Nov 16, 2016
I recently had the opportunity to visit our northern neighbors to provide a keynote address at the Federation of Ontario Law Associations 2016 Spring Plenary Conference on behalf of NCBP. Like NCBP, FOLA is an association that represents the interests of practicing lawyers and its committees deal with the many issues affecting the legal profession. I share with you my keynote, in which I discussed why mentoring and professionalism still matter. The practice of law is an honor and privilege, one that carries great responsibility to our clients, associates, partners and opposing counsel and society. As lawyers, we are a part of something that is much greater than simply making a living.
Several years ago, a Florida lawyer was suspended for sending emails to opposing counsel, calling opposing counsel a liar and disingenuous, saying that his motions were laughable and scurrilous, and accusing the other lawyer of being incompetent. More recently, an Illinois lawyer was suspended for repeatedly calling opposing counsel offensive names, including a "whore" and a "child molester." Sadly, stories like these - while shocking - are far from uncommon. These incidents reflect a disturbing trend of a growing lack of civility in our profession.
Both the National Conference of Bar Presidents and the American Bar Association have had much discussion in recent meetings on the future of the legal profession. This article draws from this focus on our future, and identifies some of the causes for this lack of civility and some solutions for combating the problem.
Technology and social media have been "game changers" in the way law is now practiced, but they are also a root cause of the civility issues reflecting poorly on the profession. British author Richard Susskind wrote a book entitled The End of Lawyers, in which he argues that technology is one of the
primary drivers of change in our profession. The title of his book says all you need to know about his conclusions. While I don't necessarily agree with his conclusions, he does have many interesting observations about how the delivery of legal services is changing.
When he published the book in 2008, the iPhone was still new, having hit the market just the year before. Linkedln had a mere 17 million members in 2008; it has more than 400 million users worldwide today. Facebook had about 100 million monthly users in 2008; now it has more than 1.6 billion. More than six billion text messages are now sent each day in the U.S. - and only some of them by people behind the wheel of a car. It has been calculated that the average teenager sends six texts per waking hour.
These statistics tell a story that we have lived in our daily routines. Our world is more connected, and technology has changed the way and the speed - with which we communicate. Think about what the practice of law looks like now. We are on call 24-7. If clients send us an 80-page document at 5 P.M., they want to hear our thoughts at 8 A.M. the next morning. Clients want call backs within the hour, wherever we are, whatever we're doing. Now, when we go home from the office, we can take our office with us, either with a phone in our pocket or, at most, a two-pound tablet or laptop. We can work at the beach, answer clients' questions while we're at our kids' soccer game, and I've even heard stories of women lawyers working while they were in labor.
Technology has made communication easier - and that can be a good thing. In fact, it is almost hard not to communicate. We're pretty much in contact with everyone, anywhere, all the time. We text, tweet, and email. We can call clients, friends, or family while driving our cars. The world is virtually at our fingertips - so long as we have service on our phones.
But the ease of communication can also be a very dangerous thing. Beyond the added stress of faster turnaround times for clients, easier communication has made communication less civil. You can also see the problem from a quick skim of the online comments that follow newspaper articles, particularly those on politics and sports. Who has not read a comment on social media that surely would not have been said out loud or face to face? It is far too easy to be critical behind the wall of an email, a text, Facebook or Twitter.
This easy communication liberates people to say things they would be unlikely to say in a face-to-face setting. There seems to be an inverse relationship between the ease of electronic communication and civility. Perhaps this comes from the anonymity this communication permits. Perhaps it comes from the fact that you don't have to see the reaction of the person to whom you are speaking. Perhaps it is the fact that sending an email or a text is so easy, that you don't have to pause to think about what you're saying. Whatever the fundamental cause, the way we communicate electronically is different - and it is affecting the way that we communicate in other ways too.
