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The American Civil Trial Bar Roundtable, an organization within the American Bar Association concerned with the importance of the civil trial system to the protection and preservation of the American justice system, recently issued a thoughtful, comprehensive and insightful white paper on increasing the professionalism of American lawyers.

Acknowledging the elusive nature of a definition of professionalism, the treatise focuses on its generally accepted major components of competency, ethics, integrity, access to justice, respect for the rule of law, independent judgment and civility. With these core values as the metric, the white paper concluded that, notwithstanding recent efforts by bar associations, courts and law schools to enhance the level of professionalism in the practice of law, “the common experience of the profession suggests that unprofessional conduct of lawyers remains unacceptably high.” Unprofessional lawyer behavior, the paper maintains, imposes unnecessary delays and costs on the litigation process, diminishes public confidence in the legal profession and the civil justice systems, and undermines the rule of law itself. As such, it cannot be tolerated.

The roundtable’s report went on to acknowledge the various initiatives undertaken in recent years to combat unprofessional conduct, including state court professionalism commissions, state bar professionalism committees, professionalism codes, creeds and oaths, mandatory CLE programs, mentoring programs, and recent law school emphasis on teaching professionalism. All of these efforts, the report argues, can fairly be deemed to be educational in nature, and while cumulatively they have indeed had a positive impact on the professionalism problem, they are not enough to stem the tide of unprofessional conduct in the practice of law. The roundtable takes the position that the only real solution is to “instill a norm of professional conduct in lawyers.”

The roundtable then notes that the Florida and Utah supreme courts and the Colorado Bar Association have implemented systems to formally establish such norms, and concludes that those “innovative new approaches … hold promise.” The Utah Supreme Court has a Board of Counselors to take referrals from lawyers and judges (but not from the public) and then hold face-to-face meetings with the transgressors and provide them with counseling.

The Florida Supreme Court has issued a new “Code for Resolving Professionalism Complaints” that prohibits “unprofessional conduct,” which it defines as substantial, repeated violations of the code. For complaints not constituting a violation of a disciplinary rule, Florida’s Attorney Consumer Assistance and Intake Program may provide “remedial guidance” in the form of “letters of advice” or referral to a professionalism enhancement program. The Colorado Bar Association has created a Peer Professionalism Assistance Group to offer mentoring or counseling to lawyers referred to it by judges and lawyers.

The roundtable applauded these “new avenues to strengthening professionalism beyond the philosophy of education on professionalism,” because in at least those three states, there now exists a process for raising professionalism complaints not involving separate violations of the rules of professional conduct. But when the roundtable submitted its white paper for endorsement by the ABA, it encountered unexpected opposition from a most unlikely source: the ABA Standing Committee on Professionalism.

The standing committee expressed appreciation for the roundtable’s commitment to the achievement of professionalism and support of many of the white paper’s recommendations, but it stopped short of embracing the efforts in Florida, Utah and Colorado to receive, adjudicate and act on complaints of unprofessional conduct. Noting that the legal profession has always acknowledged and maintained the distinction between the mandatory requirements of the rules of professional conduct and the aspirational goals of professionalism, the standing committee expressed its fear that these programs designed to establish “norms of professional conduct” would blur that bright line.

Moreover, the inherently subjective and broad nature of the aspirational professional norms being addressed in an informal, “off-the-record” process could “unfairly expose some respondents to the vagaries of inconsistent interpretation of subjective norms,” the standing committee opined. The standing committee expressed its further concern that, as these programs and their progeny expanded, disciplinary counsel would be drawn into these compliance efforts, thereby imposing a burden on already overcommitted and underresourced enforcement agencies. The standing committee concluded it could not, therefore, cosponsor the roundtable’s resolution seeking endorsement of its white paper and called for “further meaningful dialogue” on the issues it raised concerning those quasi-disciplinary commissions.

We believe the concerns expressed by the standing committee and its call to proceed with caution on these issues are justified. While the quasi-enforcement commissions implemented in Florida, Utah and Colorado constitute a direct and creative effort to stem the tide of unprofessional conduct, which is undeniably a most worthy goal, the informal enforcement of broad and subjective aspirational standards may be dangerously close to the formal regulation of mandatory rules of behavior, but without the requisite due process protections. Indeed, what is yet unclear are the consequences of a finding by such a board that a professionalism “norm” has been violated. Must the respondent report that when seeking admission pro hac vice in another jurisdiction? To his malpractice carrier?

The Florida, Utah and Colorado professionalism commissions should be regarded as pilot programs to be observed carefully over the coming few years. If they function as hoped and expected, without jeopardizing the due process rights of the respondents, then they can serve as a model for other states to emulate. Until then, even the most unprofessional lawyers among us must have their due process rights protected.•