Vol. 76, No. 4, April
2003
Are We Really Raising the Bar?
Lawyers have a responsibility to alter the behaviors that tarnish
their image and that of the profession. It begins with the individual
attorney and starts by treating clients as people, not as cases.
Sidebars:
by Howard N. Myers, Jeffrey P. Sweetland & Laura C. Suess
Proposals on "raising the bar" (that is, improving the image of
lawyers) will be useless and meaningless until lawyers make a serious
effort to alter the behaviors that have severely tarnished their image.
Too often, for a variety of reasons, some lawyers fail to clarify fee
arrangements, return phone calls in a timely manner, periodically
communicate with the client regarding the status of a case, or
adequately explain the ongoing process. Additionally, some lawyers get
involved in frivolous lawsuits, thus subjecting the profession to harsh
criticism.
The late Howard Eisenberg, dean of the Marquette Law School, once
said, "The lawyers who earn the most enduring legacy as outstanding
practitioners are those men and women who combine a firm grasp of
substance, highly developed skills, and a moral and ethical grounding
that is beyond reproach."1
When a client presents a case to an attorney, the attorney must look
at the totality of the client's concerns, particularly the client's
feelings, which are never wrong. They may be irrational, but they are
still the person's feelings, and they are the most important aspect of
his or her reality. We, as lawyers, must never forget this simple
truth.
The attorney must not simply engage in the analytical exercise of
evaluating whether a cause of action exists. The client seeks help
because he or she is in a crisis. Sometimes the client presents not only
a legal case but also a multifaceted personal crisis that has
psychological and financial dimensions, and perhaps even medical and
spiritual ones as well.
Granted, time constraints, billing obligations, and considerations of
the nature of the case may make it impractical to assist the client with
every nonlegal component of the matter. However, when the lawyer probes
more deeply and helps the client recognize and define all aspects of the
legal and personal problem, the client may become empowered. It will
then be much easier to move forward in a more productive way and
identify a truly satisfactory resolution.
The Public's Negative Perception of Lawyers
Corporations and other organizations retain or employ lawyers as a
matter of course to ensure that in their business transactions they
maximize all the law's advantages and avoid all of its pitfalls. Some
parties may retain lawyers as a badge of status or as a symbol of
position and influence.
Many people, however, see lawyers as something to be avoided. They
can get along fine in life without an attorney and would prefer to keep
it that way unless they have no other choice. Meanwhile, they will
circulate all the latest lawyer jokes and share in the misperception
that lawyers are the cause of all of society's ills.
Certain high-profile cases have caused the public to take a jaundiced
look at the legal system and its participants. All too often the media
delight in portraying the legal profession in a negative light. Many
people think that lawyers are only interested in "chasing the almighty
buck" and are not genuinely concerned with the welfare of
clients.3 A few years ago, a study of the
Milwaukee County legal system disclosed that lawyers and court personnel
had a much higher opinion of the system than did the public.4 This carries significant implications for both the
profession and the legal system as a whole.
If this is our reputation as lawyers, is it justified? Have market
forces converted the practice of law from a profession to nothing more
than a business? If so, how has this conversion impacted on the public's
mixed perceptions about lawyers? Have we lost our sense of caring and
compassion? With the influx of computers, email and fax machines, and
the pressure of billable hours, are we on such a tight time schedule
that we jeopardize the personal nature of the attorney-client
relationship for the sake of expediency? The way a lawyer practices
determines whether the client will feel satisfied with the
representation. It will also determine how the client views the
profession and the entire legal system.
A Client is Not a "Case"
The problem is further exacerbated by the failure of many attorneys
to deal with each client as anything more than "a case." Attorney
Stanley Clawar has stated that there is a psychological as well as a
legal aspect to many client concerns.5 If
this is correct, as we believe it is, a lawyer's failure to direct
attention to the client's real concerns may contribute to the public's
lukewarm impression about how we practice and to our profession's
current unfavorable reputation.
