ABA Center for Professional
Responsibility
The Professional Lawyer Volume 22, Number 1
2013
Analyzing Common Themes in Legal Scholarship on
Professionalism to Address Current Challenges for
Legal Education
Neil W. Hamilton*
Neil W. Hamilton is Professor of Law and Director of the Holloran Center for Ethical Leadership in the
Professions, University of St. Thomas School of Law (MN). Prof. Hamilton recently authored Ch. 1,
“Qualities of the Professional Lawyer,” in a book by the ABA Standing Committee on Professionalism,
Essential Qualities of the Professional Lawyer (ABA Center for Professional Responsibility 2013).
*I am very grateful for Aaron Knoll’s outstanding research assistance during his 2L and 3L years that
contributed to this article. I am also grateful for the comments of Gerald Postema on an earlier draft of
the article.
Abstract:
The ABA is going to change the accreditation standards to require more emphasis on fostering each
student’s ethical professional formation or professionalism. Each law school can use this as an opportunity to embrace and build on the expected changes in the ABA’s accreditation standards regarding
ethics instruction for each student that will help the students and the law school itself to prosper in
these challenging markets. A student who has internalized a high degree of professionalism is going to
demonstrate many of the capacities and skills that empirical research demonstrates legal employers
are seeking and evaluating.
To satisfy the new accreditation standards, each law school must define assessable learning outcomes
for the ethical professional formation of the students. This essay analyzes all the legal scholarship on
professionalism since 1980 to define clearly the elements of professionalism and thus learning outcomes regarding professionalism that are assessable. The essay then analyzes how a law school fostering each student’s development toward a clearly defined learning outcome of this type will help each
student toward employment which in turn will help a law school’s employment metrics as they
increasingly become the focus of both the ranking agencies and the applicants for law school.
“If you don’t like change, you are going to like irrelevance even less.” -Secretary of Veterans Affairs Eric Shinseki
Published in The Professional Lawyer, Volume 22, Number 1, ©2013 by the American Bar Association. Reproduced with permission. All
rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an
electronic database or retrieval system without the express written consent of the American Bar Association.
1
ABA Center for Professional
Responsibility
The Professional Lawyer Volume 22, Number 1
2013
I. Introduction
Secretary Shinseki’s aphorism above captures the challenge facing law schools because of both dra1
2
matic downturns in the markets for employment of law graduates and for applications to law schools
and expected changes in the American Bar Association’s (ABA) accreditation standards discussed
below. The logical extension of Shinseki’s point is that a law school can embrace dramatic market
change not just to avoid irrelevance but also to seize opportunities to improve and grow and gain comparative market strength. This essay will focus on one major opportunity for a law school to embrace
and build on the expected changes in the ABA’s accreditation standards regarding ethics education for
each student in a way that will help each student and the law school itself to prosper in challenging
markets.
The essay first analyzes in Part II the expected changes in the ABA’s accreditation standards to require
the identification and assessment of learning outcomes designed to prepare students for “effective,
ethical and responsible participation as members of the legal profession” and to help each student
achieve “competency” both in the “exercise of proper professional and ethical responsibilities to
clients and the legal system” and in “other professional skills needed for competent and ethical partic3
ipation as a member of the legal profession.” Part III synthesizes all the scholarship analyzed in detail
in Part V, defining the elements of professionalism to articulate clear learning outcome that can be
assessed. The essay in Part IV analyzes how a law school fostering each student’s development toward
a clearly defined learning outcome of this type will help each student toward employment which in
turn will help the law school employment metrics as they increasingly become the focus for inquiry
from applicants. The essay then turns in Part V to analyze in detail how existing scholarship defining
professionalism can help a law school to define a learning outcome for students of “effective, ethical
and responsible participation as members of the legal profession.”
II. Expected Changes in the ABA Requirements Regarding Ethics Instruction
Probabilities are high that the American Bar Association will change the accreditation standards for
4
law schools to require much greater emphasis on ethical issues in preparing students to practice law.
5
The draft standards also require assessment of these mandated ethics learning outcomes. Are law
schools ready for these changes? This essay argues that an analysis of earlier scholarship on professionalism and its definition of what effective, ethical and responsible participation as a member of the
profession means can help guide legal educators to address the proposed changes.
With respect to preparing students to practice law ethically, law schools are subject to existing Standard 302(a)(5) that mandates only that a law school “shall require that each student receive substantial
instruction in: . . . (5) the history, goals, structure, values, rules and responsibilities of the legal profes6
sion and its members.” This existing standard focuses on inputs such as a course on professional
responsibility.
The late-stage draft proposals of the Standards Review Committee focus on outputs such as learning
outcomes for students and assessment of outputs to determine whether the students have achieved the
learning outcomes. The proposed changes directly related to preparing law students to practice law
ethically are noted in bold below:
Published in The Professional Lawyer, Volume 22, Number 1, ©2013 by the American Bar Association. Reproduced with permission. All
rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an
electronic database or retrieval system without the express written consent of the American Bar Association.
2
ABA Center for Professional
Responsibility
The Professional Lawyer Volume 22, Number 1
2013
1. Change existing Standard 301 on “Objectives” from preparing students for “effective and
responsible participation in the legal profession” to “effective, ethical and responsible par7
ticipation as a member of the legal profession.”
2. Change existing Standard 302 from “Curriculum” to “Learning Outcomes” that require each
law school to “establish learning outcomes that shall at a minimum include competency in
the following . . . :
(c) Exercise of proper professional and ethical responsibilities to clients and
the legal system; and
(d) Other professional skills needed for competent and ethical participation as
a member of the legal profession.”
Note that this new Draft Standard 302 on learning outcomes combined with Standard
301 emphasizes essentially that the law school should help each student internalize
and exercise:
(1) the skills needed for both (a) effective and competent and (b) ethical and
responsible participation as a member of the legal profession; and
(2) professional and ethical responsibilities to both (a) clients and (b) the legal system.
3. Change existing Standard 302 for “Curriculum” to Standard 303 for “Curriculum” that
“requires each student to satisfactorily complete at least the following:
(1) one course of at least two credit hours in professional responsibility that includes
substantial instruction in the history, goals, structure, values and responsibilities of
the legal profession and its members…,” and
(3) “one or more experiential course(s) totaling at least six credit hours…. To satisfy
this requirement, a course must be primarily experiential in nature and must: (i)
integrate doctrine, theory, skills, and legal ethics and engage students in perfor8
mance of one or more of the professional skills identified in Standard 302….”
4. Add a new standard 314 on “Assessment of Student Learning” providing, “A law school
shall utilize both formative and summative assessment methods in its curriculum to measure
9
and improve student learning and provide meaningful feedback to students.”
5. Add a new Standard 315 on “Evaluation of Program of Legal Education, Learning Outcomes
and Assessment Methods” that requires “the dean and the faculty of a law school shall conduct ongoing assessment of the law school’s program of legal education, learning outcomes,
and assessment methods; and shall use the results of this evaluation to determine the degree
of student attainment of competency in the learning outcomes and to make appropriate
10
change to improve the curriculum.”
The overarching theme of the proposed changes is that the accreditation standards for legal education
are going to follow the education assessment framework already adopted by accrediting authorities for
11
graduate education in the health professions and undergraduate education. This education assessment framework asks faculty to:
1. Identify student educational needs;
Published in The Professional Lawyer, Volume 22, Number 1, ©2013 by the American Bar Association. Reproduced with permission. All
rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an
electronic database or retrieval system without the express written consent of the American Bar Association.
3
ABA Center for Professional
Responsibility
The Professional Lawyer Volume 22, Number 1
2013
2. Articulate student learning outcomes (educational objectives) that respond to student educational
needs;
3. Plan and implement an educational program and curriculum that helps students achieve the
learning outcomes;
4. Create formative and summative assessment measures; and
12
5. Evaluate the effectiveness of the educational program and curriculum.
If we focus specifically on the proposed accreditation changes relating to preparing students to practice law ethically, this educational assessment framework requires each law school to define ethicsrelated learning outcomes with enough clarity and specificity that the learning outcomes can be
13
assessed. For example, what is “effective, ethical and responsible participation as members of the
legal profession?” What is “competency [for students] …in [the] exercise of proper professional and
ethical responsibilities to clients and the legal system?”
The proposed accreditation changes borrow from and build on an existing scholarly literature on “professionalism” and what “effective, ethical and responsible participation as members of the legal profession” means. This essay analyzes legal scholarship on professionalism (which includes much
discussion of the ethical responsibilities of the legal profession beyond the black-letter rules) since
1980 to define clearly the elements of professionalism and the consequent learning outcomes that professionalism requires. This essay is part of a series of articles (using both legal analysis and qualitative
and quantitative empirical research) seeking to define clearly the elements of professionalism and its
14
synonyms, ethical professional identity and ethical professional formation. If we observe significant
similarities in the elements of professionalism or professional formation across a number of research
windows, we move toward a research-validated definition useful in articulating assessable learning
outcomes.
Part III of this article synthesizes the various strands of legal scholarship on professionalism to provide
useful guidance for articulating the key elements defining the requirements of effective, ethical and
responsible participation as members of the legal profession as assessable learning outcomes. Part IV
focuses on how a student who has internalized a moral core of effective, ethical and responsible participation as a member of the legal profession will demonstrate the values, virtues, capacities and skills
that legal employers want. Part V of this essay analyzes legal scholarship on professionalism in depth
starting with scholarship that is skeptical of using the concept of professionalism to foster lawyers’
ethical development because of problems inherent in the concept. Part V then analyzes legal scholarship that has implicitly defined professionalism, and finally turns to examine legal scholarship that has
explicitly defined professionalism.
III. A Synthesis of the Common Elements of Scholarship on Professionalism
Law faculties must prepare for coming changes in accreditation standards that ask for significantly
more attention to fostering students’ ethical development in the context of the education assessment
framework outlined in the Introduction. These changes will require each law school to “establish” clear
learning outcomes designed to prepare its students for “effective, ethical and responsible participation
as members of the legal profession” and competency in the “exercise of proper professional and ethical
15
responsibilities to clients and the legal system.” The draft standards require each faculty to design a
Published in The Professional Lawyer, Volume 22, Number 1, ©2013 by the American Bar Association. Reproduced with permission. All
rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an
electronic database or retrieval system without the express written consent of the American Bar Association.
