Professionalism CLE Guidelines

Introduction
Role of the Commission
Background
Distinction Between Ethics and Professionalism
The Meaning of Professionalism
General Purpose
Issues and Topics
Examples of Courses
Results Desired
Relation to CCLC and ICLE
What This Training Should Not Be
Closing Thoughts

Introduction

In 1989, the Supreme Court of Georgia took two significant steps to confront the concerns and further the aspirations of the profession. First, it created the Chief Justice's Commission on Professionalism and gave it a primary charge of ensuring that the practice of law in this state remains a high calling, enlisted in the service not only of the client, but of the public good as well. This challenging mandate was supplemented by the Court's second step, that of amending the mandatory CLE rule to require all active Georgia lawyers to complete one hour of Professionalism CLE each year [Rule 8-104 (B)(3) of the Rules and Regulations for the Organization and Government of the State Bar of Georgia]. The Court designated the Institute on Continuing Legal Education in Georgia (ICLE) as the sole sponsor of professionalism training and made the rule effective January 1, 1990. On May 31, 1991, the Supreme Court changed the rule to allow sponsors in addition to ICLE to conduct professionalism events so long as the sponsor is approved according to the policies and procedures of the Commission on Professionalism and complies with the "Professionalism CLE Guidelines."

The Chief Justice's Commission recognizes the need to provide guidance to ICLE and any other proposed Professionalism CLE provider as to the Court's expectations regarding this training. In adopting these guidelines, the Commission intends that ICLE, other CLE sponsors, and individual trainers or speakers be clear as to the goals and purposes of this requirement and what the desired outcomes from this training will be. If seminars, workshops or other sessions are designed and implemented in accordance with these guidelines, the Commission rests assured that a forum will be created where lawyers and judges can explore the meaning of professionalism in contemporary legal practice and reflect upon the fundamental premises of lawyer professionalism -- autonomy, loyalty, confidentiality and vigorous representation.

Role of the Commission

The Commission should be viewed as a resource for information and materials on Professionalism by any sponsor, group, or person planning a CLE session on professionalism. The Commission encourages sponsors to tailor their Professionalism sessions to the concerns of the group to whom it is presented. Once a format for the Professionalism session has been determined by the sponsor, the Commission can be contacted and asked to search its files to ascertain whether relevant materials are available for the session being planned. While the Commission itself cannot plan, implement, and conduct all of the nearly 400 annual CLE Professionalism sessions which are offered by various sponsors, the Commission is willing to assist, to the extent it receives sufficient advance notice, in the planning of a CLE course on Professionalism.

Background

At least three separate topics are tied up in what is generally referred to as legal ethics: the disciplinary rules and "the law of lawyering", the concept of professionalism and role differentiation, and the question of how to do justice. A fourth topic, legal malpractice, is also of concern since the same fact situation will oftentimes give rise to both ethics and malpractice considerations. All of these topics, of course, are interrelated. The disciplinary rules require but place limits on attorney zeal, the issue with professionalism asks us whether we can be both zealous and good, and inquiries into justice question the adversary system itself. These three aspects also are in conflict regarding the lawyer's own expectations.

Distinction Between Ethics and Professionalism

The Supreme Court has distinguished between ethics and professionalism at least to the extent of creating separate one-hour CLE requirements for each. The best explanation of the distinction between ethics and professionalism was offered by Chief Justice Clarke in his article in an interview in May, 1990:

". . . the idea that ethics is a minimum standard which is required of all lawyers while professionalism is a higher standard expected of all lawyers."

Laws and the Rules of Professional Conduct establish minimal standards of consensus impropriety; they do not define the criteria for ethical behavior. In the traditional sense, persons are not "ethical" simply because they act lawfully or even within the bounds of an official code of ethics. People can be dishonest, unprincipled, untrustworthy, unfair, and uncaring without breaking the law or the code. Truly ethical people measure their conduct not by rules but by basic moral principles such as honesty, integrity and fairness.

