Aspiring to Professionalism
Professionalism is a vital and ongoing concern of the legal profession and the specific focus of MSBAís Professionalism Committee. Committee Chair Tom Schumacher recently brought together representatives from Minnesotaís trial and appellate courts to talk about professionalism and its place in the practice and aspirations of Minnesotaís bench and bar. The four panelists, Justice Paul Anderson from the Supreme Court, Judge Bruce Willis from the Court of Appeals, Judge John Hoffman from Anoka County, and Judge Francis Connolly from Hennepin County, all have long experience as lawyers and judges in Minnesota and have demonstrated their interest in this topic through service on the MSBA Professionalism Committee. Chairman Schumacher moderated the discussion.
Q: Why should Minnesota lawyers and judges be concerned about professionalism?
Justice Anderson: Itís the most important thing. It defines who we are as lawyers and as judges. We profess to the public that we are bound by a higher standard, we are bound by a code of ethics, and that when we serve the public this is the standard or template that we will abide by. So it is the core of who we are.
Judge Willis: I think professionalism affects how well our system works. It certainly goes to the publicís perception of what we do and their confidence in the legal system. I think thereby it ultimately affects our ability to self-regulate.
Judge Hoffman: I concur completely. On a practical level, seeing the number of people I see on a daily basis, I think that it has a positive impact on how my court room runs if we adhere to these principles.
Judge Connolly: I also agree, and to quote Abraham Lincoln, we always should strive to appeal to the "better angels of our nature." By setting and recognizing the highest standards, we ensure that both the practice and the quality of justice in our state will be so much the better.
Q: Judge Willis, you talked about "self regulation." Can you describe a little bit more about what that means to you, and how you judges see your personal responsibility with respect to this component of professionalism?
Judge Willis: As we all know, we currently do self-regulate. I think all members of our profession have a stake in maintaining that, because if we donít do it, then it will be done for us by people who donít understand the legal profession as well as we do.
Justice Anderson: Let me weigh in here. This really deals with what you see as your own personal responsibilities to self-regulation, and I want to focus here on judges in particular. If we are not performing in a civil manner and adhering to the highest professional standards, then I donít think we have the right to or can expect that lawyers do more than the same.
Judge Willis: I agree with Paulís comment. I served for eight years on the Board on Judicial Standards and frankly, most of the complaints we got about judicial conduct were things that are covered by the Professionalism Aspirations rather than the Code of Judicial Conduct. Those complaints would have been minimized if judges had observed the Professionalism Aspirations as they apply to judges.
Judge Connolly: I also agree. I think Paul said it best. The judge sets the tone, and you have to lead by example. Particularly at the trial court level, we are the people who see the lawyers and the pro se litigants every day. You really have to be courteous and civil and respectful. I think if the judge does all those things, then people will respond in kind and you will have a much better hearing and a better sense of fairness for all.
Judge Hoffman: I certainly agree with what was just said, and I think that at least a trial court judge does have to set the tone. We deal with a vast number of people every day, some pro se, some represented by attorneys, and some with attorneys on one side and not the other. I think it just helps the management of the courtroom when people are civil to each other and I certainly try to do that on my own behalf.
Q: Judge Willis, you mentioned the Professional Aspirations and also the Board of Judicial Standards. Can you say more about what the Aspirations are and comment on your perceptions of the difference between the Rules of Professional Conduct and the expectations of a professional in our legal community?
Judge Willis: Sure, Iíll take a shot at that. Both the Rules of Professional Conduct and the Code of Judicial Conduct establish floors for conduct. Violations of the Rules or the Code can result in sanctions, up to and including denial of the right to practice or to sit as a judge. But I think that the Professionalism Aspirations go beyond that. In the late 1990s the Professionalism Committee was charged with the responsibility of assessing and responding to a perceived increase in uncivil behavior in the profession. We concluded that it was worth the effort to attempt to put together a code of conduct that we could aspire to, not as the basis for sanctions, but more in the nature perhaps of "golden rules" for the practice of law and for judging.
Justice Anderson: I agree very much with what Judge Willis said. Former Chief Justice Robert Benham of the Georgia Supreme Court captured this thought in the sentence, "Ethics is that which is required and professionalism is that which is expected." When you look to these Aspirations, that is really what is expected of those who are in the profession. As Judge Willis says, ethics is the baseline and to make the system work there has to be more, and that is what is expected.