4
ABA Center for Professional
Responsibility
The Professional Lawyer Volume 22, Number 1
2013
curriculum to help students achieve the defined learning outcomes and finally to assess whether the
curriculum is helping student development in terms of the learning outcomes. The legal scholarship on
professionalism analyzed in depth in Part V provides substantial guidance for law school efforts to
identify and define clear learning outcomes to meet these requirements.
A. Substantial Consensus on the Major Elements of Professionalism
Since 1980, forty-three scholars have tried to define professionalism explicitly, and there is a broad
consensus among them concerning its major elements. All forty-three include the concept that the
foundation of professionalism is a law student’s or practicing lawyer’s moral core or personal conscience, either saying this explicitly or saying it implicitly by defining professionalism to include virtues,
attributes, or capacities that the lawyer should internalize (presumably into his or her moral core). In
other words, a learning outcome of fostering students’ professionalism means a law school will foster
growth in both each student’s moral core (moral compass or personal conscience) and the internalization of the profession’s foundational principles and ideals into each student’s moral core.
Among the thirty-nine scholars who go beyond just defining professionalism in terms of a moral core,
moral compass or personal conscience to give a more explicit definition of the core principles and
ideals of the profession to be internalized, there is some disagreement indicated below concerning
which core principles and ideals are the most important elements:
• Twenty-one include adequate access to legal services for the disadvantaged or the promotion of
justice;
• nineteen, integrity;
• seventeen, excellence at the technical skills of lawyering;
• fifteen, deep responsibility and service to others;
• thirteen, honesty;
• thirteen, rule compliance;
• thirteen, the importance of independent judgment and candid counsel;
• twelve, wisdom and practical judgment;
• eleven, respect for the legal system, rule of law or participants in the legal system;
• eight, the importance of ethical peer culture and peer review;
• six, the concept that growth as an ethical lawyer is developmental over a career;
• and six, the importance of self-reflection and self-assessment.
Two of the three scholars whose definition of professionalism is implied include respect for others in
the legal system, honesty and fairness as implied elements of professionalism. All three implicitly
called for some self-restraint in seeking sustainable profits.
B. Overlap With the Draft Accreditation Standards
The draft accreditation standards call for each student to internalize the competency to participate
effectively, ethically and responsibly as a member of the legal profession and the competency to exercise proper professional and ethical responsibilities to clients and the legal system. The draft standards
require each law school to establish, assess and evaluate clear learning outcomes for these two general
competencies but leave it up to each law school to define the learning outcomes further with enough
Published in The Professional Lawyer, Volume 22, Number 1, ©2013 by the American Bar Association. Reproduced with permission. All
rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an
electronic database or retrieval system without the express written consent of the American Bar Association.
5
ABA Center for Professional
Responsibility
The Professional Lawyer Volume 22, Number 1
2013
clarity to permit assessment. The scholarship on professionalism has tried to define the elements of
these two general competencies more specifically. Each law school should consider Table 3 in Part V
below as a useful synopsis of how legal scholars have defined the elements of professionalism. Each
law school could be expected to endorse those professionalism elements most consistent with the
school’s mission and then to design and implement a curriculum and culture that would foster those
core elements.
C. Professionalism Is Developmental
Six scholars defined the elements of professionalism to include developmental growth as an ethical
lawyer over a career, and six included also the habit of self-reflection and self-assessment to foster this
growth. A developmental understanding of professional formation or professionalism requires a paradigm shift for legal education and the profession. The learning outcome of professional formation will
require legal education and continuing legal education to tailor educational engagements to the current developmental stage of each student or practicing lawyer to help each individual internalize the
profession’s values into the individual’s existing moral core.
The Carnegie Foundation for the Advancement of Teaching’s extensive study of medical education,
Educating Physicians (2010), observes that professional formation requires educational engagements
16
appropriate to each student’s developmental stage. Recent empirical evidence strongly supports the
hypothesis that professional formation into a fully-internalized ethical professional identity occurs
17
over a life span through defined stages. Psychologist Robert Kegan argues that adult development
toward an internalized professional identity does not occur simply as a natural process of aging or
physical maturation, but rather occurs as an individual constructs his or her own meaning through a
developmental continuum of moral identity. This continuum of moral identity development proceeds
in sequence from an early self-interest construct through a concrete rule framework toward a less egocentric, more responsible, more complex understanding of human relationships and making sense of
18
the self in these relationships. There is growing empirical evidence that later stages of moral reasoning and moral identity correlate positively with both client and senior lawyer perceptions of effective19
ness in the practice of law.
If we assume that professional formation into an ethical professional identity is developmental over a
lifespan through identifiable stages, then it follows that the learning outcomes and curriculum that
each law school adopts regarding professional formation must be designed to engage each student at
the student’s present developmental stage. Note that growth of this type may be slower than growth in
the cognitive and practical skills necessary for effective lawyering.
D. Substituting Professional Formation for Professionalism
The term “professionalism” has historical roots that have motivated both the legal scholarship analyzed here and the practicing bar’s national and state commissions and committees on professionalism. While this historical tradition is important, the term does have some definitional ambiguity and
historical baggage noted by the skeptics analyzed in Part V. I suggest that “professional formation” is
the stronger term to use going forward for the same reasons that the Carnegie Foundation for the
Advancement of Teaching found persuasive.
Published in The Professional Lawyer, Volume 22, Number 1, ©2013 by the American Bar Association. Reproduced with permission. All
rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an
electronic database or retrieval system without the express written consent of the American Bar Association.
6
ABA Center for Professional
Responsibility
The Professional Lawyer Volume 22, Number 1
2013
The five Carnegie Foundation studies of higher education in the professions use different terms for
what Carnegie calls the third apprenticeship including professional formation, formation of a profes20
sional identity, professionalism, and ethical comportment. Educating Physicians, the last of the studies published in 2010, adopts “professional formation” rather than “professionalism” as the best term
to use going forward in order to emphasize the developmental and multi-faceted nature of the con21
struct. The term professional formation indicates “an ongoing self-reflective process involving habits
22
of thinking, feeling, and acting.” It is a lifelong commitment to continued progress toward excellence
23
and the aspirational goals of the profession.
Substituting “professional formation” for “professionalism” may also appeal to some of the nine skeptics discussed in Part V who have concluded that a definition of professionalism is either futile or not
useful. “Professional formation” avoids the perception that “professionalism” is a hypocritical mask
for self-promotion and privilege. Professional formation’s multifaceted developmental model that also
has an ability to account for differences in the peer culture of different practice settings and avoids the
critique that “professionalism” is simplistic and too one-dimensional. Finally, “professional formation” may appeal to skeptics like Morgan who strongly endorse moral formation for all the occupations
but are concerned about the exceptionalism that professionalism historically has implied.
IV. How a Clear Learning Outcome for Professional Formation Also Helps Each Student
to Develop the Values, Virtues, and Capacities that Legal Employers Want
Earlier research analyzed a number of empirical studies showing that growth in any of the capacities of
the Four Component Model (personal conscience or moral core) is positively related to professional
24
effectiveness. Earlier empirical research also showed “a significant positive relationship between [a
lawyer’s] internalized high professionalism and clients’ and senior lawyers’ perceptions of [the
25
lawyer’s] effectiveness in the practice of law” Table 1 provides a synthesis of four empirical studies on
26
the values, virtues, capacities and skills that legal employers and clients want.
Table 1 is a synthesized competency model showing that legal employers and clients evaluate a new
lawyer’s effectiveness not just by looking at the quality of the lawyer’s technical legal skills, but also by
looking at the values and virtues relating to both the new lawyer’s moral core and to the new lawyer’s
ability to build successful relationships with clients and in teams. For example, both law firm competency models and individual clients evaluate a new lawyer’s (1) integrity, honesty and trustworthiness
and (2) ability to take feedback and reflect to foster self-development. Law firm competency models
evaluate whether a new lawyer has self-awareness and an internalized commitment to grow toward
excellence in all the other competencies of being an effective lawyer. Law firm competency models and
both individual and corporate clients also evaluate a new lawyer’s (1) good judgment, (2) client relationship skills, and (3) teamwork skills.
A simple inspection of Table 1 also reveals the foundational importance of the values and virtues in the
left column to a lawyer’s career-long growth in terms of the other important capacities and skills of an
effective lawyer. For example, an internalized commitment to career-long self-development toward
Published in The Professional Lawyer, Volume 22, Number 1, ©2013 by the American Bar Association. Reproduced with permission. All
rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an
electronic database or retrieval system without the express written consent of the American Bar Association.
7
ABA Center for Professional
Responsibility
The Professional Lawyer Volume 22, Number 1
2013
excellence at all competencies and the capacity to recognize strengths and weaknesses and reflect
about improvement are foundational to all of Table 1. Integrity, honesty and trustworthiness are foundational for all successful long-term relationships with clients and among teams.
A comparison of the values, virtues, and capacities included in Table 1 with the elements of professionalism on which scholars had some consensus indicates some substantial overlap. For example,
scholars emphasize that professionalism includes integrity (19), excellence at technical skills (17),
deep responsibilities and service to others (16), honesty (13), independent judgment and candid counsel (13), practical judgment (12), respect for others in the legal system (11), self-development over a
career, and self-reflection and self-assessment (6).
Veteran Affairs Secretary Shinseki’s aphorism starting this essay reminds each law school to embrace
change in these challenging markets. Each law school should use the coming accreditation changes
that the late-stage draft reflects as an opportunity to link the move toward more curricular emphasis
on ethical responsibilities to the client, the legal profession, and the legal system to help for each student to develop the foundational values, virtues, and capacities that legal employers want. Each law
faculty can use how legal scholars have defined the elements of professionalism to inform this discussion.
Empirical research also suggests the most effective curriculum, culture and pedagogies to foster each
27
student’s internalization of the elements of professional formation For example, the most effective
curriculum, culture and pedagogy to foster each student’s growth toward a commitment to career-long
self-development toward excellence in all competencies include coaching and mentoring where the
professor asks stage-appropriate questions, encouraging the habit of actively seeking feedback, dialogue with others on the tough calls, and self-reflection, and structuring repeated opportunities
28
throughout the curriculum for practicing this habit, particularly using formative assessments.
