Court movement, which encourages groups of judges, lawyers, and third-year law students to hold monthly meetings oriented toward education and mentoring. (25) Professionalism is a central theme of the movement, inspired by former Chief Justice Warren Burger following an Anglo-American exchange program in 1977. "Chief Justice Burger thought that many of the positive values of the English Inns, such as integrity, civility, and collegiality, integral concepts of the English Inns, could be transported to America." (26) Although the grass-roots quality of the resulting movement is a welcome force for professionalism, more can and should be done. The moral voice of each Inn is restricted to a small number of individuals.

   Another idea floated by Chief Justice Burger, likewise inspired by the barrister tradition, was to establish a specialized trial bar. (27) However, the enormous size and decentralization of the American trial court system make it impossible to develop any true analogue to the barrister tradition even on a statewide level. (28)

   This article proposes a smaller-scale analogue that can be duplicated at will throughout the country. The essential first step is to create a community capable of generating effective peer pressure for professionalism. This step requires an identifiable group of lawyers, lawyers who know that they and discernable others belong to that group. The best way to accomplish that goal and, at the same time...