Judge Connolly: I think professionalism just means that you are striving to always do your best and set an example for others. The highest compliment an attorney can receive from a judge is that "it was a pleasure to have you come before me and I look forward to your appearance again"; I think that is kind of an aspiration rather than a floor.
Judge Hoffman: I agree. That type of comment and that type of example set the stage for all other litigants, and having such positive statements reflected in the record is an excellent way to model the behavior we want to see by all in our courtrooms.
Q: Judge Connolly, how do you use the Professional Aspirations to assist you with issues you have as a trial court judge?
Judge Connolly: Well, from a practical standpoint, I try to send the Aspirations out with every scheduling order that I issue to demonstrate to the attorneys or the pro se parties that I do take this seriously and this is the conduct that I would hope to see. On a personal level, and following up on what John said, if I think the attorneys at trial have really done a good job of being civil, courteous and efficient, then in front of the jury, prior to the instructions, I will simply thank the attorneys for the manner in which they have conducted themselves and tell the jury that I have appreciated their work and that the trial has gone smoothly. I think that helps. On the flip side, if I donít think anyone has been doing a good job, then I just remain silent.
Justice Anderson: Having the opportunity to speak to lawyers on a number of occasions, I will frequently include in my remarks what is good appellate advocacy and what is bad appellate advocacy. I will give examples, without identifying the lawyers, but I will describe behavior that, when we see it in the court, we notice, because it is much less than what is expected and it surely doesnít help with the advocacy of the clientís interest.
Judge Willis: Just to follow up on that, we from time to time see briefs that contain ad hominem arguments that really donít advance the clientís cause and donít address the law or the case that is before us, but merely take cheap shots at opposing counsel. And there have been panels on which I have sat when that point has been made to counsel at oral argument.
Judge Hoffman: I, like Judge Connolly, do send out the Aspirations with my scheduling orders in civil cases. I donít normally do it in criminal cases; I think that has to do more with how the Rules of Criminal Procedure operate and the fact that formal scheduling orders are not issued. In the court room, I have made people apologize to public defenders when they have been rude and discourteous, and Iíve done the same to lawyers who have been rude to the other lawyers. That is a very unusual occurrence but it has happened.
Q: What should ordinary lawyers do when they see behavior that they are concerned about, that they believe is unprofessional? How and when should they raise that to the bench?
Judge Connolly: If it is in a trial then I think the attorney should say, "Your Honor, I think that is uncalled for," explain what the behavior is, and expect the judge to do something. If it is in a deposition or involves a scheduling problem, I have seen lawyers write letters. I donít know if that is the most effective practice because sometimes, and John can weigh in on this, we judges donít like to get letters from lawyers generally. First of all, unless they are copied to the other side, they are ex parte communications. Second, I think it also invites the other side to write a letter to complain and it sort of goes on and on. Rather than discouraging unprofessional behavior, it actually just encourages it. Iíll move it on to John to see what he does.
Judge Hoffman: I do not encourage the writing of letters to the bench. It puts the bench in a very precarious position. I think about ex parte communication, especially involving pro se litigants and lawyers writing directly to the court. It doesnít happen often, but it does happen. I have returned what were kind of "shots at the other side of the table," directed to me. I simply returned them and said they are not part of the file; they are ex parte communications. I have kind of a standard letter for that, but it requires a lot of extra administrative effort to keep track of that and be consistent and there is no good way to handle it. When those types of actions occur during trials I usually talk to the attorneys at every break and after the jury leaves the court room, and I ask them to put anything on the record that they want.
Justice Anderson: My best advice, first of all, is when you see conduct that falls below the expected level, the worst thing you could do is respond in kind by exhibiting the same behavior in the courtroom or using such language in the brief. I sometimes say to lawyers that when they get frustrated with other lawyers or even with the court, "You can think it, but you better not say it," because if they do it makes the lawyer look foolish and detracts from the arguments being presented. You should really respond on a professional level and if there is something wrong, donít respond in kind, but point to where you think conduct falls below the expectations.
Q: How do you think the Minnesota bar is doing in terms of professionalism?
Justice Anderson: Iíll give my perspective. Compared to what? Compared to other states, I think that Minnesota is doing extremely well. We have a very civil and generally well-behaved bar. Compared to where we were some years in the past, I believe there has been some denigration of the professional standards and you see a bit more of the Rambo tactics working their way into the practice. That is why what we are talking about today and what we are trying to convey is so important.
Q: Do you believe there is a connection between public confidence in the fairness of our judicial system and the publicís perception of the professionalism of the bench and bar?
