The practice of law has a rich heritage. Lawyers throughout history have contributed to the development of the rule of law, and to our present day system of justice. Representation of a client whether in court, the board room, or in the drafting of documents is an awesome responsibility.
Historically, lawyers have been recognized with respect and gratitude for their many contributions to their clients and to a free society. Many have risked their careers and lives on behalf of their clients.
That is not to say that throughout the centuries there have not be criticisms of the Bar. It is fairly debatable, for example, whether Shakespeare in “Henry VI” — “The first thing we do is kill all the Lawyers” — expresses criticism of lawyers or a compliment. I side with those who consider it a compliment, as lawyers are the palladium of freedom. In the context of the play, there was a revolt against the government. Killing all the lawyers was to break down the walls of society.
Throughout the 19th and much of the 20th centuries, many recognized the practice of law as a profession — advertising was not permitted. Today, the private practice of law is often focused intensely on business profit, instigating many to now use the term “legal industry.” However, the best of the profession practice professionalism in concert with fulfilling business objectives.
In Maryland, professionalism is the doctrinal underpinning of the practice of law. This is clear by the conduct of the best lawyers, and the written guidelines advocating professionalism contained in the Maryland Rules of Procedure.
Following Chapter 300 of “Maryland Attorneys’ Rules of Professional Conduct,” which focus on ethical rules — is Appendix 19-B, “Ideals of Professionalism,’ where professionalism is defined as: “…the combination of the core values of personal integrity, competency, civility, independence, and public service that distinguish attorneys as the caretakers of the rule of law.”
Though these “rules” are aspirational, let them inspire your conduct both in and outside the courtroom.
I have included below just a few of the aspirations I find particularly compelling, followed by some of my observations.
Put fidelity to clients before self-interest. This includes integrity and fairness in billing; keeping confidences by not revealing client discussions with others; and taking care to go the “extra mile,” when appropriate. Also, avoid conflicts of interest.
Preserve the dignity and integrity of the profession. Cooperate with opposing counsel to accomplish mutual goals. For example, if you are engaged in litigation and concerned that the discovery rules in state court regarding experts are much broader than comparable federal rules—i.e., draft reports and many conversations with experts are discoverable under the state rules but not so under federal rules—why not enter into a side bar agreement with opposing counsel to operate under the federal rules regarding expert discovery?
Perhaps opposing counsel filed an amended complaint that you deem defective, e.g., a flaw exists that would result in a dismissal but with leave to amend. Why not call counsel and suggest an amended complaint, unless that would be against the interest of your client?
Regarding integrity, consider that it is reported that one lawyer stated to another while seated at counsel table: “This judge does not know his head from his … about dispute resolution agreements.” Soon the judge appeared, took his seat, and stated: “Good morning, counsel. Are we ready to proceed? And by the way, I know more about dispute resolution clauses than you think.” The judge’s practice was to record conversations in the courtroom.
Also, avoid ad hominem attacks on opposing counsel.
Recognize the practice of law is a calling. Enhancing access to justice by providing pro bono representation, and by contributing financially to legal services is vital. Serving on bar association committees and community boards are also important ways to answer the calling for public service.
Appreciate the importance of continuing education, mentoring, and excellence. It is important to stay abreast of the law and attend CLE programs. Additionally, mentoring new lawyers is an implicit commitment by the best lawyers. It is not wrong to take time out during a deposition to suggest to a new lawyer the proper way to pose the question, after several failed attempts. Of course, if this contradicts the best interest of your client, this suggestion is not appropriate.
When thinking of professionalism, consider the following remarks made many years ago by John W. Davis, Esq.: “In the heart of every great lawyer, worthy of the name there burns a deep ambition so to bear themselves that the profession may be stronger by reason of their passage through its ranks, and that they may leave the law itself a better instrument of human justice than they found it.”
Let’s all be one of the best lawyers to which he refers.
Paul Mark Sandler, trial lawyer and author, can be reached at [email protected]