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Professionalism: It's More than Being Ethical

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Professionalism: It's More than Being Ethical

This course is designed to teach young and aspiring lawyers the importance of professionalism. The legal profession is a noble profession in which lawyers represent the interests of their clients, but the manner in which lawyers converse with each other is critical to the success of the profession. The best compliment a lawyer can get is a future referral from a former adversary. Professionalism drives this result.

Presenters

Larry Kunin
Partner
Morris, Manning, & Martin, LLP

Transcript

Larry Kunin: Hello, this is Larry Kunin of the law firm of Morris, Manning & Martin located in Atlanta, Georgia. And it is my pleasure today to present Professionalism for Lawyers. To give a little bit of background on myself, I've been an attorney for approximately 25 years. Beginning my practice in Miami, Florida, in an all-litigation firm, which is now known as Day Pitney. For the last 21 years, I've been at Morris, Manning & Martin in Atlanta, all-litigation work, which means that I get to deal with trial judges. I get to deal with appellate judges and numerous opposing counsel, including in-dispute resolution and negotiation matters. In addition to my experience as a practitioner, I've also served as an adjunct professor at Emory Law School, which included elements of professionalism. I'm a member of several Florida Bar committees that also include many professionalism elements to it, and I've spoken frequently to students and attorneys alike with regard to the aspiration to be professional.

  As an initial matter, it is very important that attorneys understand that there is a big distinction between being an ethical attorney and a professional attorney. Ethics is something that attorneys will learn in law school. They will likely need to take an ethics exam. They will need to agree to various state bar ethical rules. Sometimes, they are called the rules of professional conduct, not to be confused with the word professionalism. Attorneys who, for example, appear out of state, appear in different courts, may even need to sign documents asserting that they have in fact learned with the ethical rules. Professionalism sits on top of that. A lot of what I'm going to present today rely on the Georgia rules simply because I live and work in Georgia, and also the Florida rules due to my involvement in Florida. But the rules that I am going to cover apply in just about every state, and I will also be referring to certain ABA, American Bar Association Model Rules of Ethics.

  Again, those are ethical rules, not professionalism rules. During the course of this hour, we are also going to talk about guidelines for professionalism that do exist in written form in some certain states. They are generally rules that are enacted by state bar organizations, as opposed to Supreme Court, for example, or a requirement to become a barred lawyer. They are rules that are aspirational but are expected. This is especially for litigators because we have to deal with judges in courts who generally do not have a tolerance for lawyers who are not professional with each other or the court. It's still important for corporate lawyers and transactional lawyers because they are still dealing with an opponent and they are still trying to serve their client while serving the profession of the practice of law. I'm going to start this presentation by reading a quote from the former chief justice of the Georgia Supreme Court, Harold Clarke.

  And he said, quote, "The idea that ethics is a minimum standard, which is recall of all lawyers, while professionalism is a higher standard expected of all lawyers," unquote. That may sound like a partial quote, which it is, but the point of it is, is that ethics is the minimum standard which means this is what a lawyer is supposed to do, while professionalism is a higher standard which essentially says, "Treat others with respect and expect that they will treat you with respect, as well." So, exactly what I mean by this distinction is that the rules of professional conduct, which are also called the rules of ethics, establish minimum standards of conduct but they do not define the criteria for the actual behavior of the lawyers between themselves and with the court or any other third party, as the case may be. Acting lawfully or within the bounds of the codes of ethics is measured by honesty, integrity, and fairness. Professionalism, which sits on top of ethics, is measured by respect, dignity, compassion, courtesy.

  Probably everybody who has encountered the practice of law have heard the terms, "I want a lawyer who's a bulldog or lawyers who take on the persona of their client, and carrying their client's interest forward and almost identify themselves with the client." Well, this is actually proper to an extent. In fact, there is an ethical rule that says it is a lawyer's job to zealously represent the interests of their client. However, there still are boundaries on how you do that with regard to respect to the opponent. Speaking for myself, I can give numerous stories of where I have been referred lawsuits, or I have referred lawsuits, to lawyers who are a former opposing counsel. This is one of the greatest compliments a lawyer can get. It means, you did a terrific job for your client and you are very professional in the ability to do so, and in carrying out your duties for the client, such that the other lawyer created or had respect for you and was willing to then give future cases to you.

  Again, being professional to your opposing counsel is not only expected, it actually could benefit your career. So, to understand professionalism, since it sits on top of ethics, there are certain basic ethical rules that an attorney should understand. Rule number one... And this is in the preamble of the Georgia Rules of Professional Conduct, but you'll also find it in the preamble of the American Bar Association Model Rules and the rules of many states. Number one, "A lawyer is a representative of clients, an officer of the legal system, and a citizen having special responsibility for the quality of justice." 2A, "As an advisor, a lawyer provides a client with an informed understanding of the client's legal rights and obligations and explains their practical implications." 2B, "As an advocate, a lawyer zealously asserts the client's position under the rules of the adversary system." Preamble 2C, "As a negotiator, a lawyer seeks a result advantageous to the client, but consistent with the requirements of honest dealing with others."