"Ethics" are commonly understood in the CLE context to mean "the law of lawyering" and the rules by which lawyers must abide in order to remain in good standing before the bar. "Professionalism" harkens back to the traditional meaning of ethics discussed above. The Commission believes that lawyers should remember in counseling clients and determining their own behavior that the letter of the law is only a minimal threshold describing what is legally possible, while professionalism is meant to address the aspirations of the profession and how we as lawyers should behave. Ethics discussions tend to focus on misconduct -- the negative dimensions of lawyering. Hopefully, the professionalism discussions will have an affirmative dimension -- a focus on helping, caring, protecting, counseling, and setting a good example.

The Meaning of Professionalism

The three ancient learned professions were the law, medicine, and ministry. The word profession comes from the Latin professus, meaning to have affirmed publicly. As one legal scholar has explained, "The term evolved to describe occupations that required new entrants to take an oath professing their dedication to the ideals and practices associated with a learned calling."¹Many attempts have been made to define a profession in general and lawyer professionalism in particular. The most commonly cited is the definition developed by the late Dean Roscoe Pound of Harvard Law School:

The term refers to a group . . . pursuing a learned art as a common calling in the spirit of public service - no less a public service because it may incidentally be a means of livelihood. Pursuit of the learned art in the spirit of a public service is the primary purpose.²

Teaching and Learning Professionalism, the 1996 Report of the Professionalism Committee of the American Bar Association Section of Legal Education and Admissions to the Bar, expands the Pound definition and particularizes it for lawyers:

A professional lawyer is an expert in law pursuing a learned art in service to clients and in the spirit of public service; and engaging in these pursuits as part of a common calling to promote justice and public good.

Former Chief Justice Harold Clarke defines a professional as a member of a group which provides an essential service in which the public has a vital interest and which requires of the performer extensive training and the exercise of qualitative judgment.

Justice Norman Fletcher gives his sense of professionalism as follows:

I have concluded that professionalism, in a legal sense, is to a great extent practicing the golden rule. It is not -- do my opponent in before my opponent does me in, -- but rather, it is do unto your fellow attorneys, the judges and society as you would have them do unto you.

Justice Sandra Day O'Connor of the United States Supreme Court gives as her definition:

To me, the essence of professionalism is a commitment to develop one's skills to the fullest and to apply that responsibly to the problems at hand. Professionalism requires adherence to the highest ethical standards of conduct and a willingness to subordinate narrow self-interest in pursuit of the more fundamental goal of public service. Because of the tremendous power they wield in our system, lawyers must never forget that their duty to serve their clients fairly and skillfully takes priority over the personal accumulation of wealth. At the same time, lawyers must temper bold advocacy for their clients with a sense of responsibility to the larger legal system which strives, however imperfectly, to provide justice for all.

The Commission believes that the ability to define professionalism is not as important as how we demonstrate professionalism in our work. Thinking about professionalism and discussing the values it encompasses can provide guidance in the day-to-day practice of law. Professionalism is a wide umbrella including the values of competence, civility, ethics, integrity, respect for the rule of law, for the legal profession, for other lawyers and the courts, for clients and the public, fidelity to the lawyer's roles as officer of the court, counselor at law, resolver of problems, duties to provide pro bono legal representation and community and public service, to work for improvement of the law and the legal system, and to assure access to that system. These are the values that make us a profession enlisted in the service not only of the client but of the public good as well. The Commission encourages thought not only about the lawyer-client relationship that defines us a profession but to think as well about how our profession is shaping us as people.

General Purposes

The general goal of the Professionalism CLE requirement is to create a forum in which lawyers, judges and legal educators can explore and reflect upon the meaning and goals of professionalism in contemporary legal practice. Building a community among the lawyers of this state is a specific goal of this requirement.