Judge Willis: First of all, a lack of professionalism is an impediment to the system working the way it should work. If lawyers attempt to fight a war of attrition with discovery abuses and the like, that keeps the system from working well and it also goes to the public perception of what it is that lawyers do. And that, in turn, can affect the publicís confidence in the legal system.
Q: Looking at it from a different standpoint, is some of this coming from and being driven by clients who expect itís to their advantage to have an attorney who will act in an uncivil manner as a tactic?
Justice Anderson: I have been away from the private practice for awhile, but I will say absolutely, I have had clients come to my office and say they want the meanest junk yard dog for an attorney and Iíve sent those clients down the street. Oftentimes the attorney they think of who has that type of reputation is going to give them less than the quality service they deserve, but there is a certain attitude from some clients that they want that type of attorney.
Judge Connolly: I agree. I think that is the greatest challenge. The pressure and expectation of clients to win at any price, particularly when huge sums of money are at stake, can drive unprofessional behavior. I think thatís when the bench has to step in and remind attorneys that sharp practices will not be tolerated and that in a last resort will actually be sanctioned.
Judge Hoffman: It is not inconsistent to believe that attorneys who practice their craft well and are professional, courteous, and kind have the best results. At least the attorneys that I think of who practice in that fashion are, in my mind, the attorneys that do receive the better results. So I do not think that those concepts are inconsistent, quite frankly.
Judge Willis: My experience was identical with Justice Andersonís. I had a partner who had a sign on the shelf in his office that just said, "A lawyerís stock and trade is his reputation and no case is worth risking that." It may be hard to do from time to time, but I did as Paul did and told people that if all they were looking for was somebody who was going to be a ranter and a shouter, they would have to find somebody else. When we were drafting the Professionalism Aspirations, there was discussion about this phenomenon and about the fact that the Aspirations might, in some instances at least, be something that a lawyer could point to. When a client asked for a particular type of behavior, the lawyer could say, "Look, this is going to hurt our cause more than help it and here is why. It would violate the Professionalism Aspirations, which are something that the judges take seriously."
Q: Are there additional ways that you think lawyers or judges can protect and promote the ideals set out in those Aspirations?
Judge Connolly: For
judges, anyway, it is once again leading by example. I think it is most
gratifying if you write a well-
Judge Willis: Something else comes to mind. There is a context in which I have personally used the Aspirations. As you all know, there is a particular provision relating to the duties of judges to each other, and this will be something that probably John and Frank will appreciate, but that particular provision says that judges will be courteous, respectful, and civil in opinions, ever mindful that a position articulated by another judge is the result of that judgeís earnest effort to interpret the law and the facts correctly. We in this court circulate all opinions in advance of filing them and there have been several occasions on which I have thought the draft opinions were a little harsh, unnecessarily harsh with regard to what happened at the trial court level. Sometimes the comments have been accepted, sometimes they have not been. But I think that overall the level of awareness of the application of the Professional Aspirations to our judges here has been raised over the last couple of years.
Justice Anderson: I just want to reiterate that, and there are some courts lately where the judges have gotten rather sharp with each other, and that really does not serve the end goal of having a professional bench and bar. I applaud Bruce and his colleagues for their effort to do that because it just ratchets up the expectations and they hold themselves to those standards.
Judge Connolly: I think it just goes back to the old saying that you can disagree without being disagreeable. I think our state particularly has a reputation for not having either appellate court judges taking shots at the trial court, or trial court judges taking shots at judges in another county.
Judge Willis: Or appellate courts.
Judge Connolly: Or appellate courts.
Judge Willis: Although there are exceptions to both rules.
Judge Connolly: Ö But which are only recognized rarely; I think we are pretty good. You can look at other states or circuits, and Iím not going to mention them, but there is some pretty serious name-calling all around. I canít believe that engenders public trust and confidence in the judiciary when the judiciary, in those states or circuits, canít even engender public trust or confidence in each other.
Judge Hoffman: I concur wholeheartedly with Judge Connolly and his comments about leadership in the courtroom. I think that is the primary way that those Professional Aspirations can be demonstrated on a daily basis. Trial court judges are sensitive about what is written about their cases in the appellate court. Generally, I have been completely pleased with how my decision making has been characterized by the appellate courts, but you know when you write an opinion your audience is a lot of people: itís the lawyers, the litigants, and in the case of the appellate courts, it is the trial court judges. I find that it is a very thoughtful process and respectful to all of the participants.
