Professionalism and Legal Ethics:Do They Reinforce Each Other?

Presented by the Professional Responsibility CommitteeOctober 27, 2016

Keith R. Fisher (moderator), National Center for State Courts, Arlington, VA

Hon. Douglas S. Lang, 5th District Court of Appeals, Dallas, TX

Frank E. Stevenson, Locke Lord, LLP, Dallas, TX

Verna E. Monson, Ethics Education in Professions & Business, Minneapolis, MN

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PANELISTS’ BACKGROUNDS

CORE VALUES OF THE PROFESSION

EXAMPLES OF UNCIVIL, UNPROFESSIONAL BEHAVIOR

“A WHITE PAPER ON INCREASING PROFESSIONALISM”

REPUTATION

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DISCUSSION POINTS

ORGANIZATIONAL & INDIVIDUAL

PROFESSIONALISMVerna E. Monson, Ph.D.

Educational Psychologist, Legal Advocate, Coach, &

Certified Immunity to Change Facilitator

American Bar Association Business Law Conference Webinar

October 28, 2016

ACKNOWLEDGMENT

My deepest gratitude:

Dr. Michael D. Brennan, MD, FRCPI, of the Mayo Clinic Program in Professionalism and Ethics

Dr. Mickey Bebeau, Ph.D., Center for the Study of Ethical Development, University of Minnesota

Dr. Fred Hafferty, Ph.D., Mayo Clinic Program in Professionalism and Ethics

Dr. Robert Kegan, Ph.D., & Dr. Lisa Lahey, Ed.D., Harvard University & Minds at Work Consulting

Neil Hamilton & Jerry Organ, University of St Thomas School of Law

BACKGROUND: Based on over fifty site visits to study how professional schools educate lawyers, physicians, clergy, engineers, and nurses, Carnegie Foundation for the Advancement of Teaching president Lee Shulman found that

“The most overlooked aspect of professional preparation was the formation of a professional

identity with a

moral core of service and responsibility”

…around which each student’s habits of mind and practice are organized.

Educating Physicians (2010)

Individual Professionalism

INDIVIDUAL PROFESSIONALISM IN LAW

Neil Hamilton

BACKGROUND: FOUR COMPONENT MODEL OF MORALITY (FCM) (BEBEAU, 2002; REST, 1983)

Motivation & Identity

• capacity to interpret ambiguous clues in real-life settings

Moral Sensitivity

• capacity to analyze moral issues and provide justifications for decisions

Moral Judgment

• beliefs and understanding of professional role concepts

Moral Motivation &

Identity• Interpersonal and

communication skills, teamwork, negotiation, clinical

Moral Implementati

onMoral Behavior

DEST

DIT

PROI

OBSERVE

Moral Capacity Operational Definition Measures

LEVELS OF IDENTITY FORMATION IN THE PROFESSIONS

Instrumental Mind (Stage 2): Views self in terms of own interests and desires,

is egocentric; thinking is concrete, black and white (adolescence and early adulthood).

Socialized Mind (Stage 3): Characterized by increased shared

interconnections, values, and mutual expectations. Can be idealistic and internally

self-reflective, but the self can be subsumed within the social surrounding of peers, friends, spouse, or family (some adolescents and most adults are in this stage).

Self-Authored Mind (Stage 4): Hallmarked by a self-defined system of

values that can be distinct from one’s social groups. Is increasingly self-reflective and intentional in examining the sources of one’s understanding.

Self-Transforming Mind (Stage 5): Characterized by the ability to examine

the limitations of one’s self-authored personal authority, recognize the limits of any one system of constructing meaning, and seek out novel or alternative systems. Increasing recognition of the interdependencies of different systems or ways of understanding the self and the professional role.

[1]

Source: Bebeau, 2002; Kegan, 1994; Kegan & Lahey, 2009

IS (Identity)

Does (knows)

Shows How (Performance)

Knows How (Competence)

Knows (Knowledge)

Professional

Identity

FormationCruess & Cruess

THE HIDDEN CURRICULUM OF PROFESSIONALISM

• The norms and practices are transmitted both

intentionally and unintentionally through the moral

milieu of the law school or organization

• These messages operate covertly or below our level

of awareness – called the “hidden curriculum” –

and are present in education or in organization life.

