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April 2001


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Lawyer at Large headline

Professionalism Aspirations:
Encouraging Professionalism

by Julius W. Gernes


"zealous advocacy does not require lawyers to lessen their personal standards of behavior."


The Minnesota State Bar Association (MSBA) and its Professionalism Committee have worked hard to promote professionalism with lawyers and judges over the past three years. One of the initial goals of the MSBA's Professionalism Committee was to formulate a set of guidelines to be used as an educational tool within our legal system. This initiative came to fruition when the Minnesota Supreme Court by order dated January 11, 2001 approved and endorsed the Professionalism Aspirations as aspirational standards of conduct for the bench and bar of Minnesota. These Aspirations have been published in the Minnesota Rules of Court, pages 1033-1036 (2001) and are also available on the MSBA Web site at www.mnbar.org.

These aspirational guidelines are intended to encourage professionalism in our legal system. Legal ethics can be defined as the mandated minimum level of conduct required by the Minnesota Rules of Professional Conduct. The concept of professionalism embodied in the Professionalism Aspirations encourages lawyers and judges to interact on a level above and beyond the bare minimum. The Aspirations are designed to promote a commitment by all lawyers to the highest ideals of our profession. They can be used to educate our clients and other lawyers on the standard of conduct that is expected by the court and lawyers practicing in this community.

The Aspirations do not seek to eliminate arguably offensive behavior. Sometimes zealous advocacy will offend some people. On the other hand, zealous advocacy does not require lawyers to lessen their personal standards of behavior.

The topic of professionalism in the practice of law has been one of significant concern both locally and nationally over the past couple of years. No one is under the illusion that in the "good old days," lawyers were always professional. Nevertheless, an MSBA task force concluded in 1997 that "there has been a decline in professionalism among lawyers in Minnesota and this decline is a serious professional concern." The ongoing decline in professionalism and the need for guidance on the topic were recognized by an extensive and well-publicized study conducted by the bench and bar of the 7th Federal Judicial Circuit.1 There has been a well-documented overall dissatisfaction with the practice of law by attorneys and the clients we represent. The problems that have caused this decline are complex and some would argue a reflection of a litigation-oriented society run amok. The increase in the number of attorneys competing for clients (who demand a win-at-all-cost mentality) is potentially at odds with anything resembling professionalism. As attorneys continue to push the outer envelope of what they can get away with during representation of a client without committing some type of ethical violation, the courts grapple with how to respond to such unprofessional behavior. The Professionalism Aspirations can be used as an effective tool for the courts as unprofessional behavior comes to the attention of judges in litigation-related matters.

JULIUS W. GERNES is a partner in the firm of Spence, Ricke, Sweeney & Gernes in St. Paul and has served for seven years as chair of the MDLA Professionalism Committee. For the past three years he has cochaired the MSBA Professionalism Committee.


APPLYING THE ASPIRATIONS

These Aspirations were used as a part of a professionalism program that was presented in December of 1999 at Minnesota's Annual Conference of Judges. More recently, in November, 2000, a number of Ramsey County judges participated in a second professionalism program designed to educate and facilitate discussion on the topic. A significant message that was delivered to the judges in both of these sessions was that the majority of lawyers want courts to feel empowered to respond to breaches of professionalism and to use these Aspirations for guidance as issues arise in their courtrooms. This sharing of common experience and the means to address professionalism problems resulted in a significant exchange of useful information. The participants in these educational settings received copies of the Professionalism Aspirations and were encouraged to use them in their courtrooms. A number of district court judges are now including specific language in their standard scheduling orders that reference the expectation that lawyers will adhere to the Professionalism Aspirations in handling a given case.

Administrative law and workers compensation judges have been working with the Professionalism Aspirations for over a year. Chief Administrative Law Judge Ken Nickolai committed the Office of Administrative Hearings to their use and arranged for training of the judges. As judges have become more comfortable with the Aspirations, they are being used with increasing frequency. For example, at the beginning of each hearing, some judges now regularly remind counsel that the Aspirations apply to administrative hearings. Other judges only invoke the Aspirations if the actions of one or more of the parties or counsel need to be restrained. Each judge has a personal copy of the Aspirations and a copy is kept on the bench in each hearing room for quick reference. Chief Judge Nickolai recently used them to help restrain the conduct of attorneys in a controversial hearing. According to Nickolai, "I was confronted with attorneys and nonattorneys who were resorting to name calling in an effort to demean their opponents. When the incident occurred, I stopped the proceeding and referred to the duties of judges found in the Professionalism Aspirations to 'maintain control of the proceedings, recognizing that we have both the obligation and the authority to ensure that all proceedings are conducted in a civil manner.' Flare-ups occurred several times during the two week hearing, but each time, both the attorneys and nonattorney participants responded well when reminded of the Aspirations." Judge Nickolai continues to promote the use of the Aspirations by all lawyers and judges in their cases.