Lawyers haven't escaped this change. The opening examples from this article illustrate this problem. Do a quick Google search on "lawyers and ethics." You'll quickly get lost amidst countless stories that are the reason that people make jokes about lawyers. As a sad example from close to home, South Carolina had a disciplinary case a few years ago in which the lawyer - not a young lawyer, I am sorry to say - representing a client in a zoning dispute accused someone on the other side of the litigation, in a letter, of "having no brains, and it is questionable if he has a soul." He went on to suggest that the town in the zoning dispute wanted to crucify Christ. The South Carolina Supreme Court suspended him for ninety days and the lawyer, contrite after the suspension, said he thought at the time that he was guilty only of free speech - zealous advocacy, some might say.
Technology and the ease of communication have caused problems in our profession. It's a problem that makes the practice of law less pleasant and makes people distrust lawyers. Working with pleasant lawyers is a rewarding experience. Working with rude lawyers makes us want to find a new job. Disrespect is contagious, and we've all caught it in some measure. The respect even to let other people finish their sentence has evaporated. Even in legal conferences, people are in and out of the room, fiddling with their phones and chatting during presentations, because, of course, their lives, their work, their problems are much more important than yours. Judges have distressing stories of lawyers treating each other more like bar room brawlers than officers of the court. This is the sad reality that many of us witness on a far too regular basis.
Our lack of civility is also a problem that affects how the public views lawyers. A 2013 Pew Research Center survey measured the esteem respondents had for various professions, asking if the profession "contributes a lot" to society. Understandably, the military and teachers were at the top, at 78 and 72 percent, respectively, with people saying those professions contribute a lot to society, followed by doctors. Lawyers? We ranked dead last, endorsed for our contributions to society by just 18 percent of those surveyed.
It's been fashionable to criticize lawyers for centuries. We have so often been treated as slick rogues in TV shows and popular culture, and we won't ever make it to the top of one of these popularity lists. But this survey also indicated the respect for lawyers has declined significantly over the past few years. We are despised even more than journalists, another profession that could benefit from soul searching. This declining public confidence has real costs for the continuing legitimacy of our justice system. It's an issue we won't solve overnight, and it's not my primary focus. But the way we treat each other impacts how the public views us.
How we treat each other therefore is a problem we need to address. So what can we do about it? I see one trend on a bigger scale: what bar associations are doing to try to change the tone of the profession. But I want to focus more on a smaller solution: Mentoring - that is, how do we teach younger lawyers to practice law.
First, a brief note about the bigger-scale solution. This declining civility has prompted the Bar to address the issue. For example, in my home state of South Carolina, rough communication among lawyers became such a problem that we added a civility clause to our oath and our supreme court required all of the state's lawyers to take the oath again. Besides South Carolina, some other states also have taken steps to codify civility among lawyers. A growing number of states now have professional rules that allow discipline authorities to sanction lawyers for violating specific professional rules that mandate civility.
Turning to the smaller-scale solution, what we each can do - in our daily practice - is to make the practice of law more civil? Let's remember that as lawyers, we're fundamentally problem solvers. And solving problems requires good communication.
Despite the fact that technological advances have dramatically changed how we practice law, what we do remains very much the same. We are still performing much the same work we did for our clients eight or even twenty years ago. The critical moments in any case and in any deal still involve the most human of interactions - talking across the negotiating table, in courtrooms, over lunch.
These moments are the same now as when many of us started practicing law. You remember those days. When you took work home in a briefcase. When you carried some extra quarters in case you had to make a call when you were away from the office. When you sent documents to clients or opposing counsel in the mail, after putting a stamp on an envelope and knowing you wouldn't have to think about that document again for at least a few days.
What many of us also remember from our early days of practice is that lawyer. That older, wiser lawyer who guided us through the adjustment from the classroom to the real-life practice of law. What we learned from these mentors was not merely a blueprint for courtroom procedure or law office management, but a roadmap for professionalism and forming networks that would span our careers. They were role models to us, and now we need to remember what they taught us and teach those same things to new lawyers.
As a profession, we must recommit to this type of mentoring, and maybe we need to remind ourselves of some of the values we learned long ago. This individual-level leadership will hopefully create a movement that, like a stone rolling downhill, picks up momentum and inspires our profession to return to its collegial roots. A profession in which we can disagree without being disagreeable and in which we can, after vigorously representing our clients, still have a drink together.