  Preamble 2D, "As an intermediary between clients, a lawyer seeks to reconcile their divergent interests as an advisor, and to a limited extent, he or she is a spokesperson for each client." Preamble E, "As an evaluator, the lawyer examines a client's legal affairs and reports about them to the client or to others." Importantly, the rules of ethics apply to any lawyer, regardless of who their employer is whether it's a sole practitioner, a partnership, a large law firm, a multinational law firm, or even in-house counsel. There was a presentation I once gave to a large multinational corporation to an in-house department, and the topic was certain ethical obligations of a lawyer that are not an issue in this particular presentation. But to set the stage, I asked the approximately 75 in-house lawyers that were present, how many of them worked for a law firm? Not a single hand went up in the air. The answer actually is every single one of them worked for a law firm.

  In the in-house counsel context, the client is considered to be the legal corporate entity. And that is important for purposes of grounding that lawyer into the rules of ethics and then professional conduct on top of it. There's an important distinction here, as well. A corporation is made up of individuals, people that somebody reports to, vice presidents, chief financial officers, general counsel, sales people, maybe developers. The client is not the corporation's individual officers, directors, shareholders, or employees. The client is the entity itself. That would open up a different topic on how a lawyer deals with that and conflicts of interest. But the point for purposes of this presentation is simply to understand that the individuals in a corporation are not the client. The corporation and the interests of the client is what is important. For a specific reference, the rules of ethics of just about every state and the ABA model rules, and this is included in your materials, rule 1.0 usually covers terminology.

  A firm or a law firm is defined as a lawyer or lawyers in a partnership professional corporation, sole proprietorship or other association authorized to practice law, or lawyers employed in a legal services organization or the legal department of a corporation or organization. That is the hook that brings every practicing lawyer into the rules of ethics and the desire to be professional. Part three of the preamble states, "A lawyer should, A, be competent, prompt, and diligent. B, maintain communication with a client concerning the representation. C, keep in confidence information relating to representation of a client." And then, point four, "A lawyer should demonstrate respect for the law, the legal system, and those who serve it, including judges, other lawyers, and public officials." I want to pause on that point four. Everything I've read in the preamble is in some shape or fashion in the actual rules of ethics themselves with further detail. Point number four raises an issue of respect, respect for law, the legal system, and for those who serve it, including judges, other lawyers, and public officials. That's the one thing that touches on the need for professionalism.

  The preamble then continues with the point five. And this point, it's sort of a mix of ethical obligations as well as implicit professionalism within it. Point five says, "A lawyer as a citizen and member of a learned profession has multiple responsibilities. Improvement of the law and administration of justice. Cultivation of law beyond its use for clients. Strengthening of legal education. Being mindful of deficiencies in the administration of justice necessitating the devotion of professional time and civic influence to those who cannot afford adequate legal assistance." That last point may sound like it's solely going to what we call pro bono or service to people who cannot afford legal services. But it also goes to the fact that we do not have a perfect system, and it is up to lawyers to try to make the system as perfect as we can. This will include ethics, service to the community, and once again, the keyword, professionalism. And then, finally, the preamble talks about aspirational goals, which is that a lawyer is guided by conscience and the approbation of professional peers.

  The goals include, attain highest level of skill, improve the law and the legal profession, and exemplify the legal profession's ideals of public service. Now, turning more to a pure professionalism topic. As mentioned earlier, there are no specific rules that apply to professionalism, similar to the rules of ethics. Rather, professionalism ideals arise from many different sources. They arise from state supreme courts. They arise from commentary from the federal courts. They arise from bar guidance rules. They arise from orders of court. They arise from your own conscience. They arise from your own experience. Next, I would like to go into some lawyer creeds, and I'm going to be using this Georgia Supreme Court as an example. First, I'd like to go into some background stories and examples of what professionalism is, so that you could see how the creeds line up. I was one of the fortunate lawyers, amongst thousands and thousands, that had a really good mentor, who the very first day on the job said, "You need to understand what professionalism is, and you need to understand that your opposing counsel is not your enemy."

  "They are the advocate for their client, but they are not your enemy and you are not to treat them as your enemy. They are somebody who you may need a favor from one day. So, you should be open to giving favors to them, as well. And the best way to get along with your opposing counsel and become friends with your opposing counsel is to actually talk to them and meet them." What I found in my career is that email is the root to all professionalism ruthlessness. And what I mean by this is people think that email is a substitute for a conversation, when it is not. Email is a substitution for a writing. People will say things in an email, intending it one way and instead, it comes out callously the other way. The other part or problem with an email is that email is impersonal. Now, to be clear, email is not something to be avoided. Email is a very useful tool. Email is a very good way to reach an opposing counsel or a colleague very quickly. Maybe they're not available. Maybe it's just a quick question.

