When day to day questions arise concerning ethical issues, the specific ethics rules in the Iowa Rules of Professional Conduct are often consulted to obtain an answer. However, we should not lose sight of the guiding principles found in the Preamble to the Iowa Rules of Professional Conduct. The Preamble sets out the concepts that serve as the foundation upon which our professional conduct should be based.
The Preamble defines lawyers, who as members of the legal profession, have a “special responsibility for the quality of justice”.1 This unique and special responsibility is explained as follows:
A lawyer’s conduct should conform to the requirements of the law, both in professional service to clients and in the lawyer’s business and personal affairs. A lawyer should use the law’s procedures only for legitimate purposes and not to harass or intimidate others. A lawyer should demonstrate respect for the legal system and for those who serve it, including judges, other lawyers and public officials. While it is a lawyer’s duty, when necessary to challenge the rectitude of official action, it is also a lawyer’s duty to uphold legal process.2
The Preamble states that a lawyer should “strive to obtain the highest level of skill, to improve the law and the legal profession, and to exemplify the legal profession’s ideals of public service.”3 This places an affirmative obligation on each lawyer to improve the public perception of all lawyers. We can foster this favorable perception by practicing law in accordance with the concepts of professionalism set out in the Preamble.
Recognizing that the law is not a science, the Preamble notes that there are gray areas that present “many difficult issues of professional discretion”. For these situations, the Preamble urges attorneys to resolve these conflicts through the exercise of “sensitive, professional and moral judgment guided by the basic principles underlying the rules”.4 Zealous representation of a client in advocacy of a client’s legitimate interests can be done within the bounds of the law while still maintaining a “professional, courteous and civil attitude towards all persons involved in the legal system”. 5 If, as President Obama says, “We can disagree without being disagreeable,” then certainly in the exercise of professionalism we can zealously represent our clients without being zealots.
So what is Professionalism? Is it being ethical? Does it mean you are friendly to your adversaries? The Oregon State Bar explained the concept well on its web site:
Professionalism includes integrity, courtesy, honesty, and willing compliance with the highest ethical standards. Professionalism goes beyond observing the legal profession’s ethical rules; professionalism sensitively and fairly serves the best interests of clients and the public. Professionalism fosters respect and trust among lawyers and between lawyers and the public, promotes the efficient resolution of disputes, simplifies transactions, and makes the practice of law more enjoyable and satisfying.
Examples of professionalism include: agreeing to reasonable requests for extensions of time, accommodating the calendar of others when scheduling a matter and civility while communicating about one’s case, whether with the court or in discussions with opposing counsel.
As lawyers, we need to continue to do more than pay just lip service to the notion that we are different because we say we are professional and ethical. Our actions will speak louder than our words. We can treat opposing counsel with courtesy and respect without sacrificing our role as an advocate. So the next time a prospective client asks if you will act like a “street fighter” or if you will adopt a “scorched earth” method of handling his case, remember that the Iowa Rules of Professional Conduct do not “exhaust the moral and ethical considerations that should inform a lawyer,”6 your conduct must be guided by your “personal conscience”7 and “the approbation of [our] professional peers.”8
Lawyers are often the target of scorn and ridicule in the media. All too often we pick up the newspaper and find an article about an attorney who is being investigated for an alleged breach of a client’s trust. But the fact is that illegal, unethical or unprofessional conduct by lawyers only serves to reinforce the views of a vocal segment of our population that wants to blame lawyers for the high cost of health care, the number of criminals on the streets and even for global warming. Unfortunately, the actions of a very small minority of our profession can undermine our collective image. However, the fact that such negative stories are given a prominent place in the media, should not allow us to lose sight of the thousands of routine instances of professionalism exhibited by lawyers that go unnoticed each day. Contrary to the perception of the public, professionalism is the norm in the practice of law rather than the exception.
Professionalism is a valued characteristic. For example, while lawyers have always had clients; these days hair dressers, personal trainers, and lawn services call their customers “clients” as well. By referring to their customers as “clients,” the providers of such services are attempting to assume the mantle of professionalism. If other service providers see the value in holding themselves out as professionals, we as lawyers must remain cognizant of our unique role as professionals.
Finally, the Preamble recognizes that difficult ethical problems arise from a conflict between a lawyer’s responsibilities to clients, the legal system and to “the lawyer’s own interest in remaining an ethical person while still earning a satisfactory living.”9 Many of us are familiar with the tension that exists between the practice of law as a profession and the practice of law as a business. Maintaining professionalism can be difficult when the problems in your practice affect your job security or your ability to provide for your family. It may be easier to act professionally when business is good, but in these difficult economic times, professionalism may be viewed by some as an obstacle to obtaining an expeditious result for a client. Fortunately, our ethical rules don’t allow us to adjust the manner in which we practice according to the prevailing economic conditions. In the long run, the privilege of being able to practice law in a professional and ethical manner outweighs the short term economic difficulties we may encounter.
Ronald D. Rotunda in his book Legal Ethics, the Lawyer’s Desk Book on Professional Responsibility (2009) p. 49 writes:
“ . . . unlike engineers, we construct no bridges. Unlike doctors, we mend no bones. Unlike architects, we design no buildings. Unlike artists, we paint no portraits. There is little that we do that the human hand can touch. But—if we are doing our jobs properly—we take on other people’s burdens, we relieve stress, we pursue justice. We enable mankind to live a more peaceful and just life. We take the veneer of civilization and we make it a little thicker.”
As lawyers we can and should treat our clients, our fellow lawyers and the courts with the same respect that is deserved by our profession as a whole. By practicing law according to the concepts stated in the Preamble, our “professionalism” will make the “veneer” of our profession “a little thicker”.
1 Preamble to Iowa Rules of Professional Conduct ¶ 5
3 Id. at ¶ 7
4 Id. at ¶ 9
6 Preamble at ¶ 7
9 Scope of the Iowa Rules of Professional Conduct ¶ 16