On November 22, 1998, the Supreme Court of North Carolina created The Chief Justice's Commission on Professionalism (see 349 NC at 695). The primary charge of the Commission is to enhance professionalism among North Carolina lawyers and to ensure that the practice of law in this State remains a high calling.
Was it necessary to create such a commission? Can The Chief Justice's Commission on Professionalism make a difference in how lawyers in North Carolina conduct themselves? As Harvard Law School Dean Roscoe Pound said early in this century: "Law isn't something that exists as a closed system within itself, but draws its juices from life." The problem our profession is having, internally and externally, is part of a national criticism about all our institutions - the Congress, the presidency, the media, the business world, the medical profession, the education system, organized religion, and law enforcement. It is deeply disturbing that so many people in so many areas of American life need referees and judges to make them do what is right.
Today, we in the legal profession serve a public disaffected with lawyers, a public largely convinced that we have drifted away from high aims and broad visions. Law schools, the bench and the bar cannot avoid responsibility for this problem by blaming each other for it. The challenge of reclaiming our common values is an urgent mandate for us all. Across the country, lawyers and judges are hearing calls to restore professionalism to the practice of law.
The North Carolina Chief Justice's Commission on Professionalism is the seventh such commission established in the United States. Former Chief Justice Burley B. Mitchell, Jr. and leaders of The North Carolina State Bar backed the creation of the Commission. The Honorable Henry E. Frye was appointed Chief Justice of the North Carolina Supreme Court by Governor James B. Hunt, Jr. effective the 1st day of September, 1999, and Chief Justice Frye endorsed the membership and the goals of the commission.
The members of the Commission reflect the profession's four main constituents: judges, law school faculty, lawyers, and the public. The current membership of the Commission is as follows:
- Hon. Henry E. Frye - Chairman - Chief Justice of the Supreme Court of North Carolina
- Hon. Sidney S. Eagles, Jr. - Chief Judge of the North Carolina Court of Appeals
- Hon. Douglas W. Albright - Senior Resident Superior Court Judge of Guilford County
- Hon. J. Carlton Cole - District Court Judge of Perquimans County
LAW SCHOOL FACULTY
- Dean Robert K. Walsh - Wake Forest University School of Law
- Dean Gene R. Nichol - University of North Carolina School of Law
- Dr. William C. Friday - President Emeritus, The University of North Carolina
- Dr. Lloyd V. Hackley - President of the Character Counts Coalition
- Phillip J. Kirk, Jr. - President of N. C. Citizens for Business and Industry
- Alfred P. Carlton, Jr. - Sanford & Holshouser
- William O. King - King, Walker, Lambe & Crabtree
- Philip G. Kirk - Kirk, Kirk, Gwynn & Howell
- Eric C. Michaux - Michaux & Michaux
- E. Fitzgerald Parnell, III - Poyner & Spruill
- Elizabeth L. Quick - Womble, Carlyle, Sandridge & Rice
- Howard F. Twiggs - Twiggs, Abrams, Strickland & Trehy
Our Supreme Court and The State Bar have recognized a difference between ethics and professionalism by allowing CLE credit for both topics. There is a distinction between ethics and professionalism. ETHICS IS A MINIMUM STANDARD WHICH IS REQUIRED
OF ALL LAWYERS, WHILE PROFESSIONALISM IS A HIGHER STANDARD EXPECTED
OF ALL LAWYERS.
Laws and the Revised Rules of Professional Conduct establish minimum
standards of consensus impropriety; they do not define the criteria for ethical behavior. In the traditional sense, persons are not "ethical" simply because they act lawfully or even within the bounds of an official code of ethics. People can be dishonest, unprincipled, untrustworthy, unfair, and uncaring without breaking the law or the Rules of Professional Conduct.
The three ancient learned professions were the law, medicine, and theology. The word profession comes from the Latin professus
, meaning to have affirmed publicly. As one legal scholar has explained, "The term evolved to describe occupations that required new entrants to take an oath professing their dedication to the ideals and practices associated with a learned calling."1
Many attempts have been made to define a profession, in general, and lawyer professionalism, in particular. The most frequently cited definition is by the late Dean Roscoe Pound of Harvard Law School:
The term refers to a group ... pursuing a learned art as a common calling in the spirit of public service - no less a public service because it may incidentally be a means of livelihood. Pursuit of the learned art in the spirit of a public service is the primary purpose.2
Teaching and Learning Professionalism, the 1996 report of the Professionalism Committee of the American Bar Association Section of Legal Education and Admissions to the Bar, expands the Pound definition and particularizes it for lawyers:
A professional lawyer is an expert in law pursuing a learned art in service to clients and in the spirit of public service; and engaging in these pursuits as part of a common calling to promote justice and public good.
Many would say that professionalism is simply defined by the Golden Rule, "Do unto others as you would have them do unto you."
Justice Sandra Day O'Conner of the United States Supreme Court gives as her definition:
To me, the essence of professionalism is a commitment to develop one's skills to the fullest and to apply that responsibly to the problems at hand. Professionalism requires adherence to the highest ethical standards of conduct and a willingness to subordinate narrow self-interest in pursuit of the more fundamental goal of public service. Because of the tremendous power they wield in our court system, lawyers must never forget that their duty to serve their clients fairly 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.
The Commission's own, E. Fitzgerald Parnell, III, defines professionalism as, "The rekindling and nurturing of those imbedded values that brought each of us to the Bar."
