The Minnesota Supreme Court
recently adopted its "Professionalism Aspirations,"
in the form of standards, commitments, obligations, and resolutions.1 The Court's promulgation, the bar's more
general discussions of professionalism, and the efforts of the
Court and bar to implement professionalism are welcome and important.
However, the Professionalism Aspirations are framed too narrowly
to fit the large dimensions of our true professional mission.
More unfortunately, those of the broader professionalism discussions
that idealize the past are not faithful to the critical search
for truth, which is central to our profession.
Apiring to Civility
The Aspirations and professionalism discourse are inadequate
insofar as they: make minor virtues like civility central; do
not adequately address fundamental issues like how to live a
good life in the law and how truly to serve clients; and do not
recognize that lawyering necessarily involves paradox, the appearance
of impropriety, and misunderstanding by the public. In addition,
the professionalism literature often depicts the profession in
a state of decline without specifically and convincingly telling
us when and how the profession was once, on the whole,
Official professionalism aspirations should address that to
which we, as professionals, aspire. An aspiration is "a
strong desire to achieve something high or great." Indeed,
the Professionalism Aspirations aim high: "The following
standards reflect our commitment to professionalism. These standards
memorialize our obligations to each other, our clients and to
the people of the State of Minnesota." A leading commentator
goes even further: "The Professionalism Aspirations are
an enormous positive step affirming our commitment to the
highest professional ideals."2
Instead of raising our vision to the stars, however, the Aspirations
repeatedly tell us to refrain from being impolite: "We will
disagree without being disagreeable. We recognize that effective
representation does not require antagonistic or obnoxious behavior."
A lawyer should cultivate habits of civility, but surely a lawyer's
aspiration should be for something greater than refraining from
being obnoxious. A manifesto of professionalism that makes civility
its cardinal aspiration risks banality and, worse, confusion
over what it means to be a true professional.
Aspiring to Inoffensiveness
The Aspirations repeatedly stress civility, especially among
litigators. There are 36 "Lawyer to Lawyer" Aspirations,
23 "Lawyer and Judge" Aspirations, but only 8 "Lawyer
to Client" Aspirations, most of which repeat civility pledges,
e.g., "We will advise our clients, if necessary,
that they do not have a right to demand that we engage in abusive
or offensive conduct and we will not engage in such conduct."
The Aspirations embrace other values, particularly fidelity to
the administration of justice, but their overarching value is
civility. Other jurisdictions have more modestly, and accurately,
labeled similar documents, e.g., the "D.C. Bar Voluntary
Standards for Civility in Professional Conduct."
The Aspirations are useful, because too many lawyers need remedial
education by Miss Manners. However, even if, as Burke said, "manners
are morals," manners cannot comprise the lofty aspirations
of an ancient and honorable profession. As classical philosophy
recognized, temperance (of which civility is but one species)
is least among the cardinal virtues, after prudence, justice
and fortitude.3 For good lawyers, manners
are largely a byproduct, rather than a goal, of their aspirations.
Most lawyers aspire to live good lives in the law, but neither
goodness nor the challenge of integrating personal integrity
with a profession rife with ambiguities appears in the Aspirations.
There is no Aspiration to engage clients about the deep things
in life, which a wise counselor will discuss on the right occasion.
The estate planner, bond or real estate lawyer will wonder what
all the resolutions about litigation proprieties have to do with
Should we pledge always to avoid "offensive conduct"
or "to always endeavor to conduct ourselves in such a manner
as to avoid even the appearance of impropriety?" The Aspirations
do not wrestle with the ambiguity and tension inherent in zealous
advocacy. Aristotle's view of the virtuous man better suits the
litigator: "The man who is angry at the right things and
with the right people, and further, as he ought, when he ought,
and as long as he ought, is praised." Jack Nordby has gone
farther, arguing that a criminal defense attorney has "an
ethical duty to be a pariah."4 It
will appear improper when a lawyer defends a corporation whose
products may cause harm or when a lawyer argues a client's innocence,
even though the lawyer does not believe the client to be innocent.
Offense will be taken when a lawyer vigorously cross-examines
a vulnerable witness. True, gratuitous offensiveness has
no place in lawyering. However, the absence in the Aspirations
of anything like the "warm zeal" extolled by the 1908
ABA Canons of Professional Ethics creates doubt whether the Aspirations'
heart is in the right place.
BILL WERNZ is Ethics Partner
and a member of the trial department at Dorsey & Whitney.