Issues and Topics

In March of 1990, the Chief Justice's Commission adopted a Creed for Georgia Lawyers and an Aspirational Statement for the Profession (Appendix). These two documents should serve as the beginning points for professionalism discussions, not because they are to be imposed upon Georgia lawyers or bar associations, but because they serve as words of encouragement, assistance and guidance. These statements are more comprehensive than others that have been adopted in other jurisdictions and should be utilized to guide discussions and raise issues. The kinds of issues implicit in the Aspirational Statement and which can be the subject of Professionalism CLE are:

the independence of the lawyer in the context of the lawyer-client relationship
the conflict between duty to client and duty to the system of justice or to the public good
the conflict in the duty to the client versus the duty to the other lawyer
the responsibility of the lawyer to use effective oral and written communication skills in general
the responsibility of the lawyer to employ effective client communications and relations skills in order to increase service to the client and foster understanding of expectations of the representation, including accessibility of the lawyer and agreement as to fees
the lawyer's responsibilities as an officer of the court
misuse and abuse of discovery and litigation
the lawyer's responsibility to perceive and protect the image of the profession
the responsibility of the lawyer to the public generally and to public service
the duty of the lawyer to be informed about all forms of dispute resolution and to counsel clients accordingly

Specific topics which can be the subjects of Professionalism CLE are:

Alternative Dispute Resolution - negotiation, settlement, mediation, arbitration, other dispute resolution processes alternative to litigation
Advocacy - effective persuasive advocacy techniques for trial, appellate, and other representation contexts
Bias Issues - ethnic, gender, racial, socioeconomic status
Billable Hours
Civility
Clarity in Communications - with the court, lawyers, clients, government agencies, the public
Client Communication Skills
Client Concerns and Expectations
Commercial Pressures
Discovery - effective techniques to overcome abuse
Diversity Issues - ethnic, gender, racial, socioeconomic status
Law Practice Management - issues relating to development and management of a law practice including client relations and technology to promote the efficient, economical and competent delivery of legal services, in accordance with Regulation (11) to Rule 8-106(B) of the Rules and Regulations for Organization and Government of the State Bar of Georgia:

Practice Management CLE includes, but is not limited to, those activities which (1) teach lawyers how to organize and manage their law practices so as to promote the efficient, economical and competent delivery of legal services; and (2) teach lawyers how to create and maintain good client relations consistent with existing ethical and professional guidelines so as to eliminate malpractice claims and bar grievances while improving service to the client and the public image of the profession.

Mentoring
Responsibility for improving the administration of justice
Responsibility to ensure access to the legal system
Responsibility for performing community, public and pro bono service
Restoring and sustaining public confidence in the legal system, including courts, lawyers, the systems of justice
Roles of Lawyers

The Lawyer as Counselor
The Lawyer as Hearing Officer
The Lawyer as In-House Counsel
The Lawyer as Judge (or prospective judge)
The Lawyer as Officer of the Court
The Lawyer as Problem Solver
The Lawyer as Prosecutor
The Lawyer as Public Servant

Public Interest
Quality of Life Issues - balancing priorities, career/personal transition, emotional and mental health, stress management, substance abuse.

A major goal of this training is to encourage introspection and dialogue about these issues. It is very difficult, if not impossible, to accomplish this in large, undifferentiated groups. The Commission encourages the designers of these events to provide for smaller, more intensive groups. Practice-oriented programs are preferred, and they can be "taught" in small classes with an intense but relatively collegial atmosphere. They involve the lawyer/student in the process of lawyering. By definition, they present the sorts of problems lawyers typically face, and they search for solutions or ways of thinking about these problems. In courses such as these, the interest of the lawyer/student usually rises in direct proportion to his or her personal engagement in the session.

Therefore, the Commission strongly encourages the designers of the sessions to explore more creative, introspective, interactive and simulation-based methods for presenting professionalism issues in the CLE course. Experiential training should be emphasized. Lawyers tend to learn best by example, so models of behavior and professional values should be identified and discussed. Above all, courses should be structured to confront the question, "How will you handle this situation when it occurs in your practice?" and the more confrontational the better. Practicing lawyers invariably respond better to realism in teaching, and professionalism issues can be made just as real as any other CLE-taught topic.