Fred Hafferty

BEHAVIORS & UNCONSCIOUS EMOTIONS OR BELIEFS

What we observe (behaviors)

• Unconscious Core Beliefs (win at all costs)

• Values or norms acquired fromthe organizational culture

• Stress, addictions, lifestyleissues, mental health issues, bullying

• Fear (job loss, alienation)

Threats to

Safety /

Reputation /

Status Quo

Incivility,

Rudeness

PROFESSIONALISM MOVEMENT (IN MEDICINE)

(HAFFERTY, 2008)

Phase Objectives

Sixth Relationships Between Systems – Complexity Science?

Fifth

Shaping the “Hidden Curriculum”– emphasis on the

organizational culture, individual identity and values, moral

capacities, unintended effects of policies, hidden

assumptions

FourthInstitutionalization of Assessment – emphasis is on observed

behaviors

Third A Call to Assess Professionalism Competencies

Second Scholarship that Defined the Meaning of Professionalism

First A Call for Greater Emphasis on Professionalism

Organizational Professionalism

PROFESSIONALISM AS CULTURE

Professionalism is …

• The characteristics and values of an organization’s culture –high trust / low trust; inclusive/respectful; transparent

• Policies that attend to the well-being of all workers –safeguards against burnout / capacity building

• The trust in an organization’s “brand” – Mayo Clinic’s reputation based on high trust given by the public and other professionals

• The performance of the organization compared with federal standards / other organizations

WELL-BEING & PROFESSIONALISM

• Employees who have their basic needs met will be more engaged, both cognitively and emotionally

• Well-being can be enhanced through training in mindfulness, effective team skills, and through fostering a culture of respect and caring.

Handehman et al. 2009; Krasner, Epstein, Beckman, Suchman, Chapman et al., 2009; Leape, Shore, Dienstag, Mayer, Edgman-Levitan et al., 2012.

EMPLOYEE ENGAGEMENT & ORGANIZATION PERFORMANCE

Researchers at Gallup demonstrated a causal link

between levels of employee engagement and

improved business outcomes, including employee

retention, customer satisfaction and loyalty,

productivity, and profitability.

Harter et al. 2010

EMPLOYEE ENGAGEMENT

Disengaged employees are

• At significant risk for illness and chronic health problems,

• more likely to be diagnosed with depression, increased

stress levels, and greater risk of heart disease,

• happier overall, and experienced less sadness and stress at

work (Harter & Strong, 2009).

Disengaged employees with new illnesses cost the

company twice as much (Agrawal & Harter, 2009).

CONCLUSION

• Individual-level professionalism education and

development is necessary but insufficient

• Organizational-level professionalism draws upon an

extensive body of research on organizational effectiveness

that can inform law school, law firm leaders, or members of

the judiciary what approaches are available to assess the

“hidden curriculum”

QUESTIONS FOR REFLECTION

• How would you describe the culture and values of your organization?

• What are the values that are espoused vs. actual behavior?

• How would you assess the level of trust?

• How is professionalism shaped by the culture of your organization?

Because organizations are sets of sub-cultures,

leaders must always accept that nothing will

change until they understand the culture of the

group in which the behavioral changes are to

be made.

Edgar H. Schein, Ph.D., (2008). Helping: How to Offer, Give, and Receive Help.

Verna Monson, Ph.D.Educational Psychologist, Advocate, Coach, & Consultant,

Certified Immunity to Change Facilitator

612-282-9472

verna.monson@gmail.com

Core Values

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●Honesty

●Integrity

●Civility

●Competence

Kindergarten Rules

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• Don’t lie.

• Don’t steal.

• Don’t hit anyone.

Duty of “Zeal in Advocacy”

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“These principles include the lawyer’s obligation zealously to protect and pursue a client’s legitimate interests, within the bounds of the law, while maintaining a professional, courteous and civil attitude toward all persons involved in the legal system.” Model Rules of Professional Conduct: Preamble and Scope, sec. 9. (See also, Where Did the Zeal Go?, Lawrence J. Vilardo and Vincent E. Doyle, III, Litigation, 38, No. 1, Fall 2011).

