Academic journal article Journal of Appellate Practice and Process

Toward a Community of Professionalism

Academic journal article Journal of Appellate Practice and Process

Toward a Community of Professionalism

Article excerpt


Many judges and lawyers in the United States believe there has been a serious decline of professionalism in the conduct of litigation. And the professionalism they have in mind does not reflect academic debates on that subject, but rather the everyday concerns and frustrations of judges and practitioners. There are constant complaints that lawyer advocates engage in too much posturing and invective, too little cooperation and courtesy, too many unnecessary proceedings, and too much exaggeration or outright misstatement of fact and law.

To conduct litigation "professionally" in this sense means to abide by the rules and ideals of the adversarial system, some of which are identified later in this article. The best analogy, therefore, is the concept of sportsmanship. Like professionalism in competitive advocacy, sportsmanship demands not merely compliance with official rules but also adherence to ideals about grace in athletic competition -- even when it involves violent physical clashes. Rules and ideals about the conduct of warfare also come to mind as an analogy to professionalism in this sense, but the analogy is too belligerent for present purposes.

Nor is "civility" an adequate synonym, in the familiar usage equating civility "with decorum, with temperateness of speech, with politeness and a high-minded determination not to descend from principles to personalities." (1) While civility of that kind is a critical element of the professionalism that judges and lawyers find lacking, the two terms are not interchangeable. Most significantly, the concept of professionalism includes rules and ideals about the content of advocacy, not merely its manner. Thus, for example, no matter how gracious advocates may be in their speech or writing, they would still violate the dictates of professionalism by misstating or failing to disclose important precedents.

It is extremely difficult, of course, to measure the actual level of professionalism in advocacy today, let alone compare it to some earlier time. Nevertheless, there is undeniable evidence of a widespread perception of decline in this kind of professionalism. The American Bar Association's Center for Professional Responsibility keeps a tally of professionalism and civility codes in American jurisdictions. (2) As of this writing there were no fewer than 136 of such codes on the ABA's web site. (3) Even more remarkably, the overwhelming majority of those codes were adopted in the last ten years. (4) The numbers and timing evidence an acute national concern about this kind of professionalism.

Unfortunately, the ABA's web site fails to report whether these new codes are making a difference. Experience suggests not. If anything, they appear more effective at generating sanctions litigation than raising professionalism. (5) Nevertheless, codes and sanctions have been the main response of our legal system to this serious problem.

This article proposes a new strategy. While its inspiration is the English barrister tradition, consider first a prominent American sociologist. Amitai Etzioni began a recent book by citing a code of sexual civility adopted by Antioch College in 1992. (6) The code represented "a lengthy, detailed, written list of instructions that students, faculty, and staff [were] expected to follow when they proposition[ed] each other." (7) But Etzioni wrote that the main value of this "near-desperate attempt to restore rules of conduct" (8) was not its likelihood of success, which he regarded as slight despite the threat of sanctions up to expulsion. (9) Rather, he saw the code as evidence of a social problem more profound than sexual misconduct--the lack of such basic shared values as mutual respect. As Etzioni put it, the promulgation of the Antioch code "point[ed] to the need for an approach to the regeneration of moral values and commitments that is markedly different from enforced codes." (10)

Etzioni's prescription is to strengthen people's identification with a community (defined as "a web of affect-laden relationships" (11)) that shares and reinforces the desired values. …

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