A law school that adopts an effective curriculum, culture and pedagogy to help each student’s development toward clearly defined learning outcomes for professional formation will both satisfy the
expected changes in the accreditation standards and position each student to be more attractive to
legal employers. Law schools face a future where the employment metrics for graduates are going to be
much more significant for potential applicants than a school’s ranking. It is highly in each school’s
enlightened self-interest to help students grow toward the elements of professional formation and
increase their attractiveness to employers.
Published in The Professional Lawyer, Volume 22, Number 1, ©2013 by the American Bar Association. Reproduced with permission. All
rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an
electronic database or retrieval system without the express written consent of the American Bar Association.
8
ABA Center for Professional
Responsibility
The Professional Lawyer Volume 22, Number 1
2013
V. How The Scholarship on Professionalism Can Help Define a Learning Outcome for the
Competency to Participate Effectively, Ethically, and Responsibly as Members of the
Legal Profession
A. The Skeptics: A Definition of Professionalism Is Futile or Not Useful
Few scholars unequivocally disparage efforts to define and integrate the principles of professionalism
into the practice of law. But even when they do, they do not disparage the ethical values or moral core
at the heart of professionalism. Rather, they argue against using the concept of professionalism as a
vehicle to form lawyers who internalize these ethical core values.
Morgan may be the most prolific skeptic who deems the “quest” to define and teach professionalism as
29
misguided. As he simply puts it, the legal profession and professionalism are dead. More specifically,
professionalism as characterized by “strong central organization and restrictive rules of practice” is no
30
longer relevant. He contends that conceptions of profession and professionalism are mere barriers
inhibiting lawyers’ necessary responses to new market realities, which include: (1) the dramatic growth
in the number of lawyers; (2) the impact of globalization on lawyers and law practice; (3) the impact of
improving information technology on lawyers’ work; (4) the growth of the law firm as the premier
practice organization including changes in firm billing practices and leverage; (5) the increasing proportion of lawyers representing business in comparison with the proportion providing individual-oriented work; (6) the increasing relative power of inside counsel; and (7) the diminished significance of
licensing to protect lawyers from increasing competition by paralegals, banks, insurance companies,
31
investment advisers, and other organizations.
Morgan notes that certain core values—preserving confidentiality, avoiding conflicts of interest, independent judgment, competence, commitment, broad access to justice, and respect for the rule of
32
law—are not unique to the legal profession. As a consequence, he argues the concept of professionalism is useless—the values it espouses are values to be shared by the entire community, not just profes33
34
sionals. Ultimately, he views tomorrow’s lawyer not as a professional but as a business consultant.
Nelson and Trubek argue that the traditional ideals of the profession have been abandoned. They note,
“We mostly rely on post-hoc horror stories about what has gone wrong and use them to analyze the
35
nature of the problem.” In arguing that professionalism is not a unitary set of values but rather a
compendium of questions about which lawyers from all sorts of fields argue, Nelson and Trubek assert
36
that professionalism must be studied “in many arenas.” They identify four of these structured settings or arenas in which issues of professionalism are most often contested: “(1) legal education; (2)
collective action on behalf of the profession (e.g., by bar associations); (3) disciplinary enforcement;
37
and (4) the workplace.” They observe that political and economic actors, primarily anti-trust efforts
to break up the profession’s hold on legal services, have caused lawyers to lose “control over forces
that are reshaping the markets in which they compete, the pace and quality of their work lives, and
38
their status in society.” This phenomenon resulted in various understandings of professionalism,
none of which were actually shared widely in the profession. Nelson and Trubek call this “a symbolic
and nostalgic crusade in the name of an ideology almost no one really believes in fully and which has
39
little to do with the everyday working visions of American lawyers.”
Published in The Professional Lawyer, Volume 22, Number 1, ©2013 by the American Bar Association. Reproduced with permission. All
rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an
electronic database or retrieval system without the express written consent of the American Bar Association.
9
ABA Center for Professional
Responsibility
The Professional Lawyer Volume 22, Number 1
2013
A few scholars view efforts to define professionalism as overly narrow, limiting, and antithetical to the
goal of forming ethical practitioners. For example, Atkinson has argued that professionalism is a simplistic crusade based on an implicit assumption: there is one universal path that leads to professional
40
behavior while categorically condemning certain conduct. Atkinson’s more recent work finds value in
Brandeis’ approach to professionalism that understands that all the professions in a market economy,
including business, offer the opportunity to work while living the virtues, including a commitment to
41
the common good. Freedman and Smith argue that professionalism’s emphasis on civility and cour42
tesy will undermine zealous advocacy. Cochran argues that defining professionalism is dangerous
because it can be used to protect the profession from public accountability and scrutiny, to justify
excessively aggressive advocacy in the name of public service, and to encourage either professional
43
paternalism or professional relativism.
Other scholars have criticized explicit definitions of professionalism, like the six-value framework of
44
Terrell and Wildman discussed in Part V. Rodes claims that distilling professionalism into a list of
core values espouses a false theory of relative morality, where ethical behavior is defined by the indi45
vidual rather than the community, privately assessed rather than publicly shared. Penegar also warns
against simplistic visions of ethical behavior: “Without [a] more complicated picture of reality, efforts
to conjure a single image, consciousness, or ideal justification for lawyers’ roles and work are likely to
46
remain unconvincing.”
B. Professionalism Implicitly Defined
While skeptics fail to see the utility of defining professionalism, several scholars implicitly define it by
describing problems within the profession that demonstrate a lack of professionalism. These scholars
thus imply that a positive definition of the elements of professionalism is the opposite of the problems
or failures that they identify. For example, if incivility or incompetence shows a lack of professionalism, by implication civility and competence are elements of professionalism.
In his 1984 report to the American Bar Association, Chief Justice Warren Burger deplored that the
47
practice of law ceased to be a profession—it was now a business. Eleven years later, he still warned
48
against the injurious societal impact of this “serious decline in professionalism.” He characterized
this decline by examining recent trends of lawyer behavior: (1) improper statements to the press that
49
operate to prejudice fair outcomes; (2) “Rambo” lawyers who will undertake any tactic in defense of
50
their client, even at the expense of the justice system; and (3) “huckster-shyster” advertising that
51
aims to mislead and unduly influence the public.
Judge Richard Posner of the Seventh Circuit articulates his vision of professionalism within a context
of the increasing commercialization and competitiveness, although he fails to define professionalism
52
specifically. He writes, “Today, all is changed, changed utterly.” Although Posner does assert that the
bar has become more professional in the last half-century by “deploying a body of genuine, specialized,
socially valuable knowledge-based skills rather than by cultivating a professional mystique,” this
53
growth has not kept pace with the medical or military fields. Posner believes this is due to the law’s
“deep entwinement with politics” and with its inability to build a “body of real knowledge” with con54
sistent theory. Further pointing to the increase in demand for legal services as the cause of an
Published in The Professional Lawyer, Volume 22, Number 1, ©2013 by the American Bar Association. Reproduced with permission. All
rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an
electronic database or retrieval system without the express written consent of the American Bar Association.
10
ABA Center for Professional
Responsibility
The Professional Lawyer Volume 22, Number 1
2013
increase in the supply of those services—as well as increased competition within the profession, significant growth in both profits and in-house legal staffs, and decreased job satisfaction—Posner posits
that the industrialization trend in the legal field will erode the profession’s ethical obligation to both
55
the court and the community. He argues, “The lawyer’s performance of his ethical obligations to people and institutions that are not his clients disserves his clients, his customers, and competition
56
implies the subordination of other interests to those of the consumer.”
Daicoff comprehensively reviews empirical research on those characteristics that affect the profession57
alism of legal practitioners. She initially describes the “tripartite crisis” that has emerged within the
legal profession in the last two decades: “‘professionalism has declined, public opinion of attorneys
58
and the legal profession has plummeted, and lawyer dissatisfaction and dysfunction have increased.”
She points to several pieces of evidence to demonstrate the decline in professionalism specifically:
frequency of disciplinary actions and malpractice suits against lawyers, ethics code violations
by attorneys, uncivil, discourteous, and aggressive behavior by attorneys towards other attorneys and non-lawyers, Rambo-style litigation tactics, a win-at-all-costs mentality; the com59
mercialization of the legal profession, and blatant and offensive advertising by attorneys.
Daicoff’s summary of the existing empirical data suggests that lawyers’ decision-making approaches,
personality characteristics, and values differ significantly from the general adult population and that
60
there are some pre-existing traits that characterize those who choose a legal career. More specifically, Daicoff describes lawyers as “more competitive, aggressive, and achievement-oriented, and over61
whelmingly Thinkers (instead of Feelers), as compared to the general population.” In terms of moral
reasoning, she claims the evidence suggests that lawyers are more focused on “maintaining rules, regulations, social order, and conformity,” but it also suggests that their stage of moral development may
62
not differ from other similarly educated adults. Daicoff connects these traits to the professionalism
crisis: “unprofessional, discourteous, and uncivil behavior, blatant lawyer advertising, de-professional63
ism of the law, and materialism may simply be products of these typical lawyer attributes.” But
throughout the empirical review, Daicoff fails to define affirmatively the elements of professionalism.
Table 2 shows the common themes that emerge if we assume that professionalism is implicitly defined
as the opposite of what these authors identify as problems of professionalism.
C. Professionalism Explicitly Defined
Over the past thirty-three years since 1980, a much larger number of scholars have seriously considered what elements comprise professionalism and how those elements should be definitively articulated. Table 3 provides an overview of the elements that each scholar has included. I analyze each
scholar’s contribution following Table 3. The scholars are listed from earliest to latest by date of publication.
Postema undertakes a philosophical analysis to define a new approach to legal ethics and the “respon64
sible professional.” He rejects “self-concepts” and the “zealous pursuit of client objectives” because
unbridled adherence to these ideals causes the lawyer to suspend “moral assessment” or “moral
Published in The Professional Lawyer, Volume 22, Number 1, ©2013 by the American Bar Association. Reproduced with permission. All
rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an
electronic database or retrieval system without the express written consent of the American Bar Association.