Can Zealous Advocacy ...

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. . . become unprofessional andunethical advocacy?

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Express Your “Inner” Thoughts?

Voicemail: A Good Way to

RECORDED RAGE!!!!

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Statemen

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Rule 4.1:

A lawyer shall not knowingly –

● make a false statement of material fact or law.

● fail to disclose a material fact when disclosure is necessary to avoid assisting client in a criminal orfraudulent act.

Truthfulness ints to Others

Civility

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“[Civility . . .] is not some bumper-stickerslogan, ‘Have you hugged your adversary

today?’ Civility is the mark of an accomplishedand superb professional, but it is even more

than this. It is an end in itself. Civility has deeproots in the idea of respect for the individual.”

Justice Anthony Kennedy, 1997 Speech,ABA Annual Meeting

Texas Lawyers Creed

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“I. OUR LEGAL SYSTEM

A lawyer owes to the administration of justice personal dignity, integrity, and independence. A lawyer shouldalways adhere to the highest principles ofprofessionalism.

l. I am passionately proud of my profession. Therefore, ‘My word is my bond.’ * * * *”

(Note: Approximately 2/3 of State Bars have similar standards or creeds).

The American College of Real Estate Lawyers

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STATEMENT OF PROFESSIONALISM

● Members must adhere strictly to applicable legal andethical standards of professional responsibility, acting with fairness, honesty, personal dignity andprofessional integrity.

● Members must scrupulously honor commitments made and extend civility and courtesy to all persons.

● Members should advise clients that civility andcourtesy are not to be equated with weakness but are consistent with vigorous advocacy and zealousrepresentation. (Excerpts from Statement of October 2004).

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Lawyer incompetence ?!

or Obstructive Conduct by Lawyers.”

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•NO. 07-4917 Huggins v. Coatsville Area School District, et al, (E.D. Pa. 2009). (conduct in depositions violated Disc. Rule 3.5(d), lawyer shall not “engage in conduct intended to disrupt a tribunal.” Lawyers required “to join each other for an informal meal in an effort to facilitate the repair of their professional relationship.” Citing Shakespeare “And do as adversaries do in law, Strive mightily but eat and drink as friends.”

“Uncivil, Abrasive, Abusive, Hostile

Gross Incivility In Conduct Toward Judges and Attorneys-Violations of (among others) Florida Bar Rule 4-8.4(d)

[similar to ABA Model Rule 8.4(d)] for “relentless unethical

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and unprofessional behavior towards opposing counsel.”

No. SC11-1356, Florida Bar v. Jeffery Alan Norkin, Supreme Court of Florida, October 31, 2011.

(administrative recommendation for 90-day suspension, followed by eighteen-month probation, enhanced by Supreme Court to impose a two-year

suspension and a public reprimand, and lawyer required to undergo a mental health evaluation and

participate in any recommended counseling).

Violated.”

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• In the Matter of Anonymous Member of the South Carolina Bar, No. 26969,

• April 25, 2011.

“Lawyer’s Oath of Civility

Administration of Justice

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“I have a client who is a drug dealer. . . . He informed me your daughter was detained for buying cocaine. . . . Does this make you bad parents? This incident is far worse than the allegations your client is making.

Conduct Prejudicial to the

Conduct . . .

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I just thought it was ironic. You claim this case is soserious . . . . There is nothing more serious . . . than having a child grow up . . .turning out buying drugs . . .. Think about it. Am I right?” (E-mail to Opposing Lawyer)

In the Matter of Anonymous Member of the South CarolinaBar, No. 26969, April 25, 2011 (Lawyer’s Oath of Civility violated)

“Violation of Oath of Office.”