  However, it is best that the email be used after there has already been some type of introduction. Even on the telephone, sometimes, it can be difficult to get along with an opposing party but it is more personal than an email. The best way is to meet somebody in person. Now, this particular presentation is being given when we are still coming out of the COVID-19 pandemic, and that has been a blockade for a lot of people to meet with each other. You can't, or for a period of time, fly in an airplane to an out-of-town meeting. Your offices may have been closed. There might be restrictions in meeting somebody at a restaurant. I know that my firm, when we received limited access in the middle of last year, we were not allowed to use conference rooms. We were not allowed to have people in our offices. So, it made things very difficult. A substitute was Zoom. And Zoom, whether everybody likes it or not, and I believe that most people like it, is here to stay.

  And when I say Zoom, I mean, WebEx and Microsoft Meets and anything of a similar nature that you may use. And why this is a useful tool is you still get to see somebody, you get to see them as a person. Even though it's not a professionalism point, it's ironic that there are clients, as a result of the electronic Zoom/WebEx world, that I have now seen their faces, having talked to them for years over the telephone and never actually seen what they looked like because they happen to have been an out-of-town client. Zoom has brought a sense of personality back that didn't exist on telephone alone. And brought also people together, not withstanding the fact that we were separated by COVID. But there is still no substitution for actually getting together with somebody. In my experience, it is mostly young lawyers who are first challenged with professionalism.

  I was one of those young lawyers. I was somebody who, on occasion, had trouble getting along with somebody because of how strongly I thought I needed to prove myself as a lawyer, and show how much I knew about the case, about my client's case, about why the other side was wrong, sometimes, leading even to raise voices between counsel. Today, I find some of those situations embarrassing, and I find almost all of those situations educational. So, let me give you some examples of things that occurred, especially when I was a young lawyer. They still exist to an extent, even today, after 25 years of practice, but they give an example of things that lawyers can do for each other to make things easier. There was a lawyer that I knew in North Carolina, an opposing counsel on a case that I thought was fairly clear cut, that I had a very hard time getting along with when we would get on the phone and then we would send emails. And every now and then, the emails would tend to get a little angry, mostly, on my part.

  And then, one day, he came into town for a deposition and he was one of the friendliest, most professional, smart and quick lawyers I have ever met. When the whole deposition was over, I remember calling him into the next conference room, and I told him, and his name was Rob, I said, "Rob, completely, off the record, and if you want to put it on the record, that's okay too. I just wanted to thank you for what I found to be a very enjoyable experience in a deposition that was professional. Getting what we needed to out of the witness. Representing our opposing clients." And from that moment forward, not only did we have a terrific relationship, but Rob became one of the lawyers who sent me a couple cases and I sent him a couple cases. We got together, the last time I was in North Carolina, maybe 10 years later, shortly before COVID hit. We sat down and we had dinner, and had a terrifically enjoyable experience, all because we ultimately recognized we are part of an honorable profession and learned how not to take anything personally.

  Another example I will tell is there was a lawyer back, probably, in the middle of my career, maybe the earlier part of his career. He was located in the state of Florida, I was up here in Atlanta. And a senior partner of his were having a very difficult time getting along because of not just the polarity of our clients, but they represented, at the time, a fairly large client. And I represented an individual who basically, the attorney's fees were just about killing him, and it led to some hard feelings. When that lawyer came in town for a deposition, and it was on a Sunday, I called him up before he left town or before he came to Atlanta, before he left Florida, and I said, "Since you're coming in, I already know that you have no plans on Sunday because you don't live here and I'm going to take time off of my Sunday. Can I meet you at a restaurant that was located in the Buckhead area of Atlanta, and just the two of us sit down and talk?"

  Long story short, we got to see each other as people. And as we talk today, he and I have become really good friends. We have served on common committees together. We have traveled together. We share football tickets together. Basically, by humanizing the opposing counsel, we became really good friends and, to the benefit of our clients, we were able to cut through the very next day, the more serious issues in the lawsuit and actually have the entire thing resolved within 24 hours. All it took was time for lunch. Similarly, I had another issue with a lawyer, this time, located in Atlanta. Very difficult time getting along. I had heard a reputation about this lawyer that, frankly, I thought was undeserved about difficulty. I called him up and I said, "Can you and your associate meet me for lunch? I'll come down by your office, so you could walk. We're going to have one rule. One rule only for lunch."

  "That rule is we are not allowed to talk about the case, at all. All we were going to talk about is family, where we came from, where did we go to school? How did we end up in the practice we're in." Very personal conversation, and we left that particular luncheon, having developed an entirely new relationship. Now, that one did not result in a resolution of the lawsuit immediately, thereafter. There was still a lot of activity that needed to occur and did occur, but it became more of a professional level and easier to cut through the issues and present them to the court. That was extraordinarily helpful. Now, I'll give you an opposite story. I'm actually going to give you two opposite stories. And I will not go into, of course, not name anybody, but I had a litigation with a lawyer that was very difficult.