11
ABA Center for Professional
Responsibility
The Professional Lawyer Volume 22, Number 1
2013
65
agency.” Instead of this confusion and self-deception, professionalism should be defined through
66
moral agency and practical judgment, a view that calls for “reflective capacity” and “coherent unity.”
He explains,
The product of this activity is not an abstract system of norms or values; it is, rather, essentially self-consciousness. The central importance of self-unity in moral agency is evident from
our notion of moral integrity. This concept at once captures the idea of honesty, uprightness,
and soundness of moral principle and the idea of being whole, complete, and undiminished as
67
a state of character.
Postema espouses a need for self-reflection and self-assessment, which are dispositions and skills that
help legal professionals not only to identify the consequences of their actions but also to take respon68
sibility for them.
Luban assails a view of professionalism in which—within the context of an adversary system—a
69
lawyer’s professional obligations excuses the lawyer’s ordinary moral obligations. As he puts it, “Professionalism can tell lawyers not to cut corners; my point is that it cannot mandate them to cut
70
throats.” Such a view requires lawyers to be “relentlessly focused” on morality to the same extent
71
that non-lawyers are. And Luban pushes beyond moral activism, arguing that “morally activist
lawyers should sometimes refrain from zealously advancing lawful client interests even when the
threat to third parties is minimal or event intangible, and even when the benefit to the client may be
72
substantial.”
73
Sammons defines professionalism as “meaningful participation,” or the obligation to serve others.
He illustrates this professional ideal in a number of ways. Principally, “the ideal must offer an accept74
able justification for the activities of the profession.” In that respect, the professional ideal must
75
attain a higher purpose than simply benefiting the professional; it should be about service to others.
Ultimately, the professional ideal is moral, not adversarial; meaningful participation is the moral justi76
fication for who we are and what we do as lawyers.
Terrell and Wildman argue that the heritage of the profession of law is the basis of a “professional tra77
dition” defined by a set of essential, timeless principles. They attempt to isolate those principles of
professionalism, which include: (1) an ethic of excellence; (2) integrity, or saying no to client demands
at the limits of law; (3) respect for the system and rule of law; (4) respect for other lawyers and others
who serve legal systems; (5) commitment to accountability to clients; and (6) responsibility for ade78
quate distribution of legal services.
Kronman articulates a vision of professionalism by urging a return to the “ideal” of the “lawyer-states79
man.” In a nostalgic view of the profession, he argues that “lawyers will find it harder to believe their
work provides intrinsic fulfillment of any kind. . . . The result is a growing sense, among lawyers generally, that their yearning to be engaged in some lifelong endeavor that has value in its own right can no
Published in The Professional Lawyer, Volume 22, Number 1, ©2013 by the American Bar Association. Reproduced with permission. All
rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an
electronic database or retrieval system without the express written consent of the American Bar Association.
12
ABA Center for Professional
Responsibility
The Professional Lawyer Volume 22, Number 1
2013
80
longer be satisfied in their professional work.” Kronman describes the forces that are working against
the “ideal of the lawyer-statesman,” which include the significant growth of American law firms and
81
the bureaucratization of courts.
Powell conclusively notes that professionalism is often treated as a “self-evident concept requiring no
82
definition.” However, he does attempt to define professionalism. He points not necessarily to the
professional standards required by the disciplinary rules or the aspirations articulated in legal ethics
83
scholarship, but rather what the profession has come to believe is expected of its members. He deems
this concept as “ordinary morality,” which encompasses the expectations for conduct that each person
84
assumes with respect to himself or herself or with respect to other practitioners. Therefore, professionalism requires that a lawyer “be both other-regarding and self-regarding, for it is . . . only then that
he is able to see himself as one who has been entrusted by society with the obligation of promoting
85
client representation as a social good.”
Buchanan suggests that the six standards of the selective International Society of Primerus Law Firms
86
are the best model of professionalism and can facilitate the return of legal professionalism. These six
standards include (1) integrity, (2) excellence of work product, (3) reasonable fees, (4) professional
87
education, (5) civility, and (6) community service. The adoption of these standards suggests a
renewed “consumer-oriented” course for lawyers in their relationships to clients and the public in
88
order to mend current dismal reputations and revitalize professionalism.
Coquillette argues that the legal profession has suffered not due to human inadequacy but to the
89
growth of “goal instrumentalism.” Observing that educators have been teaching law as an instrument
to achieve a particular political, social, or economic end, he concludes that the only way to recapture
the profession and regain self-respect is to refocus legal education from the classroom to the “human90
istic roots” of the law. Lawyers should not think of themselves as instruments to someone else’s ends
but focus on their strong heritage of protecting the rule of law as an ideal, serving the system of jus91
tice, and promoting humanism.
Zacharias and Green separate personal conscience from professional conscience, arguing that lawyers
should rely on professional conscience in making some types of discretionary decisions under the law
92
of lawyering. This concept of professional conscience “embodies professional norms” derived from
93
the “lawyer’s professional relationship to the court, which is itself committed to promoting justice.”
94
In this sense, these norms to live by are communicated through “professional socialization.”
Zacharias also characterizes the profession’s emphasis on pro bono work, which many describe as the
95
core of professionalism, as a response to the bar’s image problem.
Rhode initially argues that “a central part of the ‘professionalism problem’ is a lack of consensus about
96
what exactly the problem is, let alone how best to address it.” She laments that initiatives to promote
professionalism are only popular not because they are effective, but because they are “innocuous” and
97
are assumed to improve public perception of the profession. She also notes that because the public
Published in The Professional Lawyer, Volume 22, Number 1, ©2013 by the American Bar Association. Reproduced with permission. All
rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an
electronic database or retrieval system without the express written consent of the American Bar Association.
13
ABA Center for Professional
Responsibility
The Professional Lawyer Volume 22, Number 1
2013
perceives lawyers as greedy, lawyers perceive their profession as having a credibility and public image
98
problem. She concludes, “[Professionalism initiatives] affirm our professional aspirations without the
99
inconvenience of actual adherence.”
However, Rhode also argues that the tension between the lawyers’ economic and non-economic inter100
ests and the tension between professional interests and public interests must be reconciled. She
writes that tradeoffs between financial rewards, moral independence, regulatory autonomy, and public
101
accountability must be considered. Finally, she concludes by offering guiding principles to help
address the issues facing the legal profession, which call for: (1) adequate recognition of the variations
102
among contemporary lawyers; (2) the responsibility for lawyers to take personal moral responsibility
for the consequences of their professional acts, which requires reflecting on the consequences in a
103
104
realistic social context; and (3) equitable access to legal services.
Cramton argues that a renewed vision of professionalism is needed. It should include a lawyer who (1)
cares about clients and engages in moral dialogue with them while protecting client interests, (2) cares
about equal access to legal services and efficiency in the provision of services, and (3) considers moral
105
conscience in daily practice.
Simon contends that a definition of professionalism should represent the “contextual view” rather
106
than the “dominant view” of legal ethics. Whereas the “dominant view” imposes on lawyers the duty
to advocate zealously for the client’s interests, the “contextual view” asserts that lawyers should act in
107
ways most likely to promote justice while considering the relevant circumstances of each case.
108
Wilkins perceives professionalism as a struggle of competing identities. He rejects the ideal of
“bleached out professionalism,” or the notion that “lawyers should check their personal identities at
109
the door when performing their professional roles.” He explains that “bleached out professionalism”
instructs each lawyer to adopt a “professional self,” a normative requirement formed by a group-based
110
identity as opposed to a personal identity. Instead, he advocates that lawyers should embrace their
nonprofessional identity—who they are when they are not a lawyer. Because lawyers do not normally
check their personal moral codes at the door in order to adopt a profession-approved substitute,
Wilkins argues that lawyers can rise above what are frequently seemingly simplistic yes/no moral
111
dilemmas—the answer determined based on which group you belong to. Wilkins ultimately rejects
the “professional self” ideal, which is based on norms such as neutrality, objectivity, predictability, and
112
equality.
Wendel argues initially that the moral dimension of lawyering is essential to defining professional113
ism. He also urges that lawyers seek “motivation in the intrinsic values that inform professional
114
life.” Ultimately, Wendel believes that lawyers are intrinsically motivated by their moral cores—they
115
will justify their actions through a value-laden rationale. In a later article, Wendel clarifies that
“Professionalism, in the sense that we have been discussing here, does not mean that the lawyer’s
responsibility is to do right on an all-things-considered basis. Nor is the lawyer acting as an individual
moral agent, doing right by her own lights. The lodestar here is always an interpretation of applicable
Published in The Professional Lawyer, Volume 22, Number 1, ©2013 by the American Bar Association. Reproduced with permission. All
rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an
electronic database or retrieval system without the express written consent of the American Bar Association.
14
ABA Center for Professional
Responsibility
The Professional Lawyer Volume 22, Number 1
2013
116
legal norms.” In 2011, Wendel emphasized again that moral and social considerations are already
embedded in sound legal reasoning, and professional identity for lawyers is “performing well the com117
plex task of representing clients effectively within the bounds of the law.”
Mather, McEwen, and Maiman approach the concept of professionalism based on their empirical study
118
of the divorce-practice context. They argue from empirical data that divorce lawyers make decisions
that are affected by the various concepts of professionalism through “communities of practice,” or
“groups of lawyers with whom practitioners interact and to whom they compare themselves and look
119
for common expectations and standards.” This “professionalism in practice” approach, focusing on
120
the “everyday practice of law”, differs from the traditional scholarly perception of the concept.
These authors characterize divorce attorneys as two competing, value-oriented groups: legal-craft-ori121
ented and client-adjustment-oriented. Those who are legal-craft-oriented attorneys aim to produce
the best legal result possible under the circumstances, regarding their role as primary technical and
122
provisional. In contrast, those who are client-adjustment-oriented aim to produce outcomes that
would principally improve the lives of their clients, seeking to solve problems (not necessarily through
123
the legal process) and fill a void in the emotional needs of their clients. Ultimately, the authors conclude that divorce lawyers are neither necessarily solely motivated by profit nor seeking to impose
their independent judgments on clients; rather, divorce lawyers specifically are faced with understanding the real struggles of their clients, and they evaluate and help clients based on the lawyer’s own
124
internalized core values and standards of excellence.