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In re P. Michael DuPree, 401 S.C. 553(S.C. 2013)

Rule 8.4 Misconduct

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“It is professional misconduct for a lawyer to: * * *

(b)commit a criminal act that reflects adversely on thelawyer’s honesty, trustworthiness of fitness as a lawyer inother respects;

(c)engage in conduct involving dishonesty, fraud, deceit or misrepresentation;

* * *

(e) state or imply an ability to influence improperly agovernment agency or official or to achieve results by means that violate the Rules of Professional Conduct or other law”* * * *

Rule 4.1

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A lawyer shall not knowingly –

● make a false statement of material fact or law

● fail to disclose a material fact when disclosure is necessary to avoid assisting client in a crime or fraud

“Lawyer’s silence as to fraud

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by client in real estate deal.”

● In re Austern, 542 A. 2d 680(D.C. 1987)

Facebook Clean of Damaging Evidence”

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“Lawyer Directed Client to Wipe

Allied Concrete Co. v. Lester, 736 S.E. 2d 699 (Va. 2013);(client and lawyer sanctioned $722,000 by court forspoliation of evidence; bar suspended lawyer’s licensefor five years). See Model Rules 4.1, 8.4; VariousCreeds, “My word is my bond.”

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The Rainmaker: “Experienced” Lawyer’s Advice to New Lawyer

“Try not to lie.”

“What they don’t teach you in lawschool can get you hurt.”

Questions

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•Are HonestyAnd Civility

One?

• Is Honesty Optional?

Some Say Honesty Is Optional

•- Lying Can Be Virtuous!

“[I]n situations where honesty conflicts withother important values, there is no reason topresume that honesty should prevail.”

Test: One should lie only when moral costs of lying are “exceeded by the morally relevantbenefits.”

Virtuous Lying: A Critique of Quasi-CategoricalMoralism, 12 Geo. J. Legal Ethics 433 (1999)

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Prof. William H. Simon’s“Balancing Test” For Lying

Misrep

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● He lied for a client to confront food stampadministrator.

● Simon decided, on his own, the moral costsof lying were “exceeded by the morallyrelevant benefits.”

● Simon considered ramifications of lie only tohis client. Could others be hurt by the lie?

Simon’sresentation

● “[A] lawyer shall not: . . .make a false statement of

fact or law. . . or. . . fail to disclose a material fact...[emphasis added]” Rule 4.1.

● “[D]discarding . . . candor in favor of . . . zeal hasserious costs for the institution of the law.” 58 Case W. Res. Law Rev. 491, 510 (2008).

● Can Simon’s “balancing test” ever vitiate Rule 4.01?

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What do the Rules Say?Optional?

Conduct-eating crow -1

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“Al:I reviewed your Motion to Compel. You areabsolutely correct in every respect. The failure to serve these responses timely is my fault andnot Ms. J 's. You have not only made agood faith attempt to resolve this, you have been an absolute gentleman in all of mydealings with you. The fault is all mine.

Eating crow-2

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You are entitled to your reasonable attorney'sfees for this motion. Please advise me as tothose fees and I will send you my firm's checkin payment of those fees. The purpose of this e-mail message is to apologize and to stop thecreation of any more fees on this issue.

Eating crow-3

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I will see you at the pretrial conferencetomorrow. I hope to have the discoveryresponses to you then. If you have anyquestions or comments between now and then,please do not hesitate to contact me.

Thomas”

Eating crow-response-1

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•“Thomas - You know me well enough to know that I don't want attorneys fees and will not press for them. What the heck does it cost to change the caption on a motion? Just want the responses and I'll not make a big deal out of it tomorrow.

Eating crow-response-2

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• The practice of law is hard enough without our being assholes about it. You and I are old school and recognize that. All I need is your assurance of when responses will be forthcoming and I can deal with my client.

• Al”

Contract W

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The Legal Profession’sith The Public

● The public grants the profession “autonomy” for “peer review,” control ofmembership, setting of standards.

● In return, each member of the profession and the profession have solemn duties:1.To maintain high minimum standards for competence and ethical conduct,2. To discipline members who fail to meet those standards,3. To promote “core values and ideals of the profession,” and4.To restrain self-interest to some degree to serve the public purpose of the profession.