  It was the third lawyer representing my opposing party. The lawyer had a case... Again, the lawyer took over the case from somebody else that was in a state court. We were not willing to further extend the case that had already gone on for numerous years, but we were willing to give some accommodation but not a full annual extension of the case. So, the case was dismissed, refiled in federal court as a whole new case. And that person then moved for an emergency injunction on a case that, at that point, had been several years old. In addition, I was going on vacation immediately before this happened and the last communication I had received on a Friday afternoon... And by the way, as a side note, I personally do not like sending or receiving large demands on Friday afternoon. Nothing is going to happen over a weekend. All you're going to do is cause a lawyer to think about it. Sometimes, it's inevitable. Sometimes, you have a court deadline that is on a Friday and you've got to comply with the court deadline, and you're still working late in the day.

  In this day of e-filing, you can actually file up to midnight in just about any jurisdiction. Sometimes, that just happens and you can't avoid it. But just sending long demand letters that could wait until Monday, there much of a reason to do it on Friday. And if you do, you're probably going to get something back. So anyway, I'm getting ready to go on vacation. And one of the cardinal rules amongst lawyers is I will not disturb your vacation if you don't disturb mine, and we all understand that. Most of us are willing to work around even court schedules that may interfere with vacations. And the last thing that was stated to me on this Friday afternoon, after a very long letter was, "Whatever actions I take, don't worry. They will not interfere with your vacation."

  On Monday of my vacation, I get an email with a brand new complaint that gives me until Wednesday of my vacation to accept service of that complaint. Obviously, that did not go over well with me. I asked for an extension to respond to the new complaint, and I was told no. I'm going to come back to this extension issue a little bit later in this presentation, but I was very surprised that I could not even get what would be a courtesy vacation because I was... I'm sorry, courtesy extension because I was on vacation. So, I filed for, the first and probably only time in my career, a unilateral opposed motion for extension to respond to a complaint that, on top of everything else, was the second lawsuit and a dispute that had a prior history of three years in a state court. We were called to the courtroom.

  I remember the day vividly. Gave our arguments on a substantive issue that had come up. And then, the judge called the lawyers up to the front and had my motion for extension in front of her. Motions for extension are usually perfunctory. They're handled by a magistrate. Maybe a law clerk looks at them. Gives an order to the judge. I had never seen a judge previously, much less a federal judge, pay attention to a motion for extension. The judge had the motion in front of her and asked my opponent to stand in the middle, and the judge basically gave a speech to the lawyer about professionalism, and how the lawyer said that my vacation would not be disturbed. And then, with a big bang of her fist on the bench, said, "First day of his vacation, you sent him a communication giving him two days into his vacation to respond."

  And when she tried to speak, the judge said, "You're not going to speak. You're just going to learn professionalism." This is the kind of thing that should never happen in your career whether you're on one side or the other. Lawyer courtesy is not only something that makes our career easier to do. It not only serves our clients in the long run. But if you lose the confidence of a judge or the anger of a judge over something that should be a matter of simple courtesy, then in the end, you may have inadvertently prejudiced your client, at least, by some kind of bias for being difficult. And that is just a very simple thing to avoid. Another example, and this actually occurred only in the last few months. I had a case that was out of state. It was a case that was ultimately decided to be better off handled by a lawyer who was in another state.

  But initially, we were trying to get the lawsuit worked out. There were some very lengthy, angry communications by email between the lawyers, because I could not get the lawyer to actually set up an appointment to talk to me, leaving email and letters as the only option. And when it became clear that this thing could not be worked out and we made a decision to turn it over to somebody else, the lawyer first said to me, he demands that I withdraw from the lawsuit and get different counsel. That's obviously a very direct insult towards myself and, frankly, towards the profession. It is not up for a party to demand that the other party change counsel just simply because they perceived that that counsel will not buy into their arguments. We decided it wasn't worth the fight. And then, in fact, we would turn the case over to the lawyer that was working with us in the other state.

  And when we made this announcement, or actually I think it was just prior to the announcement, the lawyer sent email that I've got pasted on my wall. And I'm not going to read the entire email, but in the middle of the email was a statement, "I do however wish that you would stay in this case so that I could give you the legal education you sorely need." If any associate who works for me ever writes an email like that, they'll go through some serious training if it doesn't result in actual departure from the law firm. That is no way to talk to a lawyer. And in our particular case, we were actually in the right and that lawsuit does not exist anymore, and I will not go any further into that particular example. But those are bad examples. Back to some good examples. There is a process that's very similar to what I described about the two lawyers that I got together for lunch and worked things out.