From 1985 to 1992 he was Director of the Lawyers Professional
" too many lawyers
need remedial education by Miss Manners"
Idealizing the Past
A major theme of professionalism literature is that lawyering
has declined from a time when lawyers were mannerly gentlemen,
favorably distinguished from mere businessmen. Dean Haynsworth
reports, and concurs in, a "general agreement" in the
literature that "the decline in the level of professionalism
in recent years has been pervasive. It has occurred in every
form of practice and in all parts of the country."5 Materialism and abrasiveness may well be
on the rise, but before they are equated with a general professional
"decline," a few questions are in order, regarding
whether in past decades core professional values -- the balance
of professionalism and money, avoiding conflicts of interest,
self-regulation, care for clients and adverse parties, service
to society's outsiders, and diversity -- were truly on a plane
higher than today's.
Taking a Broader View
Were lawyers once less disposed to pad their pocketbooks? Let
us not forget that through most of the 20th century the profession
used its ethics system and professional status to enforce and
justify price-fixing. From 1908 to 1970 ABA Canon of Professional
Ethics 12 stated, "In fixing fees, lawyers should avoid
charges which overestimate their advice and services, as well
as those which undervalue them." In re Greathouse,
248 N.W. 735, 740 (Minn. 1933) condemned solicitation of clients
because "Such conduct [is unseemly and] also leads to underbidding."
In 1961 an MSBA Practice of Law Committee opined, "It is
unethical for a lawyer deliberately, habitually and systematically
to perform or offer to perform legal services for less than the
amount set forth in a recommended [sic] minimum fee schedule
. . . ." The profession stopped using ethics opinions to
enforce minimum fee schedules only after Goldfarb v. Virginia
State Bar, 421 U.S. 773, 783 (1975) determined that such
practices were illegal and "unusually damaging" to
the public. The bar's argument in Goldfarb that a "learned
profession" ought to be able to fix prices was nothing but
self-interest hiding in Sunday clothes.6
Were lawyers once more concerned to avoid conflicts of interest?
Consider In Re Estate of Wunsch, 225 N.W. 109 (Minn. 1929).
A will contestant appealed because at a bench trial the presiding
judge's son represented the successful litigant. The Court dismissed
the alleged conflict out of hand: "The fact that a son of
the judge appeared for the respondents furnished no legal ground
for . . . the requested change of venue, or for the calling for
another judge to try the case . . .." Such conduct was not
forbidden until the Code of Judicial Conduct was adopted in Minnesota
in 1974. As for concern with conflicts of interest generally,
until about 20 years ago there was no reported case of disqualification
or of public discipline for conflicts between client representations.
Until 1985 there was no ethics rule addressed to former client
conflicts or to a lawyer suing a client. Today's conflicts rules
and practices are far stricter, and more strictly enforced, than
those of any previous time.
One hallmark of a healthy profession is self-regulation -- would
anyone maintain that professionalism has declined in this regard?
Until 1955, when Minnesota adopted the 1908 ABA Canons, Minnesota
lawyers practiced without formal ethics rules. Minnesota established
the Office of Lawyers Professional Responsibility only after
the ABA Clark Report in 1970 found "a scandalous
situation that requires the immediate attention of the profession.
With few exceptions, the prevailing attitude of lawyers toward
disciplinary enforcement ranges from apathy to outright hostility.
Disciplinary action is practically nonexistent in many jurisdictions."
Similarly, after the Watergate convictions and disbarments of
numerous prominent lawyers in the mid-1970s, law schools began
to take ethics education seriously. More recently, we have recognized
that professionalism requires lawyer funding of client security
(1987) and legal aid services (1997).
Did the profession formerly care more about clients and about
adverse parties? Consider Spaulding v. Zimmerman, 116
N.W.2d 704 (Minn. 1962). In this famous legal ethics case, defense
counsel for two drivers knew -- but the plaintiff/passenger,
his doctor and his attorney did not -- that plaintiff suffered
a life-threatening (but remediable) aneurysm in an accident,
which was the subject of the suit. Not only did defense counsel
not tell plaintiff about his injury, they apparently did not
consult their own clients, thereby unilaterally choosing that
defendants' alleged negligence might result in a needless death.
Defense counsel's failure to consult with clients is most plausibly
ascribed to the professional paternalism of the era.7
Today's lawyers might well divide on whether to tell the plaintiff
about his endangerment if defendants would not authorize disclosure,
but few would decide without consulting their clients.