In comparing Anglo-American approaches to resolving conflicting professional duties, Whelan argues
that “[p]rofessional responsibility should be based upon an individual lawyer’s exercise of professional
125
judgment.” In other words, when faced with ethical conflicts, lawyers must rely on their moral
126
code—and not simply a professional code—for answers. True professionalism, he continues, requires
127
the lawyer to deliberate, weighing the factors to reconcile conflicting duties. In other words, “[i]t
means making judgments guided not exclusively by money, convenience, or what the client wants, but
128
also by a professional ethic.”
Breger, Calabrese, and Hughes argue that professionalism is a highly subjective concept that varies on
129
context. Within that framework, however, the authors provide a working definition of professionalism based on various professional ideals or core values: “zeal, loyalty, judgment, expertise, excellence,
130
dedication, competence, and civility.” The authors conclude by stating that there are some fundamentals of professionalism: first that it embraces “the realm of ethics” and far beyond, and, second,
that it encompasses characteristics of appropriate attorney conduct and ideals for effective advocacy.
They also concede there is debate about the boundaries of professionalism beyond the mandatory
131
rules.
Krieger presents professionalism as a combination of the technical legal skills required and the per132
sonal virtues that lead to lawyer effectiveness, inner well-being, and life satisfaction. Krieger characterizes these personal virtues as “broad vision/wisdom, integrity and honesty, compassion, respect for
others and for differences, unselfishness, the desire to serve others and one’s community, self-confi133
dence, individualism, and a real commitment to justice.” He emphasizes the connection between
Published in The Professional Lawyer, Volume 22, Number 1, ©2013 by the American Bar Association. Reproduced with permission. All
rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an
electronic database or retrieval system without the express written consent of the American Bar Association.
15
ABA Center for Professional
Responsibility
The Professional Lawyer Volume 22, Number 1
2013
these values, especially integrity and physiological and psychological health, noting that separation
from personal values and beliefs, conscience, truthfulness, and intrinsic needs for caring and coopera134
tion has “negative consequences for health, happiness, and professional reputation.”
Pang argues that while selflessness is an admirable quality in lawyers, the loss of the self is also prob135
lematic. Technical excellence, unwavering loyalty, and sacrifice of the personal self ultimately yield
136
a professional without virtue. Pang struggles with seemingly contradictory visions of the professional self: what is professionally responsible might also include a “desire for personal vindication,”
137
but this may also violate personal responsibilities and professional obligations. He notes a convergence of thought on this dispute, “one that honors an inner rudder which orients [the person] toward
138
‘the heart of the matter,’ or the things that really matter.” This quest for “daily meaning” is characterized by a self-yearning for “meaning, purpose, and authenticity, and places work within a larger life
139
journey.” Ultimately, Pang defines this concept of professionalism, which approaches the concept of
personal conscience, through core values: “someone who is loyal, generous, competent, discerning,
140
courageous, resistant to crass self-gain, and committed to serving others.”
Stuckey chaired a project including survey data from clinical faculty aimed at developing “best prac141
tices” for law schools to fundamentally change the ways they educate their students. In determining
that law schools are “not committed to preparing students for practice,” Stuckey developed a model
program of instruction, integrating experiential and non-experiential methods of learning with assess142
ment and evaluation tools to improve the quality of legal education. Stuckey argues that schools
143
must “pervasively” teach professionalism throughout all three years of law school, and he defines
professionalism as certain behavioral traits: commitment to justice, respect for the rule of law, honor,
integrity, fair play, truthfulness, candor with the client, sensitivity and effectiveness with diverse
144
clients and colleagues, and a nurturing quality of life.
Shultz and Zedeck also have evaluated what attributes are essential for effective and responsible
lawyering, determining that law school admissions programs can more accurately predict which
prospective students will make effective lawyers by focusing on certain traits rather than LSAT scores
145
or undergraduate GPAs. In 2003, Schultz and Zedeck surveyed over 2,012 Berkley alumni in Phase I
and 1,148 Berkeley and Hastings alumni in Phase II, asking questions such as, “If you were looking for
146
a lawyer for an important matter for yourself, what qualities would you look for?” The survey yielded
a list of twenty-six “effectiveness factors” important to effective lawyering, and many of the factors are
147
also values at the core of professionalism. The relevant characteristics included: problem solving,
pragmatism, empathy, commitment to the client relationship, diligence, integrity/honesty, self-devel148
opment, passion and engagement, stress management, and community service.
In a similar fashion, Henderson, based on extensive data from focus groups of Indiana alumni, also
seeks to tackle professionalism by distilling those traits that are important for effective and successful
149
lawyering. Based on his focus groups, Henderson determines that certain attributes are critical to
any model of professionalism: commitment to serve the client, problem solving, pragmatism, drive for
150
excellence, resilience, initiative, perseverance, integrity, self-awareness, and a learning orientation.
Published in The Professional Lawyer, Volume 22, Number 1, ©2013 by the American Bar Association. Reproduced with permission. All
rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an
electronic database or retrieval system without the express written consent of the American Bar Association.
16
ABA Center for Professional
Responsibility
The Professional Lawyer Volume 22, Number 1
2013
Davis perceives professionalism through the context of foreign jurisdictions, looking to England and
Australia for inspiration. He cites the “Regulatory Objectives” as defined in the English Legal Services
Act of 2007 to describe professionalism, which include: “(1) protecting and promoting the public interest; (2) supporting the constitutional principle of the rule of law; (3) improving access to justice; (4)
protecting and promoting the interests of consumers; (5) promoting competition in the provision of
services . . . ; (6) encouraging an independent, strong, diverse and effective legal profession; (7)
increasing public understanding of the citizen’s legal rights and duties; and (8) promoting and main151
taining adherence to the professional principles.” Davis focuses specifically on objectives four and
152
five, which primarily concern new modes of legal-service delivery. Davis contends that English success with structuring new arrangements and ventures with non-lawyers will give them an “unimaginable competitive advantage” over their American counterparts in legal-service delivery, and concepts
153
of professionalism should be redefined to account for client service and protection.
Defining professionalism within the context of his Legal Profession course, Longan offers five key
characteristics of the concept: (1) special expertise, or knowledge, skill, diligence, and judgment; (2)
fidelity to the client, especially in times of crisis and client vulnerability; (3) service-orientation and
acting to maximize access to their services, especially to those who cannot afford them; (4) fidelity to
154
the law and its institutions even at a disadvantage to the client; and (5) civility.
Greenstein implies a definition of professionalism within the context of the tension between acting as
155
a professional and in accordance with sound moral reasoning. He argues that the regulation of the
156
professional has driven “lawyers toward a simplification of their ethical obligations.” This ethical
simplification allows lawyers more easily to satisfy the regulations and “protect[s] lawyers from
157
unforeseeable or unavoidable ethical missteps.” Instead, Greenstein asserts that lawyers do not give
up their moral identities by joining the profession; lawyers must reflect on and take responsibility for
ethical decisions and the resulting consequences, because it is “an important part of an individual’s
158
moral character.”
Timmer and Berry describe the expectations of a professional identity: both the adherence to the
Model Rules of Professional Conduct and the ethical and moral expectations on human relation159
ships. They describe professional identity as a composition of core values, ethics, and character, and
160
emphasize that even minor deviations from our core values can “destroy our lives or careers.”
For purposes of investigating the progress law students achieve in developing a sense of professional
identity, Silver, Garver, and Watkins have identified five primary areas of professionalism: “building
relationships with future clients, capacity for moral reasoning, handling the stress of law practice,
161
serving the public good, and acting with integrity.” Strikingly, their survey data demonstrated that
162
law schools are least effective at helping students build relationships with clients. They suggest that
student interaction in law schools “must be more intentional and intensive in order to serve as the
163
basis for developing relationships in a professional setting.”
Published in The Professional Lawyer, Volume 22, Number 1, ©2013 by the American Bar Association. Reproduced with permission. All
rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an
electronic database or retrieval system without the express written consent of the American Bar Association.
17
ABA Center for Professional
Responsibility
The Professional Lawyer Volume 22, Number 1
2013
Although Wald and Pearce ground their approach to professionalism in a similar way to other scholars
who implicitly define it—by reacting to the rise in incivility in the profession—they take a step further
by articulating a relational perspective of self-interest that transforms lawyers from “neutral parti164
sans” to “civic teachers.” Whereas the autonomous self-interest only commands professional behavior when it furthers the ambitions of the individual, the relational self-interest leads “civic actors to
understand their own well-being as connected to those of neighbors, communities, and government . .
165
. .” By acting only as “neutral partisans,” Wald and Pearce argue, “lawyers have contributed to the
166
civil malaise, in and outside of the legal profession.” Instead, as “civic teachers,” lawyers have a duty
to “model and teach civility” by demonstrating “mutual respect, courtesy, trust, and cooperation;”
encouraging sustained public dialogue; and suggesting relational self-interest perspectives when rep167
resenting clients. In their 2011 article, Wald and Pearce emphasize a “relationally self-interested
professionalism” that “understands clients as attempting to pursue and maximize their self-interest in
relation to others, conducting themselves pursuant to the principles of mutual benefit and mutual
168
respect. It understand lawyers’ role … as facilitators of such relational goals….”
In one 2011 article, Hamilton and Monson look at how judges and the practicing profession have
169
defined “professionalism.” Through an analysis and synthesis of the Conference of Chief Justices’
Professionalism Report, the two major ABA professionalism reports, and the ABA Model Rules of Professional Conduct, they define a tri-partite model of professionalism whose core is the personal conscience of each lawyer into which the lawyer internalizes the ethics of duty (the minimum standards of
the Rules and the law of lawyering) and the ethics of aspiration (the core principles and ideals that
170
guide the profession). The ethics of aspiration include: continuing growth toward excellence at the
technical skills of lawyering, a habit of seeking feedback, reflecting and self-assessing, zealous advocacy, loyalty to the client, confidentiality, public service, respect for the legal system and the participants in the system, independence of professional judgment, peer review, integrity, honesty, fairness,
171
and self-restraint in seeking sustainable profits.