  Here, in Atlanta, the Atlanta Bar Association, completely unrelated to the experience that I had, has a contest every year called Meet Your Adversary, or I think it actually means lunch with your adversary. And the encouragement is you have to pick up the phone and call your adverse lawyer and invite them to lunch. And then, when you sit down and you have lunch, then you submit to the Atlanta Bar Association that you, in fact, did so. And for every lunch you have in an adversary, you get entered into a drawing for a gift certificate of which they give out quite a few. The point and the outcome is brilliant. We are in a profession together. Our lawsuits and our corporate deals, they come and go, and clients come and go, but lawyers will always be in the industry. This is not intended to be a political presentation at all, but there are times I wish our politicians would take lessons from lawyers because we, as lawyers, know how to represent the interests of our client.

  At least, the professional lawyers, which is most that I have met. The vast majority that I have met. And we know where to draw the line between representing our client and treating the other side with respect, and talking to them with respect, and treating them with consideration of their opinions. It is something that I wish our politicians would actually take a lead from. A lot of our politicians are lawyers, but when they're politicians, they're not actually in the practice of law. Lawyers actually do a much better job when it comes to meeting your opponent, consulting with your opponent, working things out with your opponent. Now, I'd like to turn to some court-enacted rules in which professionalism is either requested or implicitly required. First, for any practitioner that is practiced in court, there are rules of civil procedure. And within those rules, there will be requirements related to discovery.

  It is almost universal that when it comes to discovery motions, before the filing of a motion, counsel are requested to meet and confer in an attempt to either resolve or narrow the discovery dispute. In that meet and confer, that is the perfect platform for the expression of professionalism. Again, the object is to narrow or resolve the dispute. This is not possible if all the attorneys want to do is be combative. Similarly, if you practiced in federal court, most federal courts, or I say all federal courts, have local rules. So, there is a local rule for the Southern District of Florida. There is a local rule for, or local rules, for the Central District of California. There are local rules for the Northern District of Illinois, and basically every district. Most local rules require that before the filing of any motion with exceptions, the counsel are to meet and confer and then must actually certify in their filing that they, in fact, have met and conferred.

  So, the [inaudible 00:32:27] would it say pursuant to a rule, whatever is the number of the rule, counsel have conferred an attempt to resolve the motion and have been unable to do so, or at least have been able to resolve certain issues but the issues in this motion are not resolved. The only way to accomplish that meet and confer is also professionalism. I'm also going to give you an example of a standing court order, and this is in your materials. The state of Georgia has created what is known as a statewide business court. Courts across the country, states across the country, have created business courts. These are courts that generally have the same power as any other state court, but are specific to business disputes. Georgia is, at least, to my knowledge, the first one that created a statewide court that has concurrent jurisdiction with every district across the entire state.

  That court was established in late 2019. It is still in, what I would call, an upstart stage. But when you file a lawsuit in that court, you will get a standing order. It's called, in your materials, [inaudible 00:33:44] cases assigned to Judge Walter W. Davis, who is currently the judge of the Statewide Court. He is the first judge of the Georgia Statewide Court. You may see similar orders in other courts across the country, especially in federal court... Let me read you some language that is located in paragraph 1A. So, right in the beginning of the order. It's titled, Protocols for Court Proceedings and Interactions between and among the Court and the Parties. So, the court first has a statement about the fact that... There's a dispute here. Sometimes, those disputes can be difficult.

  So, the court says, and I'm quoting now, "Understandably, such disputes are hard-fought and highly contentious, and the potential certainly exists that emotions will run high on occasion. Even so, Judge Davis and his staff take their roles in the judicial process seriously and will do everything in their power to make your experience litigating in the court, a positive one. The end result not withstanding." Well, that's a nice statement from the court, and I've met judge Davis and I can virtually guarantee that that is a 101% true statement. But the paragraph then goes on further. And it says, quote, "The court expects counsel and litigants to take their roles in this process seriously, as well. As such, in the context of hearings, conferences, oral arguments, and the like, interruptions, reactive facial expressions, and other disturbances have no place in this court and will be looked upon with disfavor." That might be the most direct statement I have seen from a court with regard to what it expects from counsel.

  Anybody who has ever seen a judicial-based movie or TV show... I mean, I hate to mention things like The Practice, LA Law, these things are made for TV. And you see people rolling their and dropping pencils on the table, and muttering, "Oh, my God," under their breath, and things like that. These are things that do not work in the real world. And in a worse case scenario, may actually cause the judge to interrupt whatever argument or proceeding is going on in order to give a speech. This is not the way a professional lawyer conducts him or herself. Rather, show deference to the court and opposing counsel. Those people who have taken mood court or been on a mood court team have been taught that in the beginning of the argument, you step in front of the court, and you say, "May it please the court." And you turn to your opposing counsel, and say, "Counsel," and then you proceed with your argument.

