The Professionalism Crisis and Core Values

[Guest Blogger Michael S. Ariens's posts on his new book, The Lawyer's Conscience, continues.  DRE]

At its 1983 annual meeting, the ABA promoted a "Presidential Showcase" on the subject of the lawyer's professional independence. The panelists largely concluded that such independence was diminishing. The lawyer's desire for independence from clients was being replaced by "commercialism," the "basic posture of 'my client, first, last, and always.'" The triumph of the client's interests over the lawyer's duty to the public generated what was called the "professionalism" crisis. In his last column for the ABA Journal, President Morris Harrell inveighed against commercialism. He urged lawyers embrace professionalism, which he defined as "involv[ing] acceptance of high ethical standards, which generally include a dedication to public services for the benefit and protection of society that looks beyond the mere earning of a livelihood." The importance of the topic led the ABA to showcase another panel on lawyer independence at its 1984 annual meeting. In between those showcases, Chief Justice Warren Burger spoke to the ABA at its February 1984 Midyear meeting about a loss of professionalism. The ABA responded to Burger's speech by creating a Committee on Professionalism. That committee issued a Report, known as the Stanley Report, recommending a recovery from this loss.

In 1988, the ABA's Tort and Insurance Practice Section (TIPS) adopted a "Lawyer's Creed of Professionalism," At the same meeting the ABA agreed to send to its members a "Lawyers' Pledge of Professionalism." As of 1990, "forty-five states ha[d] issued formal reports on lawyer professionalism." The ABA and state bar associations were joined in the professionalism crusade by the Conference of Chief Justices, which issued a "National Action Plan" on professionalism in 1999.

These efforts (and others) emphasizing the lawyer's duty to meet the tenets of professionalism were spurred by fears of economic insecurity and decline. The lawyer income premium over the median worker dropped significantly. Lawyers in private practice were "sorted" into those representing individuals and those representing corporations and other organizations. They were further sorted as legal specialization narrowed more finely the work of lawyers. With the notable exception of some personal injury lawyers, the income of those who ordinarily represented individuals stalled. The income of lawyers who represented organizations increased, but remaining a well-paid member of firm serving corporations became less secure for those other than "rainmakers" (a newly-coined term). Additionally, elite lawyers regularly wrote bemoaning the consequences of "rapid change" in technology and society, which generated an anxiousness regarding their status.

The professionalism crisis has arguably continued through the present. At the very least, it lasted until the turn of the millennium. In a 2015 count, 123 courts and lawyer organizations had adopted a civility or professionalism creed. If lawyers truly faced a professionalism crisis, the organizational adoption of creeds was a useful but insufficient response. An additional response began during the late 1990s. The ABA looked to identify the professional ideals all (or at least many) lawyers acknowledged. What were the profession's "core values"?

Although today the phrase "core values" is commonly used by private organizations, universities, and other institutions, particularly when an employee is charged with behaving contrary the employer's values, the phrase was not used within the legal profession until the publication in 1990 of an article titled The Future of the Legal Profession, written by Geoffrey Hazard, the most prominent American legal ethics expert of the era. Soon after Hazard's article was published, an important ABA Task Force listed four "fundamental values of the profession," which both overlapped and underdetermined such values.

At the end of the decade, two issues brought the question of core values back to the forefront of the ABA's work. First, the American Institute of Certified Public Accountants announced its intention to adopt a "vision statement" encouraging accountants to undertake work lawyers believed was in their domain. This led to a committee to assess whether law firms should be permitted to offer multidisciplinary practice, services that included both law and non-legal services in an institution owned by lawyers and non-lawyers alike. Second, the ABA created a committee to review the 1983 Model Rules and suggest amendments.

The ABA eventually rejected a proposal by the Multidisciplinary Practice Commission, which included the influential Hazard as a member, to permit multidisciplinary practice. It did so even though the Commission declared its recommendation fully protected the "core values of the legal profession." In 2001, the committee reviewing the Model Rules proposed two major amendments permitting a lawyer to disclose a client's confidential communication. The proposal was defeated after its opponents claimed they were the steadfast defenders of the profession's core values.

By early 2002, Enron and other high-flying businesses were bankrupt, and the ABA was engaged in damage control. It had created a Task Force to reassess the circumstances in which a lawyer might disclose a client's confidential communication. When the ABA debated in 2003 the proposed adoption of rules killed in 2001, proponents and opponents used the language of core values in attempting to persuade the undecided. This included comments made by two future ABA presidents, who voiced opposing views. Though they disagreed, both agreed that their position best protected the core values of the profession. Core values was an empty vessel, sufficiently capacious to store whatever struck a lawyer's fancy.