In a second 2011 article, Hamilton and Monson report on an interview-based empirical study of peer172
honored professionalism award winners in Minnesota, asking how they understand professionalism.
All twelve exemplary lawyers, selected by a random sample from the 45 total award winners, defined
professionalism to have the following elements: (1) each attorney’s moral core or moral compass
including a deep sense of responsibility to others, trustworthiness in relationships with others, and
honesty with self and others; (2) counseling the client, including giving independent judgment and
candid and honest counsel informed by the lawyer’s moral core; (3) ongoing reflection and learning
including reflection about mistakes and professional and personal setbacks; and (4) self-assessment of
173
how the meaning of professionalism has evolved over their careers.
Boothe-Perry urges the ABA to adopt standards of professionalism as a requirement for law school
174
accreditation as a means to strengthen professionalism education in law schools. Synthesizing from
multiple sources, she argues that these standards of professionalism must include “attitudes and
behaviors that supersede self-interest, serve to enhance the public opinion and trust, adhere to high
ethical and moral standards, and aspire daily to a commitment of excellence in one’s personal and pro-
Published in The Professional Lawyer, Volume 22, Number 1, ©2013 by the American Bar Association. Reproduced with permission. All
rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an
electronic database or retrieval system without the express written consent of the American Bar Association.
18
ABA Center for Professional
Responsibility
The Professional Lawyer Volume 22, Number 1
2013
175
fessional life.” By way of illustration, she lists several examples of these attitudes and behaviors:
respect for the practice of law and legal system, integrity, civility and mutual respect, cultivation of a
176
moral core, and maintenance of professional appearance.
And finally, Vischer emphasizes that professional formation requires more than technical legal competence. It requires also reflection on human dignity and independent counsel by asking the client wis177
dom and impact on others of a client’s proposed course of action. He points also to the concept of
178
trust as one of the most integral elements of the practice of law. He argues that the marginalization
of trust in the attorney-client relationship, especially as to big-firm corporate legal practice, compromises both lawyers’ ability to find meaning in their work and their ability to fulfill their role as
179
entrusted quasi-public actors. Vischer suggests four ways to reaffirm relational trust as the center to
the lawyer’s professional identity: reform regulatory frameworks in ways that reflect trust as a professional attribute, foster client counseling exercises based on trust issues in law school classrooms,
demonstrate commitment to public interest initiatives that go beyond one’s own economic interests,
180
and transform one’s self-conception as a lawyer to transcend the profession’s market-driven parts.
Vischer also urges greater moral dialogue in the attorney-client relationship as essential to creating a
181
relationship of trust.
Endnotes
1. See William Henderson, A Blueprint for Change, 40 PEPP. L. REV. 461, 468-70, 491-92 (2013).
2. Id.
3. American Bar Association Section of Legal Education and Admissions to the Bar Standards Review
Committee, Style and Consistency Review Redlined-Draft for Oct. 2013 Meeting (Oct. 11-12, 2013 Meeting) [hereinafter Proposed Standards], at Standards 301 and 302, available
athttp://www.americanbar.org/content/dam/aba/migrated/2011_build/legal_education/committees/
standards_review_documents/
201310_src_meeting_materials_style_consistency_review.authcheckdam.pdf (last visited Oct. 25, 2013).
4. In September 2008, the ABA Council of the Section of Legal Education and Admissions to the Bar
began a comprehensive review of the ABA Standards and Rules of Procedure for the Approval of Law
Schools. The section’s Standards Review Committee is carrying the principal responsibility to complete
the project. This essay focuses on the proposed changes in the Style and Consistency Review Draft as of
the October 11-12, 2013 meeting of the Standards Review Committee. Seeid.
5. Id. at Standards 314 and 315.
6. Section of Legal Education and Admissions to the Bar, Standards and Rules of Procedure for the
Approval of Law Schools, Ch. 3 Standard 302, AMERICAN BAR ASSOCIATION, http://www.americanbar.org/
groups/legal_education/resources/standards.html (last visited Nov. 7, 2013).
7. Proposed Standards, supra note 3, at Standard 301.
8. Id. at Interpretation 302-1 (lists the following skills that could fulfill Standard 302(b)(3): “interviewing, counseling, negotiation, fact development and analysis, trial practice, drafting, conflict avoidance and resolution, organization and management of legal work, collaboration, cultural competency,
and self-evaluation.”).
9. Id. at Standard 314.
10. Id. at Standard 315.
Published in The Professional Lawyer, Volume 22, Number 1, ©2013 by the American Bar Association. Reproduced with permission. All
rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an
electronic database or retrieval system without the express written consent of the American Bar Association.
19
ABA Center for Professional
Responsibility
The Professional Lawyer Volume 22, Number 1
2013
11. SeeNELSON MILLER & VICKIE EGGERS, TEACHING LAW: A FRAMEWORK FOR INSTRUCTIONAL MASTERY 13
(2010). For example, the Accreditation Council for Graduate Medical Education is in charge of accreditation for residency programs. The council requires competency in six areas, three of which concern
ethics and professionalism. Their most recent standards state in part that “medical residents must
demonstrate . . . : (a) patient care that is compassionate, appropriate, and effective for the treatment of
health problems and the promotion of health . . . (d) interpersonal and communication skills that
result in effective information exchange and collaboration with patients, their families, and other
health professionals; (e) a commitment to carrying out professional responsibilities and adherence to
ethical principles.” Resident Participation in Educational and Professional Activities, ACGME, available
athttp://www.acgme.org/acgmeweb/Portals/0/irc_IRCpr07012007.pdf (last visited Nov. 7, 2013).
12. See MILLER & EGGERS, supra note 11, at 15–25, 99–104; ROY STUCKEY ET AL., BEST PRACTICES FOR
LEGAL EDUCATION: A VISION AND A ROAD MAP 7–9 (2007). Formative assessments are measurements at
different points during a particular course or over the span of a student’s education that provide meaningful feedback to improve student learning. Summative assessment methods are measurements at the
culmination of a particular course or the culmination of any part of a student’s legal education that
measures the degree of student learning. See also Muriel J. Bebeau & Verna E. Monson, Professional
Identity Formation and Transformation Across the Life Span, inPROFESSIONAL LEARNING OVER THE LIFE
SPAN: INNOVATION AND CHANGE (Anne McKee & Michael Eraut eds., 2011). For a review of the most
effective pedagogies for professional formation in legal education, see Neil Hamilton & Verna Monson,
Legal Education’s Ethical Challenge: Empirical Research on How Most Effectively to Foster Each Student’s
Professional Formation (Professionalism), 9 U. ST. THOMAS L.J. 325 (2011) [hereinafter Hamilton &
Monson, Ethical Challenge].
13. For further discussion on the significance of clearly defining professionalism, see Neil Hamilton,
Assessing Professionalism: Measuring Progress in the Formation of an Ethical Professional Identity, 5 U. ST.
THOMAS L.J. 470, 476–77 (2008) [hereinafter Hamilton, Assessing]; Neil Hamilton, Professionalism
Clearly Defined, 18 No. 4 PROF. LAW. 2008 at 4, 6 [hereinafter Hamilton, Defined].
14. The terms “professionalism” and “ethical professional identity” are used as synonyms in this literature. See Hamilton, Assessing, supra note 13, at 472–73; Hamilton, Defined, supra note 13, at 4; Neil
Hamilton & Verna Monson, The Positive Empirical Relationship of Professionalism to Effectiveness in the
Practice of Law, 24 GEO. J. LEGAL ETHICS 137, 141, 143 (2011) (hereinafter Hamilton & Monson, Positive
Empirical Relationship). The fifth and last Carnegie Foundation study of medical education uses “professional formation” rather than “professionalism” to emphasize the developmental and multifaceted
nature of the construct. SeeMOLLY COOK ET AL., EDUCATING PHYSICIANS: A CALL FOR REFORM OF MEDICAL
SCHOOL AND RESIDENCY 108 (2010). “By professional formation, [Carnegie] means ‘an ongoing selfreflective process involving habits of thinking, feeling and acting.’ These habits of thought, feeling and
action ideally develop in ways that allow learners to demonstrate compassionate, communicative, and
socially-responsible physician-hood.” Id. at 41. Hamilton and Monson also use transformational professionalism, linking lifespan developmental psychologist Robert Kegan’s work to Carnegie, and to an
assessment methodology that is used in organizational development. SeeWILLIAM M. SULLIVAN ET
AL.,EDUCATING LAWYERS: PREPARATION FOR THE PROFESSION OF LAW 1–20 (2007); see alsoROBERT KEGAN, IN
OVER OUR HEADS: THE MENTAL DEMANDS OF MODERN LIFE 185 (1998); Verna Monson & Neil W. Hamilton,
Entering Law Students’ Conceptions of an Ethical Professional Identity and the Role of the Lawyer in Society, 35 J. LEGAL PROF. 385 (2011); Verna Monson & Neil W. Hamilton, Ethical Professional
(Trans)Formation in Law: Early Career Lawyers Make Sense of Professionalism, 8 U. ST. THOMAS L.J. 129
Published in The Professional Lawyer, Volume 22, Number 1, ©2013 by the American Bar Association. Reproduced with permission. All
rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an
electronic database or retrieval system without the express written consent of the American Bar Association.
20
ABA Center for Professional
Responsibility
The Professional Lawyer Volume 22, Number 1
2013
(2011); Neil W. Hamilton & Verna Monson, Ethical Professional (Trans)Formation: Themes from Interviews About Professionalism with Exemplary Lawyers, 52 SANTA CLARA L. REV. 921(2012)(hereinafter
Hamilton & Monson, Exemplary Lawyers).
15. Proposed Standards, supra note 3, at Standard 302.
16. COOK, supra note 14, at 146. Educating Nurses makes this point implicitly by observing that the
transformation from a well-meaning lay person to the nurse who is prepared to respond with respect
and skill involves lifelong learning. PATRICIA BENNER ET AL., EDUCATING NURSES: A CALL FOR RADICAL
TRANSFORMATION 167 (2009). A thorough summary of guidelines for promoting the development of
reflective judgment (a concept highly related to professional identity or moral judgment) is available in
PATRICIA M. KING & KAREN STROHM KITCHENER, DEVELOPING REFLECTIVE JUDGMENT 230–57 (1994). King &
Kitchener provide examples of tailoring educational objectives by developmental level. Id. at 250–54.