  It is a matter of respect, and respect equals professionalism. Now, I'd like to go back to some court direction that is not specifically within an order to the parties, but something more to strive for. Again, I'm going to use an example from the Georgia Supreme Court, although many courts have issued very similar, if you want to call them proclamations or creeds. This was issued in 1992, and to read what it says, and it's a little bit lengthy but it all has meaning. What the Georgia Supreme court stated, as a lawyer's creed, "To my clients, I offer faithfulness, competence, diligence, and good judgment. I will strive to represent you as I would want to be represented and to be worthy of your trust. To the opposing parties and their counsel, I offer fairness, integrity, and civility. I will seek reconciliation and, if we fail, I will strive to make our dispute a dignified one. To the courts and other tribunals, and to those who assist them, I offer respect, candor, and courtesy. I will strive to do honor to search for justice."

  "To my colleagues in the practice of law, I offer concern for your welfare. I will strive to make our association a professional friendship. To the profession, I offer assistant. I will strive to keep our business a profession and our profession, a calling in the spirit of public service. To the public and our systems of justice, I offer service. I will strive to improve the law and our legal system, to make the law and our legal system available to all, and to seek the common good through the representation of my clients." That is the end of the official order from the Georgia Supreme Court. However, the Georgia Supreme Court also issued what are known as General Aspirational Ideals, and those ideals are stated as follows, "To model for others, and particularly for my clients, the respect due to those we call upon to resolve our disputes and the regard due to all participants in our dispute resolution processes."

  "To preserve the dignity and integrity of our profession by my conduct. Good lawyering should be a moral achievement for both the lawyer and the client." "Counsel clients about the value of cooperation as a means towards the productive resolution of disputes." I want to pause on that particular statement. Counseling clients are the value of cooperation. Clients have a very individualized interest in mind, which is their side of the dispute. Clients are not the ones who actually practice in the industry, but it is our job as attorneys to represent those particular interests. It is sometimes a challenge of a lawyer to counsel a client of the need to cooperate with the other side. Because a client will often see the other side, not as the lawyer, but as the party. And the reason they're in a dispute and the first place, or if you're in a corporate deal, that this still applies because in the corporate deal, you might be unable to find common ground on an issue.

  They see that they are in the right and the other side is in the wrong. So, why is there a need for cooperation? Sometimes, it becomes difficult, other times not, to convince client why cooperation and resolution or, at least, an attempt to resolve or being professional is the best avenue. And this, again, will come up with, and I mentioned this a couple times and I'm going to come back to it as I mentioned before, a simple request for an extension of time on something that maybe the client wants you to handle very quickly but, in reality, may take extra time for the lawyer to be prepared, or maybe there's some conflict, or some third party influence that can't be controlled. Let's go back to the aspirational ideals. They continue, "Maintain the sympathetic detachment that permits objective and independent advice to clients." And, that, I would like to pause on very quickly. Sometimes, telling the client because they're your client, you're in the right, and I'm going to do what it takes to push that forward, is not always the best advice for them.

  For example, it is not worth $100,000 of attorney's fees to win a $20,000 case. Sometimes the case law does not support the client. Sometimes the contract does not support the client. It is our job to advise the client as to what their risks are. That's not really professionalism. But it's then making sure that once they understand, you know how to present your side to your opposing party in a way that still draws your client in the best light. Back to the aspirational ideals that go along with what we just discussed, "Communicate properly and clearly with clients. Notify opposing counsel in a timely fashion of any canceled appearance. Grant reasonable requests for extensions or scheduling changes. Consult with opposing counsel in the scheduling of appearances, meetings, and depositions. Treat opposing counsel in a manner consistent with his or her professional obligations and consistent with the dignity of the search for justice. Be courteous and civil in all communications. Respond promptly to all requests by opposing counsel. Avoid rudeness and other acts of disrespect in all meetings including depositions and negotiations."

  Another example, and you will see the guidelines of professional conduct from the Florida Bar and the materials. There is a section regarding scheduling continuances and extensions of time. There are a lot of rules in the guidelines generally, that are important to read. And there are a lot of parts of even this section B that are important to read, but there are a couple things that I want to highlight. Paragraph one says, "Attorneys must and accept an extraordinary circumstances. Communicate with opposing counsel before scheduling depositions, hearings, and other proceedings, and to schedule them at times that are mutually convenient for all interested parties." Going back to what I discussed with vacations, for example, nobody wants to hear about a deposition scheduled in the middle of their vacation, or when they have a child's graduation, or some other personal thing going on, or even a client conflict that simply can be done a week later or at a mutually convenient time. There is also a rule in here or a guideline in here that requests for extension should not be made just simply because you want on to delay. That is considered to be unprofessional.