Q: Switching gears, what are your perspectives on public service and pro bono service as it relates to professionalism?
Justice Anderson: I think that both public service and pro bono service provide a certain point of reference, a certain grounding for lawyers in their practice of law and very often will provide the perspective that we need. We are indeed a profession and what that means is we profess to the public that we are there to serve and that means everybody. Oftentimes the perspective you get from the public and pro bono service sends you the clear message as to what it is all about and what it is we are doing.
Judge Hoffman: I applaud lawyers that do both public service and pro bono representation. I note with some concern more recent cutbacks in legal service programming where pro se litigants are coming into the courtroom indicating that they have applied for legal service help and they have been told that they donít qualify, are not eligible, or resources arenít available. I always am very appreciative of lawyers that help in these areas and I do think, unfortunately, it is going to become more and more necessary as we go forward with all these budget issues we seem to be facing. But I think it is a great reflection on our profession that lawyers take on pro bono and public service efforts on behalf of clients and legal issues.
Judge Connolly: I concur. I would just add that to aid those who are less fortunate makes this a profession and not a business.
Justice Anderson: To share another perspective, we work with a lot of boards and groups that serve the legal profession and serve the public. I have the occasion to be at programs, recognition ceremonies, where these people will leave after six or eight years of service, and almost invariably these people will say it has been one of the most rewarding experiences they have had. This is interesting in the context because there is generally no pay involved, and very little reimbursement even for mileage, but as professionals they say it is one of the most rewarding experiences they have.
Judge Willis: I think it goes again to the public perception of what lawyers are and what lawyers do. Being involved with activities that serve the public and pro bono activities can be nothing but a positive in the publicís eye.
Justice Anderson: If I were to give one word of advice to young lawyers coming out of law school about what it is to be a member of the "lawyering" profession, Iíd quote my predecessor on the Court, John Simonett, who really is the epitome of professionalism. Toward the end of his career as a justice, John gave a speech in which he made the following comment, "lawyering is a profession of civil governance and civility of manners is not a sign of weakness in an advocate, but a measure of true competence and effective representation." This concept is very important. Civility is not a sign of weakness, but a sign of your true competence and effective representation, so if lawyers believe that when they come to court they need to exercise what I characterize as Rambo tactics, it really sends a message that something about their competence is lacking.
Judge Willis: Just a couple of comments, Iím not certain itís a generational issue, but quite clearly the concern about declining standards of civility was something that came to the fore in the í90s, not only in Minnesota but also in other parts of the country. I think we may have some of the same things at work here that we see in other aspects of society. When I learned how to drive an automobile in the í50s, drivers treated each other a whole lot differently than they do now, and I think itís different in small towns than in the big city. I think people treat one another with less courtesy if they have the impression or idea they are not going to meet again, whereas in a small town, whether you are a lawyer or a driver of a car, you know youíll have future contact with these people, so you probably treat them differently. There are now something in the neighborhood of four times as many lawyers as there were in 1965 when I was sworn in. I think that makes a difference. I think the economics of the practice of law make a difference. I think that with the pressure on billable hours there are a whole lot of lawyers who are not taking the time to provide mentoring that in past generations they might have provided. So you have some young lawyers out there without really a sense of what is appropriate conduct, other than what they have seen on television programs.
Judge Connolly: To extend on that, I think Bruce is absolutely right. Simply because weíve got more cars today, weíre going to have more bad drivers. Simply because we have more lawyers today, we are generally going to have more bad lawyers than we used to. I donít think itís a generational thing so much as it is simply a quantitative thing. I think we are trying to turn that around by reminding people of the good old days when people used to stop at stop lights and let someone have the right of way.
Q: When it comes to professionalism, what is the most important message you want lawyers who appear before you to hear?
Justice Anderson: I would just repeat the quote that I had from John Simonett, "civility of manners and professional standards is not a sign of weakness in an advocate but a measure of true competence and effective representation," and if somebody thinks that civility is a sign of weakness, they really have it all wrong. It is just the opposite. Lack of civility reflects on their lack of competency and shows that they donít hold themselves to the highest standards.
Judge Willis: Simply, the message I would like to convey is that professionalism matters and it matters to judges, and lawyers should be aware of that.
Judge Connolly: I would just add that your reputation precedes you, and it is better to have a good one than a bad one.
Judge Hoffman: I also agree with Justice Anderson. I believe that Justice Simonettís words are very wise and well-taken and we can all learn from those words.