Our task as a profession is to raise the lowest common denominator and to reinforce the highest aspirations that bind us together. This does not mean that we should engage in a contrived public relations campaign. Rather, the true task is to build, or to rebuild, a culture of professionalism. In that culture, the lawyer pursues "a learned art in the spirit of public service."3
Jerome Shestack, past president of the American Bar Association, had enumerated the elements of professionalism:
First is fidelity to ethics and integrity as a meaningful commitment...
Second is service with competence and dedication - but with independence...
Third is meaningful legal education - not as a chore to meet some point system but as a means for growth and replenishment...
Fourth is civility and respect for authority. Let us resist the Rambo-type tactics in which civility is mocked and ruckus is routine. Civility is more than surface politeness; it is an approach that seeks to diminish rancor, to reconcile, to be open to non-litigious resolution. It modifies the antagonisms and aggressiveness of an adversarial society...
Fifth is a commitment to improve the justice system and advance the rule of law. The justice system is our trust and our ministry. And we bear the brunt of public dissatisfaction with the justice system's flaws and deficiencies... To make that limping legal structure stride upright is the obligation of every lawyer...
The final element of legal professionalism is pro bono service... Much has been given to our profession; it seems right to give something back - indeed, it is an ethical obligation...
We are not only lawyers, we are educators and individuals whom others turn to in times of crisis. If we truly believe in the elements of professionalism, we should heed the words John Ruskin offered a century ago:
Education does not mean merely teaching people what they do not know. It means teaching them to behave as they do not behave. It is a painful, continual and difficult work to be done by kindness, by watching, by warning, by precept, by praise, but above all, by example.5
The general goal of the Chief Justice's Commission on Professionalism is to create a forum in which lawyers, judges and legal educators can explore and reflect upon the meaning and goals of professionalism in North Carolina's contemporary legal community.
It is important for lawyers to recognize problems that effect them and to be willing to change those problems when possible. For example, one of the most difficult situations facing trial lawyers in North Carolina was getting time off to spend with family and friends. Having to cancel a prearranged vacation because a case was called for trial and the trial judge would not continue it leads to anxiety and family discord. Therefore, the Chief Justice's Commission on Professionalism pressed for and got approved a three (3) week vacation policy which is recorded in N.C.G.S. 7A-33A. This new policy will allow an attorney to notify the Court of vacation plans at least ninety (90) days prior to the vacation period and prior to any scheduled in-court proceeding and the leave shall be granted. The Commission will attempt to have this same policy adopted by the Federal Courts of North Carolina.
Another significant event, in which the Chief Justice's Commission on Professionalism participated, occurred on December 10, 1999. On this occasion the President of the North Carolina Academy of Trial lawyers, Bill Mills, and the president of the North Carolina Association of Defense Attorneys, Richard Bennett, met to discuss a joint resolution on professionalism. Both of these Presidents, their Presidents-Elect, and representatives of The Chief Justice's Commission on Professionalism agreed that a joint resolution on professionalism would help attorneys representing the plaintiff's bar and the defense bar work better together to focus on the important aspects of their cases and to try to achieve justice for their clients in the most expeditious and efficient way possible. It will also send a unified message that lawyers in North Carolina are going to abandon the "win at all costs" approach. Lawyers will be encouraged to focus on trying each case professionally. When cases are tried professionally, justice will be served and the ultimate winner will be our legal system.
The Chief Justice's Commission on Professionalism is considering the adoption of a Professionalism Creed for North Carolina lawyers and an Aspirational Statement for the profession. These two documents would serve as the beginning point for professionalism discussions, not because they are to be imposed upon North Carolina lawyers or bar associations, but because they will serve as words of encouragement, assistance and guidance.
The Commission is also working closely with the law schools in North Carolina. If the trend towards more professional conduct is going to succeed, it must start in our law schools. We cannot expect young lawyers to act professionally if they have not studied and practiced professionalism in law school.
Ours is a profession dedicated in service to humanity, and it is distinguished from other businesses or trades because it is selfregulating. These are self-imposed standards. Members of this self-regulating profession cannot stand silent in the face of inappropriate and unprofessional conduct and expect the profession to survive. A wall of silence will be our demise. We can regain the trust and respect of the public one step, one client, one day at a time. We take that step wherever our profession takes us and in whatever capacity - in the Courtroom, in the corporate boardroom, in the deed vault, in our churches, on the soccer fields, or in public service.
As the first Executive Director of this new Commission I need your help. I will be traveling from the mountains to the piedmont to the coast talking with lawyers, judges, law students and the public about professionalism. But this endeavor cannot succeed unless you as lawyers join with me in the rekindling and nurturing of those imbedded values and principles of professionalism that each of you possess. A renewed commitment to those elements of professionalism will make you a better lawyer, a happier and healthier person and will improve your quality of life. It is my belief that a large number of the alcohol, drug and depression problems that are occurring among lawyers are directly related to the manner in which lawyers conduct themselves.
Remember the old adage about the person in the mirror - it is a good one. Each morning when you look in the mirror, make a commitment that you will conduct yourself, that day, in the most professional manner you can; that you will treat every person and every client as if they are the most important person on earth and that their case is the most important case in your office; that you or a member of your staff will return every phone call within twenty-four (24) hours; and that you will take the "high road" when you deal with other lawyers and your fellow man. Incivility breeds incivility, but when you take the "high road" others will follow.
The "high road" back to professionalism will not be completed quickly. As with all worthwhile projects, it will be difficult but rewarding. I have already encountered many wonderful stories of professionalism from lawyers throughout our great State. I trust that you will share your stories of professionalism with me as I travel to your community on behalf of the Chief Justice's Commission on Professionalism.