Speaking of clients, would anyone contend that indigent criminal
defendants and legal aid clients were apt to receive better representation
in earlier decades? Despite considerable efforts of the private
bar, until the 1970s there was limited systematic legal aid available
for the poor. What about the client who wanted a file returned
but, until statutory repeal in 1976, was faced with a lawyer's
Turning to lawyers, yesterday's gentlemen's club was no doubt
more polite, but was it also not more exclusive? Would most lawyers
who are female, minority or Jewish rather practice in some earlier
era? Presumably any golden age began after 1877, when the Minnesota
Legislature removed the "any male person" requirement
from the bar admission statute. There were no disciplines for
sexual harassment or religious or racial slurs until the late
1980's.8 More recently, however, Minnesota
has become a national leader in professional protection of women
Does the "general agreement" about our profession's
purported "decline" take account of our manifold progress?
Our public defender, legal aid, private pro bono, client
security and attorney professional responsibility systems are
truly outstanding. We export our professional dedication in death
penalty cases in Texas and Louisiana and, through Minnesota Advocates,
to other countries. Our law schools compete for better models
for training lawyers in careers of service. Our membership is
far more diverse than ever. We robustly debate how to improve
the profession. There are many lawyers practicing today, whose
deeds and biographies would tell us all we need to know about
being true professionals. Watching them closely and telling other
lawyers about them will be our best teacher. The MSBA's excellent
history, For the Record: 150 Years of Law & Lawyers in
Minnesota, (1999), tells us far more about the profession,
warts, achievements and all, than literature that mythologizes
Supporters of professionalism and of the Professionalism Aspirations
should be applauded for trying to counteract the harshness that
makes service of clients and life in the law more difficult.
However, the Professionalism Aspirations and professionalism
discussions generally could be enriched by taking a broader view
-- of our true aspirations as professionals and as human beings
called to service in the law; and of the accomplishments and
shortcomings of our professional history, past and present. To
paraphrase the Oxford English Dictionary, "If our sense
of mystery is feeble, our aspirational power will be almost nil."
Discussion that makes too much of manners, and that idealizes
the past, cannot substitute for discourse about our real calling
and our true history.
1. The Aspirations, adopted January 22, 2001, by the Court
on the MSBA's petition, are found in the October 2000 Bench
& Bar and at www.mn.bar.org.
Most of the Aspirations are oddly labeled "Commentary,"
but are in a form that suggests pledging, e.g., "We
will not quarrel over matters of form or style, but concentrate
on matters of substance."
2. Neil Hamilton, "Attorneys Should Read Professionalism
Aspirations," Minnesota Lawyer (March 12, 2001) at
4, emphasis added.
3. Thomas Aquinas, The Summa Theologica, Q. 66, Art.
4. Aristotle, Nicomachean Ethics, Bk. IV, Ch. 5. Jack
Nordby, "The Lawyer's Ethical Duty to Be a Pariah,"
The Hennepin Lawyer (March-April 1989).
5. Harry J. Haynsworth, "Addressing Professionalism,"
Bench & Bar (August 1997). The reference to vague
time periods, such as "recent years" is common in the
professionalism literature. If professionalism writers imposed
on themselves the discipline of identifying a specific decade
that preceded the alleged "decline," we could survey
that era to determine whether the profession really was then
in better shape.
6. The bar distinguished itself from mere businesspeople by
using its professional status to take the lower road. The Virginia
bar's minimum fee was 1 percent of home sales price for a title
examination. It may be noted that the average Minnesota lawyer
in 1970 earned $23,439, the equivalent of $105,775 today. For
the Record: 150 Years of Law & Lawyers in Minnesota, (MSBA
1999), at 72.
7.Cramton and Knowles, "Professional Secrecy and its
Exceptions: Spaulding v. Zimmerman Revisited," 83
Minn. L. Rev. 63 (Nov. 1998). The possibility that defense
counsel's silence might result in their client becoming the negligent
killer of a friend or coworker -- a perversion of the duty to
seek the client's best interests -- was not discussed by the
8. In re Peters, 428 N.W.2d 375 (1988); In re Williams,
414 N.W.2d 394 (Minn. 1987); In re Plunkett, 432 N.W.2d
454 (Minn. 1988).
9. The regular columns of Professor Hamilton and of the Lawyers
Board staff in Minnesota Lawyer, and of Board Director
Edward Cleary and MSBA president Kent Gernander in Bench
& Bar offer considerations of professional responsibility
issues which are excellent in quality and unprecedented in breadth.