by Timothy J. Corrigan
I want to scratch the surface of one aspect of professionalism: the sometimes inherent tension between adhering to the tenets of professionalism and making money in the practice of law.
Before I continue, I assure you that this is not a diatribe against lawyers by a judge who one could argue is so far removed from the economic realities of law practice as to be unqualified to speak on the topic. Rather, I affirm my deep belief that the practice of law remains a noble profession populated for the most part by attorneys who practice professionally and whose primary motivation is service to their clients and to the community at large (witness the large amount of pro bono practice and the over-representation of lawyers in all manner of charitable and civic activities). However, I do worry that economic pressures are overly influencing many decisions that the modern lawyer makes.
Before becoming a Florida lawyer, each of us was required to take an oath in which, among other things, we pledged not to “counsel or maintain any suit or proceedings which shall appear to be unjust, nor any defense except those that are honestly debatable under the law of the land.” How many lawyers today, faced with the need to satisfy a difficult client who is paying the fee or to bill a sufficient number of hours to make their firm’s overhead or needing to have a certain amount of business in hand to pay the bills, have been tempted to stray from this precept?
Likewise, how many lawyers are always able to ignore the bottom line as we try to follow the oath’s injunction to “employ” in our practice “such means only as are consistent with truth and honor . . .”? How many of us, because of the perceived need to achieve a certain standard of living, have failed to consistently “abstain from all offensive personality” and have advanced “no fact prejudicial to the honor or reputation of a party or witness, unless required by the justice of the cause . . .” ? Finally, how many of us have faithfully followed the admonition that we “never reject from any consideration personal to ourselves, the cause of the defenseless or oppressed, or delay anyone’s cause for lucre or malice”? To the extent that these words are not merely vacuous platitudes, they will at times inevitably clash with the lawyer’s own economic self interest.
I suggest to you that the more that economic considerations predominate a lawyer’s practice, the more likely that lawyer is to diverge from the principles set forth in The Florida Bar Oath and the other recognized codes of professionalism and ethics.
This, in turn, does not lead to greater satisfaction in the practice of law but rather gives the lawyer a sense of disquiet, a disquiet expressed by lawyers to me on a regular basis. Of course, this is not to say that lawyers don’t need to make a living nor that lawyers are not entitled to be paid and even paid well for their services. However, in many cases, balance needs to be returned to the “pocketbook” versus professionalism equation.
Lawyers should be frankly acknowledging the increasing economic and competitive dilemmas they face today and should be promoting opportunities for discourse concerning issues such as:
• Is the billable hour system defective? If it is, what is a better way?
• Is the contingent fee system in need of modification? If so, how?
• What is the appropriate role of lawyer advertising?
• Are lawyers often enough playing the role of counselor, that is, advising the client as to not just what is legally possible but whether that course of action is advisable?
• Are lawyers sufficiently retaining the independence which is the foundation of our legal system?
• Are lawyers saying “no” to their clients often enough?
• How, in the words of New York University Law School Dean John Sexton, “does a lawyer confront the possibility of taking action that does not violate any law but does offend the underlying spirit of the law?”
The answers to these and related questions are vital to the continued efficacy of the practice of law. Lawyers must remain the keepers of the flame of the creeds which have served our profession well and which enable us to continue our high calling of placing the public interest and service to our clients above our own personal considerations.
This article is an adaptation of a speech delivered by Judge Corrigan at a Nov. 1, 2002 convocation commemorating Florida Coastal School of Law’s accreditation by the American Bar Association. If you would like to write an article about an ethical or professionalism experience that others in the Bar may learn from, please contact Caroline Emery, chair of the Professionalism Column, at [email protected].