Examples of Courses

A number of different designs for professionalism courses have been developed which have been well-received by the participants while meeting the goals set out by the Supreme Court.

The following formats have proven effective in eliciting active participation and fostering reflection in CLE professionalism courses:

1. The hypothetical format:

A panel is asked to respond to hypothetical situations which raise questions or concerns ranging from pure ethical issues to professionalism concerns. The panel is facilitated in its discussion by a lawyer whose job it is to push the discussion and point out inconsistencies or disagreements. The ethical issues can be addressed in terms of the Code of Professional Responsibility and the Standards of Conduct, but the professionalism concerns tend not to be subject to right/wrong answers. This format tends to work best with discrete groups (i.e., lawyers who work in the same practice area) where the hypotheticals can be drawn from the day-to-day practice of those particular lawyers.

[Hypotheticals developed by the Commission are available to planners of CLE events.]

2. Use of role play through videotapes:

A valuable training technique, especially when interaction with the audience is a goal, is to use role-plays to dramatize a particular issue or concern. There are now available several videotapes which were developed specifically to demonstrate through role plays various ethical and professionalism dilemmas. Videos produced by the American Bar Association, the University of Pennsylvania Center on Professionalism, and the Commission are particularly well-suited for these courses, and have been used successfully in both large and small group sessions. The use of role plays can be an effective technique for generating active and spirited audience participation in a discussion. Descriptions of the videotapes produced by the Commission are attached. A list containing more detailed descriptions of the videotape programs produced by the Commission and others is available from the Commission.

3. Use of non-role play videotapes:

The Commission and other organizations have developed videotapes on various professionalism topics, such as civility, clients, discovery, gender, service (the Commission's Perspectives on Lawyer Professionalism, a 9-videotape series of interviews with Georgia lawyers and judges, described on the attached list). Detailed descriptions of the programs produced by the Commission and others is available from the Commission.

4. For newly admitted lawyers:

In 1989, the Commission produced a videotape entitled Expectations vs. Realities - From Law School to the Profession. This 20-minute video contains interviews with law students and young lawyers who express their concerns about their experiences in law school and in the first few years of practice. They also offer their own personal definitions of what it means to be a professional. This tape is useful in framing issues of concern to the newly admitted lawyer and generating a panel or audience discussion about the expectations that accompanied one to law school versus the realities encountered early on in practice. The tape is available from the Commission.

5. Town hall meeting:

Particularly conducive to discussions of professionalism for local bar associations, in-house CLE, or firm retreats is the town hall meeting format. After introductory remarks about the need to explore professionalism in contemporary practice, the major portion of the meeting is devoted to discussions in small breakout groups of professionalism concerns and suggestions in the particular context. These discussions can be stimulated by oral questions or a written questionnaire. Responses to the questions provide data for the sponsoring organization to use as it deems appropriate. For example, some firms have responded to town meeting data highlighting the need for more guidance for associates by instituting mentoring programs.

6. ADR training:

Training in the processes of dispute resolution in addition to litigation, such as arbitration, mediation, and early neutral evaluation, qualify for professionalism CLE credit. Because of the duty of the lawyer to be informed about all forms of dispute resolution, one to three hours of the one-time mandatory three-hour CLE course in alternative dispute resolution or of any approved CLE course in alternative dispute resolution (Regulation (5) to Rule 8-104 (B) and Regulation (10) to Rule 8-106(B), respectively, of the Rules and Regulations for the Organization and Government of the State Bar of Georgia] can qualify for professionalism CLE credit, whether the training is for advocates or neutrals.

There are a variety of other designs and programs which are appropriate for in-house CLE programs, for specialized groups and for large groups. The goal of any design, however, should be to generate thought-provoking and introspective discussion among the participants about the meaning of professionalism in contemporary legal practice.

