By Peter R. Bornstein, a sole practitioner who has taught at NITA for over twenty years.
Among lawyers active in bar associations, teaching at NITA, or concerned with legal ethics, the words ‘professional’ and ‘professionalism’ have come into vogue. It is said that the rules of ethics as promulgated in the Code of Professional Responsibility, are binding rules for lawyers, and are enforced with severe penalties for their breach. These set a floor for lawyer behavior, but professionalism is different from ethics. It is aspirational, inspirational, and elusive. What does the word mean, and what is really said when a lawyer is called ‘unprofessional’?
In today’s society we have professional football players, professional police and fire departments, and professional hairdressers and cosmetologists. Most states license plumbers, chiropractors, social workers, barbers, and electricians. Does that mean that law as a profession is like financial planning, tennis, and nursing? Of course, that’s not what we mean when we apply the term to ourselves—or is it exactly what we mean? Is being a lawyer and practicing law only a regulated economic endeavor, a business not much different than being an accountant or stockbroker? The answer is that it is different—very different.
It is different because the law comes to society from ancient times. It is different because the law is a learned profession, not a regulated business or paid occupation. Historically there were four learned professional fields: the priesthood, the medical field, the military, and the law. Each required a long and difficult period of study before admission and further study after admission. Each limited those who were admitted by virtue of their competence and character. Each had a mechanism for policing bad apples like a court martial or defrocking. And each had an ethos, a mission, and a purpose higher and more noble, like “we do not lie, steal, or cheat, nor tolerate those who do,” or “do no harm,” or “equal justice under the law.” The ethos and mission of the profession is to serve the whole of society.
Lawyers who belong to a profession are keepers of The Rule of Law and believe that they ought to have a just society—one governed by laws, not men. Judge Russell Carparelli of the Colorado Court of Appeals has given the matter considerable thought. He has developed a curriculum for teaching certain skills to lawyers and would-be lawyers. He has developed an acronym to define the term: SECRET. The acronym works as follows:
Service to clients, profession, community
Excellence in knowledge, skill, judgment
Commitment to preserving the Rule of Law
Respect & civility in all interactions
Ethical in all dealings
Trustworthy in all words & deeds
Judge Carparelli has elaborated on his acronym by adding that lawyers as a group profess that everyone is entitled to enjoy the rights and benefits conferred on them under the law and to have the law applied fairly and impartially, and lawyers profess to use their knowledge, skills and understanding of the law to preserve equality, fairness, and the integrity of our legal system. He concludes by defining professionalism as the commitment lawyers make to these principles through conduct which demonstrates that commitment.
The reason lawyers are not like hairdressers or football players is because of their commitment to higher principles; and those who choose not to be committed to these principals are lawyers who are unprofessional.