17. See Monson & Hamilton, Entering Law Students’, supra note 14; Monson & Hamilton, Early
Career Lawyers, supra note 14; Hamilton & Monson, Exemplary Lawyers, supra note 14; Hamilton &
Monson, Answering the Skeptics on Fostering Ethical Professional Formation (Professionalism), 20 No. 4
PROF. LAW. 3 (2011).
18. ROBERT KEGAN & LISA LAHEY, IMMUNITY TO CHANGE: HOW TO OVERCOME IT AND UNLOCK THE POTENTIAL IN YOURSELF AND YOUR ORGANIZATION 16 (2009); Hamilton & Monson, Positive Empirical Relationship, supra note 14, at 149–50.
19. Hamilton & Monson, Positive Empirical Relationship, supra note 14, at 149–50.
20. Neil W. Hamilton, Fostering Professional Formation (Professionalism): Lessons from the Carnegie
Foundation’s Five Studies on Educating Professionals, 45 CREIGHTON L. REV. 763 (2012).
21. COOK, supra note 14, at 108.
22. Id. at 41.
23. Id. at 141.
24. Hamilton & Monson, Positive Empirical Relationship, supra note 14, at 184. For an explanation of
the Four Component Model, see Neil Hamilton, Verna Monson & Jerry Organ, Empirical Evidence That
Legal Education Can Foster Student Professionalism/Professional Formation To Become an Effective
Lawyer, 10 U. ST. THOMAS L.J. (forthcoming 2013) (hereinafter Hamilton, Monson & Organ, Empirical
Evidence).
25. Hamilton & Monson, Positive Empirical Relationship, supra note 14, at 184.
26. Neil Hamilton, The Qualities of the Professional Lawyer, in ESSENTIAL QUALITIES OF THE PROFESSIONAL LAWYER 1, 3 (ed. Paul Haskins, 2013); Neil W. Hamilton, Verna Monson & Jerome Organ,
Encouraging Each Student’s Personal Responsibility for Core Competencies Including Professionalism, 21
PROF. LAWYER (no. 3) 1, 8-9 (2012) (hereinafter Hamilton, Monson & Organ, Encouraging Each Student’s).
27. See Hamilton & Monson, Ethical Challenge, supra note 12 (analyzing all the available empirical
evidence on effective pedagogies for professional formation); Muriel J. Bebeau, The Defining Issues Test
and the Four Component Model, Contributions to Professional Education, 31 J. MORAL EDUC. 271 (2002);
Hamilton, Monson & Organ, Empirical Evidence, supra note 24.
28. Hamilton, Monson & Organ, Encouraging Each Student’s, supra note 26 at 11-12.
29. THOMAS MORGAN, THE VANISHING AMERICAN LAWYER 21 (2010); see also Thomas D. Morgan, Conference on Legal Ethics: “What Needs Fixing?” Toward Abandoning Organized Professionalism, 30 HOFSTRA L.
REV. 947, 974 (2002) (hereinafter Morgan, Conference on Legal Ethics); Thomas Morgan, Calling Law a
Profession Only Confuses Thinking about the Challenges Lawyers Face, 9 U. ST. THOMAS L.J. 542, 565
Published in The Professional Lawyer, Volume 22, Number 1, ©2013 by the American Bar Association. Reproduced with permission. All
rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an
electronic database or retrieval system without the express written consent of the American Bar Association.
21
ABA Center for Professional
Responsibility
The Professional Lawyer Volume 22, Number 1
2013
(2011). For a response to Morgan’s arguments, see Neil Hamilton, The Profession and Professionalism
Are Dead?: A Review of Thomas Morgan, The Vanishing American Lawyer, 20 No. 2 PROF. LAW. 14 (2010)
(hereinafter MORGAN, THE VANISHING AMERICAN LAWYER).
30. Morgan, Conference on Legal Ethics, supra note 29, at 976.
31. MORGAN, THE VANISHING AMERICAN LAWYER, supra note 29, at 71–128.
32. Morgan, Conference on Legal Ethics, supra note 29, at 962.
33. Id.
34. MORGAN, THE VANISHING AMERICAN LAWYER, supra note 29, at 25, 127.
35. Robert L. Nelson, Professionalism from a Social Science Perspective, 52 SANTA CLARA L. REV. 473,
479 (2001).
36. Robert L. Nelson & David M. Trubek, Arenas of Professionalism: The Professional Ideologies of
Lawyers in Context, inLAWYERS’ IDEALS/LAWYERS’ PRACTICES: TRANSFORMATION IN THE AMERICAN LEGAL
PROFESSION 180 (1992).
37. Id. at 185.
38. Robert L. Nelson & David M. Trubek, New Problems and New Paradigms in Studies of the Legal Profession, in LAWYERS’ IDEALS/LAWYERS’ PRACTICES: TRANSFORMATION IN THE AMERICAN LEGAL PROFESSION 14
(1992).
39. Id.
40. Rob Atkinson, A Dissenter’s Commentary on the Professionalism Crusade, 74 TEX. L. REV. 259, 263
(1995). See also Sam Levine, Faith in Legal Professionalism: Believers and Heretics, 61 MARYLAND L. REV.
217 (2002).
41. See Neil Hamilton, Foreword: Understanding the Intersection of Business and Legal Ethics, 2 U. ST.
THOMAS L.J 781, 788 (2004) (analyzing Atkinson’s work); Rob Atkinson, The Foundations of Neoclassical
Professionalism in Law and Business (2013), available at http://papers.ssrn.com/sol3/
papers.cfm?abstract_id=2170501 (arguing for a neo-classical professionalism based on lawyers knowing and serving the common good).
42. MONROE FREEDMAN & ABBE SMITH, UNDERSTANDING LAWYERS’ ETHICS 23–25 (3d ed. 2004).
43. Robert Cochran, Professionalism in the Postmodern Age: Its Death, Attempts at Resuscitation, and
Alternate Sources of Virtue, 14 NOTRE DAME J.L. ETHICS & PUB. POL’Y 305 (2000).
44. See Terrell & Wildman, infra note 77.
45. Robert E. Rodes, Jr., Professionalism and Community: A Response to Terrell and Wildman, 41 EMORY
L.J. 485, 486 (1992).
46. Kenneth L. Penegar, The Professional Project: A Response to Terrell and Wildman, 41 EMORY L.J.
473, 484 (1992).
47. Warren E. Burger, The State of Justice, 70 A.B.A. J. 62, 2 (1984).
48. Warren E. Burger, The Decline of Professionalism, 63 FORDHAM L. REV. 949, 949 (1995).
49. Id. at 952–53.
50. Id. at 953.
51. Id. at 953–57.
52. RICHARD A. POSNER, OVERCOMING LAW 63 (1995).
53. Richard A. Posner, Professionalisms, 40 ARIZ. L. REV. 1, 5, 10 (1998).
54. Id. at 11.
55. POSNER, supra note 52, at 63–68.
56. Id. at 92–93.
Published in The Professional Lawyer, Volume 22, Number 1, ©2013 by the American Bar Association. Reproduced with permission. All
rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an
electronic database or retrieval system without the express written consent of the American Bar Association.
22
ABA Center for Professional
Responsibility
The Professional Lawyer Volume 22, Number 1
2013
57. Susan Daicoff, Articles Lawyer, Know Thyself: A Review of Empirical Research on Attorney Attributes
Bearing on Professionalism, 46 AM. U. L. REV. 1337 (1997).
58. Id. at 1340; see also Susan Daicoff, Asking Leopards to Change Their Spots: Should Lawyers Change?
A Critique of Solutions to Problems with Professionalism by Reference to Empirically-Derived Attorney Personality Attributes, 11 GEO. J. LEGAL ETHICS 547, 549 (1998).
59. Daicoff, supra note 57, at 550–51.
60. Id. at 1341.
61. Id. at 1409.
62. Id. at 1410.
63. Id. at 1421.
64. Gerald J. Postema, Self-Image, Integrity, and Professional Responsibility, inDAVID LUBAN, THE GOOD
LAWYER 286 (1983).
65. Id. at 288.
66. Id. at 307. See also Daisy Hurst Floyd, The Authentic Lawyer: Merging the Personal and the Professional, in ESSENTIAL QUALITIES OF THE PROFESSIONAL LAWYER 19 (ed. Paul Haskins 2013) (arguing that
each student’s goal should be to develop over a career through dialogue in relationships and habits of
reflection to live authentically by holding on to personal values and goals while integrating the ideals
and core values of the profession); Barry Sullivan & Ellen Podgor, Respect, Responsibility and the Value
of Introspection: An Essay on Professionalism, 15 NOTRE DAME J.L. ETHICS & PUB. POL’Y 117 (2001) (arguing for the importance of the lawyer’s moral core values, responsibility for others, and constructive
introspection).
67. Id.
68. Id. at 310.
69. David Luban, The Adversary System Excuse, inLEGAL ETHICS AND HUMAN DIGNITY 19–64 (2007)
(originally published in THE GOOD LAWYER: LAWYERS’ ROLES AND LAWYERS’ ETHICS (1984)).
70. Id. at 63.
71. David Luban, How Must a Lawyer Be? A Response to Woolley and Wendel, 23 GEO. J. LEGAL ETHICS
1101, 1116–17 (2010).
72. David Luban, The Social Responsibilities of Lawyers: A Green Perspective, 63 GEO. WASH. L. REV.
955, 955 (1995).
73. JACK L. SAMMONS, LAWYER PROFESSIONALISM (1988).
74. Id. at 3.
75. Id. at 3–4.
76. Id. at 5–6, 55.
77. Timothy Terrell & James Wildman, Rethinking Professionalism, 41 EMORY L.J. 403, 424-431 (1992).
78. Id.
79. ANTHONY KRONMAN, THE LOST LAWYER (1993); see alsoMARY ANN GLENDON, A NATION UNDER
LAWYERS (1994).