This mentoring can be through formal programs run by a Bar or a firm, or it can be informal, through relationships that two lawyers develop. Both are good, and both should be encouraged.
As an example of a formal mentoring program, the Supreme Court of South Carolina recently established a permanent mandatory lawyer-mentoring program. Shortly after admission to the South Carolina Bar, new lawyers are paired with an experienced mentor for a one-year mentoring period. And many law firms in our state have mentoring programs as well. We should constantly examine these programs to see if they are meeting the needs of today's 20-something-year-old lawyers. I am proud that in South Carolina the legal profession is emphasizing the personal relationships in which civility is valued. We are a small state that breeds congeniality within its communities and neighborhoods, and the legal profession is no different.
Perhaps most importantly, each of us can look for opportunities to provide guidance, feedback, and counsel to the young lawyers who cross our path. We are ultimately still a profession built on the apprenticeship model. Given the complexities of the law today, no one graduates from law school ready to competently represent clients if they don't receive guidance from a mentor or senior colleague. I wouldn't expect a young associate to be able to close a real estate transaction without someone standing over his shoulder, and we wouldn't send a brand new lawyer to court to cross-examine a witness without some guidance.
At its core, mentoring is premised on a simple concept: senior professionals pass on their practical wisdom to new lawyers to smooth the transition into a new working environment. While the role of a mentor is advisor and motivator, it may also be as an advocate by, helping new lawyers gain more visibility and work, in - building relationships, and through teaching the fine points of working with other lawyers and clients.
Last year, the South Carolina Supreme Court began recognizing the positive role of mentors with awards for a select few going above and beyond in their guiding of new lawyers. In January, one such mentor was described as follows:
"He encouraged his mentee to pave her own career path by building and maintaining relationships founded on civility, integrity and professionalism. He told his mentee that a law license is an investment that should be protected by having an honest, ethical and moral character."
This embodies the future I hope we preserve for our profession.
But developing this type of mentoring relationship must be intentional. We cannot mentor young lawyers by accident. We must seek out opportunities to do so.
Admittedly, being intentional about mentoring is hard. Because of competitive pressure, new associates must be productive as quickly as possible. Compounding that issue is a higher rate of attrition among newer attorneys and a generational dynamic in which today's new lawyers change careers more frequently. They won't necessarily remain at the same firm five or ten years, and the result sometimes is a haphazard mentoring that results from changing firms and practice focus much more often than in the past.
But these challenges are not an excuse not to seek opportunities to mentor young lawyers and teach them how law should be practiced. After all, if we don't seek them, who will? We must step up and provide the leadership for these smart young people who are coming into our profession. There is no
app for teaching them civility; that still has to be taught by example. And it is our duty to do so.
We must teach civility. We must strengthen our profession. We should pursue civility because it is the right thing to do. Living out the Golden Rule is a standard to which we virtually all subscribe.
But pursuing civility has other benefits. First, you never know when you might need something from your opposing counsel of today. It pays to be professional and civil at all times. Second, professionalism and congeniality among our colleagues strengthens the image of our profession. The best protection we have for our clients and our reputation is to be professional and civil at all times. Third, civility makes the practice of law - a stressful job more enjoyable.
Civility is ultimately based on relationships. And relationships - even with the advances in technology - are fundamentally personal. I don't know of any deal that gets done, or any litigation or mediations that advance very far without the participants sitting across the table from one another. Relationships do matter in our profession, and that will not change.
The practice of law is an honor and a privilege, one that carries great responsibility to our clients, associates, partners, opposing counsel, and society. Let's continue that tradition with not only our dedication to the rule of law, but a determination to preserve the values of our profession that make all of us feel that we are part of something that is much greater than simply making a living. Rather than seeing the "end of lawyers," our society needs the legal profession and its dedication to the rule of law more than ever. In these coarse times, we need to set the example to show that zealous advocacy can be civil and disagreements on policy don't have to be personal. Let's recommit ourselves to the highest standards of our profession and be the example for our young colleagues that our mentors were for us.