  Then come two rules that I have found very few lawyers actually know about. When I say rules, I mean guidelines. These are aspirational guidelines. They are in paragraphs eight and nine of that paragraph eight of the Florida Bar Guidelines for Professional Conduct. Paragraph eight says, "A lawyer should exceed to all reasonable requests for scheduling, rescheduling, cancellations, extensions, and postponements, that due not prejudice to client's opportunity for a full, fair, and prompt consideration and adjudication of the client's claim or defense." And paragraph nine continues, "First request for reasonable extensions of time to respond to litigation deadlines whether related to pleadings discovery or motions, ordinarily should be granted between counsel as a matter of courtesy, unless time is of the essence." The reason I find this to be a very difficult guideline is, again, because most people don't know about it.

  And again, because you're trying to serve the interest of your client who may want to move faster than is appropriate than can you do, than opposing counsel can do. And if you'll notice, when I read those guidelines, I did not say that a client should exceed to reasonable request for scheduling, rescheduling, cancellations. I did not say that first request for reasonable expansions of time should be granted between clients. I said, those are things that should be done between lawyers. The bottom line is it's actually up to the lawyer to make that decision, regardless of what their client believes. However, anybody who has been in a client-based service knows that the client still should be consulted, which creates a balance that people are not always cognizant of because they just want to, as a knee jerk, respond to whatever or proceed with whatever the client wants.

  But at the same time, it really is between lawyers. There is a saying that everybody who is listening to us has heard, "What comes around, goes around." If you give that request for extension even over client objection, there will be a time where you need the same extension. Something I've also found surprising the practice of law, and I've mentioned some of these guidelines, I've run into very few lawyers who are actually aware that guidelines like these exist. Unless, they've heard a conference like this, or unless they have been to a Supreme Court seminar, or actually happen to have read certain court orders, very few people know about these because they are not things generally taught about in law school, at least outside of a professionalism class. They are not things that are generally tested on a bar exam. There is not a professionalism exam like there is an ethics exam.

  But these are guidelines that are very important for lawyers to be aware of. And speaking for myself, there's certain ground rules that I establish with opposing counsel right out of the box. It's something that helps reduce stress, I believe, for all lawyers, if all lawyers can actually live by these particular very simple rules. There are deadlines that occur. There are emails that are missed. In the iPhone stage, there are emails that get accidentally deleted by double hitting on your iPhone. There are sometimes calculation errors made when calendaring something. Sometimes, things come up at the last minute that are just beyond our control or opposing parties control, and what I generally tell opposing lawyers in the beginning of a case.

  By the way, I mentioned getting together with opposing counsel, almost every lawsuit that I have, whether I filed it or whether I'm the defendant and I'm responding to it, will start with a phone call from me if it's not an opposing lawyer calling me first, to do nothing more than just simply introduce myself. Say hello. This is who I represent. I want to let you know, you can communicate with me about this particular dispute. And then, I'll also establish some ground rules. The most important one is listen. A court deadline is a court deadline, and we need to comply with court deadlines. But if there is ever a deadline that is not mission critical, a court deadline, I am not the one who's going to hold your feet to the fire. If you have a request for production response that's due to me on a date particular and something happens that day, don't wake up in the middle of the night, and say, "Oh, I missed that deadline. I'm in trouble. I'm going to be in trouble with my client."

  I am not that guy who is going to hold your feet to the fire. Because, again, I know that one day I may need that same courtesy. I am not surprised, at all, that what I mostly hear back from lawyers in response to that is, "That's terrific to hear because I'm exactly the same way." Now, whether that lawyer would've been the same way, I don't know, but we established those ground rules in the beginning and it makes litigating a much easier process and not a 'gotcha' process because I could tell you that judges I know like nothing less than lawyers who basically try to trick somebody and create a 'gotcha' process. Now, going back to in-house counsel issues. If you're an outside lawyer, one of the challenges of dealing with a corporation that has an in-house counsel, which is when I say challenge, there's actually a benefit and a challenge.

  One of the challenges is that you're often twice removed from who is actually the client. Because the in-house lawyer is the direct lawyer representative of the client, which is the corporation and the representatives of that corporation, and then that in-house lawyer will be communicating with the outside lawyer. So, the outside lawyer may not have direct communication with what essentially is the decision maker on the inside. Sometimes, it is the in-house counsel has the decision maker. So, it can sometimes be a challenge when you've got that extra step between who might be the decision maker and the outside lawyer. At the same time, your in-house counsel is often your greatest ally because the in-house counsel, assuming that they are also a professional counsel of which almost, and I shouldn't say almost, I should say every in-house counsel I've dealt with, understands ethics and the rules and guidelines of professionalism.

  They become your advocate to the inside client who may not have as much patience for the legal system and the negotiation process as a lawyer would, so the in-house counsel becomes your advocate. But then, there are certain guidelines that apply to the in-house counsel as well. Let me give you a few of those. In-house counsel obligations will include mental health of their lawyers and staff during a time of crisis. That applies to outside counsel as well, but in-house counsel is dealing with large organizations. Mental health has been an issue recently. Well, I should say always, but has become to the forefront recently, maybe even more so during COVID for a lot of people in the law and beyond, that they need to be aware of. In-house counsel also have obligations of justice in a time of crisis and balancing the right of the organization to protest and speak freely.