80. KRONMAN, supra note 79.
81. Id.
82. Burnele V. Powell, Lawyer Professionalism As Ordinary Morality, 35 S. TEX. L. REV. 275, 278 (1994).
83. Id. at 279–80.
84. Id. at 280.
85. Id.
Published in The Professional Lawyer, Volume 22, Number 1, ©2013 by the American Bar Association. Reproduced with permission. All
rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an
electronic database or retrieval system without the express written consent of the American Bar Association.
23
ABA Center for Professional
Responsibility
The Professional Lawyer Volume 22, Number 1
2013
86. John C. Buchanan, The Demise of Legal Professionalism: Accepting Responsibility and Implementing
Change, 28 VAL. U. L. REV. 563, 579 (1994).
87. Id.
88. Id. at 574.
89. Daniel R. Coquillette, Professionalism: The Deep Theory, 72 N.C. L. REV. 1271, 1273 (1994).
90. Id. at 1273–74.
91. Id.
92. Fred C. Zacharias & Bruce A. Green, Reconceptualizing Advocacy Ethics, 74 GEO. WASH. L. REV. 1
(2005).
93. Id. at 32.
94. Id.
95. Fred C. Zacharias, Reconciling Professionalism and Client Interests, 36 WM. & MARY L. REV. 1303,
1317–18 (1995).
96. Deborah L. Rhode, Professionalism, 52 S.C. L. REV. 458, 459 (2001).
97. Id. at 463.
98. Deborah L. Rhode, The Professionalism Problem, 39 WM. & MARY L. REV. 283, 289 (1998).
99. Rhode, supra note 96, at 463.
100. DEBORAH RHODE, IN THE INTERESTS OF JUSTICE (2000).
101. Rhode, supra note 98, at 315–16.
102. Id. at 317.
103. Id. at 320.
104. Id. at 322.
105. Roger Cramton, Delivery of Legal Service to Ordinary Americans, 44 Case W. Res. L. Rev. 531, 605,
611 (1994).
106. WILLIAM SIMON, THE PRACTICE OF JUSTICE: A THEORY OF LAWYERS’ ETHICS (1998).
107. Id.
108. David Wilkins, Beyond “Bleached Out” Professionalism, inETHICS IN PRACTICE (Deborah Rhode ed.
2000).
109. Id. at 209.
110. Id.
111. Id. The assertion that professionalism requires an integration of personal and professional identities is validated by interviews with exemplary attorneys conducted by Hamilton and Monson, supra
note 14.
112. Id. at 211.
113. W. Bradley Wendel, Morality, Motivation and the Professionalism Movement, 52 S.C. L. REV. 557,
599–601, 608 (2001).
114. Id.
115. Id.
116. W. Bradley Wendel, Professionalism as Interpretation, 99 NORTHWESTERN L. REV. 1167 (2005).
117. W. Bradley Wendel, Should Law Schools Teach Professional Duties, Professional Virtues, or Something Else: A Critique of the Carnegie Report on Educating Lawyers, 9 U. ST. THOMAS L.J. 497, 498, 540
(2011).
118. LYNN MATHER, CRAIG A. MCEWEN & RICHARD J. MAIMAN, DIVORCE LAWYERS AT WORK: VARIETIES OF
PROFESSIONALISM IN PRACTICE (2001).
Published in The Professional Lawyer, Volume 22, Number 1, ©2013 by the American Bar Association. Reproduced with permission. All
rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an
electronic database or retrieval system without the express written consent of the American Bar Association.
24
ABA Center for Professional
Responsibility
The Professional Lawyer Volume 22, Number 1
2013
119. Id. at 6.
120. Id.
121. Id. at 165.
122. Id.
123. Id. at 165–66.
124. Id. at 173.
125. Christopher J. Whelan, Ethical Conflicts in Legal Practice: Creating Professional Responsibility, 52
S.C. L. REV. 697, 717 (2001). Whelan notes in a 2012 empirical article that some in-house counsel are
imposing ethical standards on outside counsel through the contract for representation on matters like
litigation policy, diversity requirements and conflicts of interest. Christopher J. Whelan & Neta Ziv,
Privatizing Professionalism: Client Control of Lawyers’ Ethics, 80 FORDHAM L. REV. 2577 (2012).
126. Id.
127. Id. at 718.
128. Id. at 719.
129. Melissa L. Breger, Gina M. Calabrese & Theresa A. Hughes, Teaching Professionalism in Context:
Insights from Students, Clients, Adversaries, and Judges, 55 S.C. L. REV. 303, 306 (2003).
130. Id. at 312.
131. Id. at 306.
132. Lawrence S. Krieger, The Inseparability of Professionalism and Personal Satisfaction: Perspectives
on Values, Integrity and Happiness, 11 CLINICAL L. REV. 425, 427–29 (2005).
133. Id. at 429.
134. Id. at 431–32.
135. Calvin G.C. Pang, Introductory Remarks to Professionalism and Personal Satisfaction, 11 CLINICAL
L. REV. 405, 405 (2005).
136. Id.
137. Id. at 406–07.
138. Id. at 407–08.
139. Id. at 408.
140. Id. at 409.
141. STUCKEY, supra note 12.
142. Id. at 5.
143. Id. at 73.
144. Id. at 59–67.
145. Majorie M. Shultz & Sheldon Zedeck, Predicting Lawyer Effectiveness: Broadening the Basis for
Law School Admission Decisions, 36 LAW & SOC. INQUIRY 620, 630, 639 (2011).
146. Id. at 24–25.
147. Id. at 25.
148. Id. at 26–27.
149. WILLIAM HENDERSON, EFFECTIVE LAWYER PROFILE (2009) (on file with author).
150. Id. Stuckey, Schultz/Zedeck and Henderson fail to define professionalism explicitly, but their
data on the capacities and skills of an effective lawyer align with the elements of professionalism.
151. Anthony E. Davis, Regulation of the Legal Profession in the United States and the Future of Global
Law Practice, 19 No. 2 PROF. LAW. 1, 1 (2009).
152. Id.
Published in The Professional Lawyer, Volume 22, Number 1, ©2013 by the American Bar Association. Reproduced with permission. All
rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an
electronic database or retrieval system without the express written consent of the American Bar Association.
25
ABA Center for Professional
Responsibility
The Professional Lawyer Volume 22, Number 1
2013
153. Id. at 8–9.
154. Patrick E. Longan, Teaching Professionalism, 60 MERCER L. REV. 659, 665–69 (2009).
155. Richard K. Greenstein, Against Professionalism, 22 GEO. J. LEGAL ETHICS 327, 328 (2009).
156. Id.
157. Id. at 328–29.
158. Id. at 356–57.
159. Amy Timmer & John Berry, The ABA’s Excellent and Inevitable Journey to Incorporating Professionalism in Law School Accreditation Standards, 20 No. 1 PROF. LAW. 1, 11 (2010).
160. Id. at 12.
161. Carole Silver, Amy Garver & Lindsay Watkins, Unpacking the Apprenticeship of Professional Identity and Purpose: Insights from the Law School Survey of Student Engagement, 17 J. LEGAL WRITING INST.
373, 399–400 (2011).
162. Id. at 401.
163. Id.
164. Eli Wald & Russell G. Pearce, The Obligation of Lawyers to Heal Civic Culture: Confronting the
Ordeal of Incivility in the Practice of Law, 34 U. ARK. LITTLE ROCK L. REV. 1, 52 (2011). Note that this view
is a shift from Pearce’s earlier view that efforts to define professionalism are futile in the face of the
ongoing professionalism-business paradigm shift. See Russell G. Pearce, The Professional Paradigm
Shift: Why Discarding Professional Ideology Will Improve the Conduct and Reputation of the Bar, 70 N.Y.U.
L. REV. 1229 (1995).
165. Wald & Pearce, supra note 164, at 3.
166. Id. at 5.
167. Id. at 42–43.
168. Eli Wald & Russell Pearce, Making Good Lawyers, 9 U. ST. THOMAS L.J. 402, 411, 432 (2011).
169. Hamilton & Monson, Positive Empirical Relationship, supra note 14.
170. Id. at 143–52.
171. Id.; see also Hamilton, Assessing, supra note 13; Hamilton, Defined, supra note 13.
172. Hamilton & Monson, Exemplary Lawyers, supra note 14.
173. Id.
174. Nicola A. Boothe-Perry, Standard Lawyer Behavior? Professionalism as an Essential Standard for
ABA Accreditation. 42 NEW MEXICO L. REV. 33 (2012).
175. Id.
176. Id.
177. ROBERT VISCHER, MARTIN LUTHER KING JR. AND THE MORALITY OF LEGAL PRACTICE: LESSONS IN LOVE
AND JUSTICE 293-304 (2013).
178. Robert K. Vischer, Big Law and the Marginalization of Trust, 25 GEO. J. LEGAL ETHICS 165, 166
(2012). See also Stephen Gillers, 2011 Michael Franck Award Acceptance Speech, 21 PROF. LAW. 6, 31
(2011) (emphasizing also the importance of a professional identity with core values that engender
trust).
179. Vischer, supra note 178 at 167.
180. Id. at 201–05.
Published in The Professional Lawyer, Volume 22, Number 1, ©2013 by the American Bar Association. Reproduced with permission. All
rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an
electronic database or retrieval system without the express written consent of the American Bar Association.
26
ABA Center for Professional
Responsibility
The Professional Lawyer Volume 22, Number 1
2013
181. Robert K. Vischer, Legal Advice as Moral Perspective, 19 GEO. J. LEGAL ETHICS 225 (2006). For a
contrary view, see Stephen L. Pepper, The Lawyer’s Amoral Ethical Role: A Defense, A Problem, and Some
Possibilities, 11 AM. B. FOUND. RES. J. 613 (1986) (providing a justification for the lawyer’s amoral ethical
role; in other words, arguing that the values client autonomy and equal access to counsel necessitate
the absence of moral dialogue in the attorney-client relationship).
Published in The Professional Lawyer, Volume 22, Number 1, ©2013 by the American Bar Association. Reproduced with permission. All
rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an
electronic database or retrieval system without the express written consent of the American Bar Association.
27