Within the limits established by the Rules of Professional Conduct
for Attorneys,6 the attorney's
representation role should naturally conform to the client's overall
goals.7 According to Paul Brest, emeritus
professor of law at Stanford Law School, "a good lawyer must be able to
counsel clients and serve the interests of the client beyond technical
expertise ... to integrate legal considerations with the business,
personal, political, and other nonlegal aspects of the matter."8 Attorney Steven Keeva, author of Transforming
Practices: Finding Joy and Satisfaction in the Legal Life, has
added new dimensions to his practice: "... tools like compassion,
mindfulness, deep and committed listening, intuition, and revisioning
the law as a healing profession."9
An attorney-counselor should exercise "independent professional
judgment ... and refer not only to law but to other considerations such
as moral, economic, social and political factors ... relevant to the
client's situation."10 However, the
lawyer's own style, preconceived notions, prejudices, and emotional
makeup also have an impact on the nature and quality of the legal
services that will be provided.
Courts also have recognized that the duty of a lawyer encompasses
factors outside the legal concerns of the client. In holding that a
motorist stopped for driving while intoxicated should have a reasonable
opportunity to consult with an attorney before submitting to a chemical
test, the Minnesota Supreme Court reasoned:
"If the objective of D.W.I. prosecutions is to get drunk drivers off
the highways, into treatment, and on the way to sobriety, an attorney
can play a very important role. A good lawyer is not only interested in
protecting the client's legal rights, but also in the well-being and
mental and physical health of the client. A lawyer has an affirmative
duty to be a counselor to his client. See Minn. R. Prof. Conduct 2.1
(1985) ('In rendering an advice, a lawyer may refer not only to law but
to other considerations such as moral, economic, social, and political
factors, that may be relevant to the client's situation.') The lawyer
may be able to persuade a problem drinker to seek treatment."11
The lawyer has a responsibility to ensure that the client understands
the limits of what complete legal and equitable redress will provide and
to fully prepare the client for the realities of litigation, if
litigation is what the client seeks. Reality checks are essential at
every stage of the process. The lawyer should prepare the client for all
of the emotional and financial stresses to which he or she will be
subjected during the representation. A failure to accept this added
responsibility can only perpetuate the public's unfavorable reaction to
lawyers as a whole.
We also recommend that law schools have course offerings covering the
following topics:
- proper listening and interviewing techniques
- problem-solving and negotiating skills and ADR techniques (that is,
mediation)
- the advocacy and attorney-counselor roles
- integration of substantive legal principles and ethical requirements
with clients' needs and goals
- a series of lectures from practitioners in various fields explaining
the nature and reality of legal practices12
- the pragmatics of practicing law.
Conclusion
The late Dean Eisenberg wrote that he told law students on their
first day of orientation that the legal profession is said to be one of
the great helping professions.13
At the end of the representation process, clients should be satisfied
that the legal aspects of their case have been properly handled.
Additionally, clients should be left with peace of mind and a sense that
the crisis that brought them to the lawyer has been overcome. This
requires each lawyer's individual commitment to take the necessary time
to adequately determine the client's concerns. "Raising the bar" will
come to fruition as the image of the legal profession is improved by the
deliverance of quality and caring representation.
Endnotes
1See
Howard Eisenberg, "What's a Nice Jewish Boy Like Me Doing in a Place
Like This?" 86 Marq. L. Rev. 336, 345 (2002).
2Some commentators
suggest taking the "client-centered approach" by viewing the client as a
real and whole person and placing yourself in the client's shoes.
See, e.g., David B.A. Bender, Paul Bergman, and Susan C. Price,
Lawyers as Counselors (returning phone calls in a timely manner
is significant to each and every client).
3See
Public Trust and Confidence in the Justice System, Wis.
Initiative, Oct. 2000, at 78.
4Id.
5Stanley S.
Clawar, You and Your Clients, ABA General Practice Section.
6See SCR
20:1.1 - 20.8.5.
7SCR 20:1.2 -
Scope of Representation.
858 Law and
Contemporary Problems 5, 8 (1995).
9Steven Keeva,
My Money, My Life - An Epiphany About Lawyers, N.Y. Times, Oct.
10, 1999, Money and Business, at 10.
10SCR 20:2.1 -
Advisor.
11Friedman
v. Commissioner of Public Safety, 473 N.W.2d 828, 834-35 (Minn.
1991).
1258 Law and
Contemporary Problems, No. 3 and 4, at 8 ("The Responsibility of
Law Schools").
13See
Eisenberg, supra note 1, at 344.
Wisconsin
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