  This exists when I say the organization within a law firm between a partner, and associates, and staff, and paralegals, to understand that everybody is a person on the inside. That is just expanded when it's in-house counsel who are now dealing with people who are not in the legal profession in a larger organization. And then, something that's really challenging, and we read about this in news, and I'm not going to take any position on this, but it is something that we all have to deal with. In-house counsel roles have to balance free speech right, which includes social media posts against professionalism, obligations, and company policy. We live in a social media world and lawyers, themselves, are part of this social media, and need to be careful what they say on social media because that could be seen. I have heard stories of judges who have checked up on lawyers on social media, and said, "It's interesting that you made a request for a particular extension because of some reason even though this was mission critical, and then I saw posts of you hanging out in the bar that night."

  The same thing has to do with then counseling your clients, as well. And also, talking to opposing counsel about the truthfulness of certain needs you may have, because you don't want your opposing counsel also seeing you on social media. Well, in-house counsel also has to deal with this with regard to employees and it's an entirely different presentation to talk out what are the company policies regarding social media, et cetera. But these are considerations that in-house counsel have to take that have been amplified over the last few years, not only given the political climate but just the mere existence of social media. Whether it's Facebook, Twitter, Snapchat, Instagram, you name it, these are all things where your professional conduct can be reflected on a different forum. I'm going to give an example of my own post that was actually towards professionalism and got a lot of positive comments.

  I had mentioned that I am heavily involved in the Florida Bar in many of its committees. And around the time of a Florida Bar election and various committee activities that occur, I made a post that said, "Lawyers have it right. Lawyers know professionalism. Lawyers know how to treat our opponents with respect while at the same time, creating friends and constructive dialogue." And I receive positive responses, including from the president of the Florida Bar at the time, with regard to the fact that this is actually a positive statement about professionalism and something that we all should strive to meet. I'm going to leave this presentation with a couple quotes but before I get to that quote, I'm going to make a pitch for state bar organizations. One of the best ways to develop foster develop and spread professionalism is indeed bar service.

  Many of us are interested in developing clients as we should. That's how outside lawyers make a living. In-house lawyers develop the trust of their corporations by developing relationships within the corporation. So, we all like to attend events and things like that, where we could meet people in the industry, things inside the company or inside the law firm where we foster relationships. But what bar service does is you get to meet other lawyers, and sit on committees with other lawyers, and talk about things that help the legal profession. That only has, I should say, two results. Serves the public, serves the profession, and fosters and grows professionalism. So, with that, I would like to leave everybody with a couple of quotes. One of these is from the Georgia Supreme Court Retired Justice Norman Fletcher. And he says, "I have concluded that professionalism, in a legal sense, is to a great extent practicing the golden rule. Is not, 'do my opponent in before or my opponent does me in,' but rather, it is due unto your fellow attorneys, the judges and society as you would have them do unto you."

  We've all heard a quote like this, "Do unto to others as you would have them do unto you." But it is easily forgotten when you're practicing law, especially when you're in an adversarial relationship. Again, whether it's litigation or negotiating a deal that may even be mutually beneficial, it's easy to forget but it is important not to. And then, the final quote that I'm going to leave you with is by Retired Justice Sandra Day O'Connor of the United States Supreme Court, and Justice O'Connor said that professionalism is a delicate balance, quote, "Because of the tremendous power they wield in our system, lawyers must never forget that their duty to serve their clients early and skillfully takes priority over the personal accumulation of wealth. At the same time, lawyers must temper bold advocacy for their clients with a sense of responsibility to the larger legal system which strives, however imperfectly, to provide justice for all."

  In conclusion, professionalism can be summarized as follows. Ethics is the base of conduct and is strictly required by state bars and, many times, by the courts. It tells lawyers what they must do in the conduct of their practice. Professionalism sits above ethics and is aspirational to how lawyers should interact with clients, opposing counsel, the courts, and society. Whereas, ethics is grounded in mandatory state bar rules, professionalism is grounded in expected conduct and sometimes state bar guidelines. And as mentioned, many people don't even that those guidelines exist. You should check your state to see if it does have such guidelines, which would be published on the state bar website. Take the opportunity to build relationships with opposing counsel and bring it to a personal level. It pays off, not at the issue and hand alone, it can pay off in future matters.

  Professionalism can also positively build your reputation within the community, including within the legal community. Many state, local and national bars, even give professionalism awards. This is how important professionalism is to our particular career. Think of professionalism as sportsmanship. Being a good athlete and a fan is important, certainly, but being courteous to others makes it a more enjoyable experience for everybody. All lawyers should strive to be professional. It has been a pleasure talking to everybody about professionalism, and I hope that everybody becomes a professional lawyer and builds the courtesy and respect of everybody that they encounter within the profession, within their clients and within society. Thank you very much.

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1h 24s

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