Neil Hamilton, Professionalism Clearly Defined, 18 No. 4 Prof. Law. 4,4-5 (2008).Melissa H. Weresh, I’ll Start Walking Your Way, You Start Walking Mine: Sociological PerspectivesOn Professional Identity Development And Influence Of Generational Differences, 61 S. C. Law Rev.337 (2009).See also, A White Paper On Increasing The Professionalism Of American Lawyers, 2014 ABA HouseOf Delegates, Resolution 105B

Professionalism

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105B

AMERICAN BAR ASSOCIATION

TORT TRIAL AND INSURANCE PRACTICE SECTION COMMISSION ON THE AMERICAN JURY PROJECT

REPORT TO THE HOUSE OF DELEGATES RESOLUTION

RESOLVED, That the American Bar Association commends the undertaking the

ofAmerican Civil publication of A

Trial Bar Roundtable for itsWhite Paper on Increasing the Professionalism

American Lawyers, and recommends that bar organizations andothers study the existing efforts described in the White Paper andotherwise available to enhance their own efforts to improveprofessionalism. (Passed 8-3-2014)

Developments in

2014 White Paper

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• Presented by the American Civil Trial Bar Roundtable

• Roundtable issued 2000 White Paper (amended 2006) on preserving the jury trial

• 2006 version observes:

• “* * * the lack of civility of lawyers toward oneanother * * * [has] reduced the public’s esteem oflawyers * * * *.”

• 2014 White Paper lists seven “Points of Agreement and Recommendations.”

1.

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“Current professionalism [education] initiativescould be more effective if they have a centralfocus on supporting rule of law principles, thecivil justice system, and the core values of theprofession: honesty, integrity, civility, andservice. * * * Also, a new emphasis on lawyerseducating their clients should be added toprofessionalism codes and creeds.”

2.

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“…Efforts to incorporate civility oaths shouldbe encouraged in those states which have notyet adopted them.”

3.

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New approaches, such as those undertaken bythe Florida and Utah supreme courts and theColorado Bar to establish professionalism boards to resolve professionalism complaintsthat fall outside the disciplinary rulesinformally, should be monitored for whateverlessons about improving professionalism maybe ascertained from their experiences.

4.

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“Mentoring can be most effective in impressingon new lawyers the importance of professionalism. Its increased use in the legalprofession should be strongly encouraged andsupported.”

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Serious Disciplinary Sanctions (Suspension,Disbarment) Imposed on South Carolina

Lawyers Admitted to Practice 5 Years or Less, Pre- and Post-Mentoring

TIME PERIOD TOTAL

SANCTIONS

AVERAGE/YEAR

1995 – 1999 146 29.2

2000 – 2004 143 28.6

2005 – 2009 47 9.4

2010 – 2014 18 3.6

2012 – 2014 (2 years,

9 months)

3 1.1

South Carolina Mentoring Time Line

● First Pilot Program: 2006 (last names A – F)

● Second Pilot Program: March, 2009 –January 1, 2011

●Permanent Program: April, 2012

Sanctions in First Pilot Program Participants

● Last Name A – F (all mentored): NoSanctions

● Last Name G – Z (no formal mentoring): 5Sanctions

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5.

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“Supreme court professionalism commissionshave been the most active organizations in theprofession in dealing with professionalism bybringing together all stakeholders. They operate in only about 25% of the states. Their creation inevery state should be encouraged.”

6.

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More comprehensive gathering of data onprofessionalism and the effectiveness of variousinitiatives should be encouraged. “As a part of this process, the Civil Trial Bar Roundtablesupports the development of a ‘professionalismdirectory’ for each state. This directory would be a qualitative state-by-state measure of thebreadth of each state’s professionalism efforts.”

7.

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“The Civil Trial Bar Roundtable, through local groups of its national organizations, encourages active involvement with as many law schools aspossible…

…They could benefit from the activeparticipation of Roundtable organizations andtheir members in increasing the professionalismand skills of law students.”

DEEDS, NOT WORDS

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“We can be excellent without being arrogant,

Successful without being boastful,

Tenacious without being contentious,

Self-critical without being defensive.

[A]t the end of the race there is a prize called reputation and . . . Our reputation is based on deeds, not words.”

Curry, Judge Richard L., Lawyers of Conscience Enforce the Unenforceable. Illinois Bar Journal 75 (1986): 120-121.

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