Results Desired

If successful, these courses will inculcate a habit of talking with colleagues and engaging in dialogue that is essential to a healthy professional life. They also will encourage the habit of reflection (or the "stop and think" rule of morality). They will acquaint lawyers with the harsher realities of the profession, but also will equip them with a variety of strategies for coping with these realities. They will also deepen one's awareness of a lawyer's particular professional situation and can provide a sense of empowerment or control over a professional career rather than a passive acceptance of an untenable situation. They should expand the horizons of participants with respect to the richness and variety of the profession and the range of interests compatible with practice in the profession. And lastly, they can stimulate the normal imagination about the potential of a professional life.

Relation to CCLC and ICLE

Other Guidelines

All rules, accreditation standards, and regulations of Commission on Continuing Lawyer Competency (CCLC) shall be observed.
The criteria for co-sponsorship should be observed by any group wishing to co-sponsor a session with ICLE.
Written materials should be designed to stimulate discussions about the nature of the profession, the lawyer-client relationship, and the relationship between business and professional values. CCLC accreditation standards provide as follows:

Thorough, high quality, and carefully prepared written materials should be distributed to all attendees at or before the time the course is presented. It is recognized that written materials are not suitable or readily available for some types of subjects; the absence of written materials for distribution should, however, be the exception and not the rule.

Each attendee should be given an evaluation form to be completed and returned to the sponsor which not only evaluates the particular course and trainers, but offers ideas or suggestions to the Commission on how best to address professionalism concerns.

What This Training Should Not Be

The Lawyer's Creed and Aspirational Statement on Professionalism have been adopted by the Chief Justice's Commission as encouragement, guidance and assistance to individual lawyers, law firms, and local and circuit bar associations. They are specifically not intended:

To supersede or amend the disciplinary rules established by the Supreme Court;
To establish a standard of conduct against which lawyer negligence might be judged or to become a basis for the imposition of civil liability of any kind;
To establish a new basis for any formal disciplinary proceedings or enforcement; or
To establish any State Bar policy or set of principles, unless the State Bar or any local bar chooses to adopt a particular "Lawyer's Creed."

The Commission's hope is that members of this profession will recognize the special obligations that attach to their calling and will also recognize their responsibility to serve others and not be limited to the pursuit of self interest. The Creed and Aspirational Statement cannot be imposed by edict, because moral integrity and unselfish dedication to the welfare of others cannot be legislated. Nevertheless, a public statement of principles of ethical and professional responsibility can provide guidance for newcomers and a reminder for experienced members of the bar about the basic ethical and professional tenets of their profession.

Closing Thoughts

Professionalism is about both principles and character. All lawyers would prefer that their practices be character-building rather than corrupting. They want to be able to achieve a good life in the practice of law. That is much more a character issue than one of principle. Honesty is a moral principle (and dishonesty is a Standard violation -- see Standard #4), but it also is an issue of character ("I should not lie because lying makes me a liar, and being a liar is a bad way to live.").

Professional behavior, however, is not simply a matter of character and principle; it is a matter of choice and decision-making. Thus, the issue is not all or nothing. It is not a question of being or not being ethical. It usually is not a question of right or wrong. It is a question of doing or not doing the ethical or professional thing. In our high pressure world, it may not be possible to act professionally all the time. It is, however, possible and important to act more professionally more often.

Professionalism discussions are too often framed as simple issues of rule-following or rule-violation. But the real issue facing lawyers as professionals is developing the capacity for critical and reflective judgement. The CLE sessions should strive to cultivate reflective judgment about the practice of law and to assess how well current practices are serving the legal profession and the system of justice in light of the traditions of our practice.

¹ Deborah L. Rhode, Professional Responsibility: Ethics by the Pervasive Method 39 (1994)

² Roscoe Pound, The Lawyer from Antiquity to Modern Times 5 (1953)