Neil Hamilton, a trustee's professor at William Mitchell College of Law, has incorporated the Professionalism Aspirations into the law school curriculum for his Professional Responsibility and Ethics Seminar. In his 12 years teaching professional responsibility, he has found that law students are constantly searching for what they can do to improve the profession. Professor Hamilton noted, "The Professionalism Aspirations respond very well to providing guidance to the students as they seek ways to make a positive difference in both law school and the practice of law." Professor Hamilton has also been encouraging the use of the Professionalism Aspirations in the skills and clinical courses as an excellent tool to educate students on how to avoid unprofessional behavior in these practical settings.2

In February, 2001, the Professionalism Aspirations were used by the Rider, Bennett, Egan and Arundel law firm in developing hypotheticals on the topic of ethics and professionalism as a part of a two-day interactive training seminar. Prof. John Sonsteng served as a moderator during this presentation which involved all of the lawyers in the firm. Mike Unger, who chairs the firm's conflicts, ethics and loss prevention committee, characterized the training as "an excellent experience with enthusiastic feedback from all of the participants." The MSBA Professionalism Committee is currently working on preparing educational materials on the topic of professionalism that could be distributed to law firms in the state and then used for training on issues of ethics and professionalism that arise within the practice of law. The MSBA also will provide copies of the Professionalism Aspirations to all new admittees to the practice of law in the state of Minnesota.

CHANGING THE CULTURE

The Professionalism Aspirations are an excellent starting point for promoting professionalism. However, simply being published in a document and endorsed by the practicing bar and the courts will not change the ongoing culture within the law schools, law firms, and the court system. To effectively change these cultures, we all need to breathe life into the concept of professionalism as expressed through these Aspirations by proactively using them in our ongoing interaction with other lawyers. The chances of successfully changing the cultural and systemic problems within the practice of law today will greatly increase with the judiciary, practicing bar, and public all working together to promote enhancing professionalism through the use of the Professionalism Aspirations.

Recent comments by Harold G. Clark, former chief justice of the Georgia Supreme Court and a leader in promoting professionalism on a national level, provides an excellent summation of how important it is that we as lawyers address professionalism on a proactive basis:

The attention given to professionalism can cause lawyers and judges to give additional attention to their reason for being. After all, there is no constitutional assurance of an exclusive franchise to practice law. This franchise will exist only so long as the people see advantage to its existence. All this means that lawyers, and judges for that matter, must justify their existence in the eyes of the people. We have courts and we have lawyers only because people have problems. The function of courts and lawyers is to resolve those problems, and teaching of the concept of professionalism should impress upon all of the members of the legal and judicial community the fact that they can continue to exist only when they serve as problem solvers."3

I encourage all attorneys to review the Professionalism Aspirations and to consider how they might be used within your law firms, courtrooms, and law schools to enhance the promotion of professionalism. We must apply these Aspirations in our daily interactions with the continuing goal of promoting the highest ideals of our profession.

"we all need to breathe life into the concept of professionalism as expressed through these Aspirations"

Professionalism Committee

Members of the MSBA Professionalism Committee that draftedthe Professionalism Aspirations are:

-Leslie M. Altman, Rider, Bennett Egan & Arundel
-Shane Baker, public lawyer, Spicer
-Prof. Muriel Bebeau, University of MN School of Dentistry
-Hon. George A. Beck, Office of Administrative Hearings
-Edward J. Cleary, Office of Lawyers Professional Responsibility
-Hon. Janice M. Culnane, Office of Administrative Hearings
-Wood R. Foster Jr., Siegel, Brill, Greupner, Duffy & Foster
-Hon. Donovan W. Frank, United States District Court
-Julius W. Gernes (cochair), Spence, Ricke, Sweeney & Gernes
-Prof. Neil W. Hamilton, William Mitchell College of Law
-Hon. Thomas D. Hayes, 10th Judicial District, Anoka
-Hon. James W. Hoolihan, 7th Judicial District, Foley
-Douglas H. Johnson, Washington County Attorney's Office
-Hon. Mary Louise Klas (ret.), 2nd Judicial District
-Prof. Maury S. Landsman, University of MN Law School
-Prof. William E. Martin, Hamline University School of Law
-Hon. Susan Rester Miles, 10th Judicial District, Stillwater
-Jessie Ree Nicholson (cochair), Southern MN Regional Legal Services
-John Schulz, Collins, Buckley, Sauntry & Haugh
-Thomas J. Schumacher, General Counsel, University of MN
-Daniel L. Scott, Larson King <H>llp<P>
-Thomas C. Vasaly, MN Attorney General's Office
-Terrance Votel, Votel, Anderson & MacEachron
-Hon. Bruce D. Willis, MN Court of Appeals.

NOTES

1. See Final Report of the Committee on Civility of the 7th Federal Judicial Circuit, 143 F.R.D. 441, 448 (1992).
2. Prof. Hamilton also recently presented a historical context for these Professional Aspirations and encouraged all attorneys to read these guidelines and to consider ways to incorporate their usage into law firms and public/private law departments. See "Attorneys should read Professionalism Aspirations," Minnesota Lawyer, p. 4 (March 12, 2001).
3 Clark, Harold G., "The Judiciary as the Guardian of Professionalism." Teaching and Learning Professionalism in the Practice of Law (symposium proceeding), (1997), at 71.