Dean's Address

"The most frightening measure of what the legal professional has lost is that most Americans do not even remember the trust that society once placed in its lawyers. If a new Alexis de Tocqueville came to America today to study its laws and customs he could never come up with the idea that the lawyers were the country's natural aristocracy. Lawyers blame the law schools, the law schools blame the lawyers, the judges blame the lawyers, the lawyers say the clients (or their sense that they must go the limit for their clients) made them do it. Others blame the culture: It's a jungle out there; ethical standards are down wherever you look. Wall Street brokers who hold themselves out as agents trade for their own account to their clients' disadvantage. Even the clergy seem more prone to scandal than they used to be. Why single out lawyers for the loss of ethical fibre at a time when ethical decline is so widespread? "Because lawyers are supposed to be the custodians of a community's legal and ethical sense." 7/

It makes no difference that it is a societal ill ‑ that it's not unique to our profession, that everyone is rude. There's rudeness in kindergarten; there's rudeness in ACLF's. Everything has changed. If you went to a tennis match 30 years ago, there was dead silence and absolute civility by the participants and the spectators. Chris Everett and Arthur Ashe and the audience behaved perfectly. Have you been to a match recently? It's a jungle out there. Likewise, the practice of law has been described as hockey while wearing suits.

What can we do about this? What can we do about incivility? It's time to stop merely defining the problem and blaming others. I want to discuss with you how we, not the others, not the judges, not the law schools, not the bad lawyers ‑ but how we, you and 1, can help solve the problem.

I suggest that there are nine ways that you can improve the environment of civility and if you will do any one, or a few of these, we can start to turn the tide.

1. LAW SCHOOLS. Stop merely (and uselessly) blaming them. Change the law schools. Go to your friendly deans and, professors and persuade them, pressure them, bribe them with strings on your gifts and bequests. Tell them not just to teach advocacy, but to teach civility, and while they're at it, have them practice what they preach. A Federal Bar Association study panel concluded

"that the law school experience plays a large role in fostering an atmosphere that promotes a lack of civility. On this score, the panel noted that the competitive nature of the law school experience, in which class standing and grades are all‑important when it comes to landing a good job upon graduation, often influences the young lawyers approach to practice. Moreover, the Socratic. Method employed in legal education often results in the disparagement of the student by the professor. This has the unfortunate consequence of motivating the young law graduate to engage in interpersonal relations that may be aimed at disparaging others". 8/

Get the law schools to make some changes.

II. JUDGES. Again, don't just blame them: work with them, change them and educate them. There are two ways that judges affect civility. First, they are role models. Unfortunately, some judges are rude ‑ not nearly as many as rude lawyers, but there are some. Judges who are rude to lawyers, witnesses, jurists and everyone else. Don't cover for them. Tell them that you will not accept their incivility. Don't let an Emperor's Clothes mentality permit you to tolerate rude behavior by‑judges. Everyone around a rude judge becomes rude in court and out of court.

"...courts are respected if they are respectable. Society allocates decisional authority and its functions to the authorities that it accepts. Etiquette is a bridge to acceptance". 9/

The second way in which judges can affect us is by enforcing the rules and aspirations of the bar. Let that wonderful, tolerant, decent judge know that you want him to be tough and intolerant of rudeness. He or she must exercise a greater degree of judicial control and leadership.

"The‑ profession's success in reorienting itself to the principles of etiquette and decorum depends not only upon individual observance of those principles, but also upon each judge's commitment to upholding, as an exercise of judicial authority, the principles articulated in the Lawyers's Code. A Judge's failure to insist upon compliance with the letter and spirit of the behavioral standards governing litigation erodes society's respect for, and confidence in, the law." 10/

III. Be a Role Model. Don't just talk about it, live it. Be a role model. Be civil. Don't compromise your integrity by stooping‑to the dirty tactics of your opponent. Don't become one of them. As a successful leader of the bar, you already are a role model, whether you like it or not. You're in a unique situation; young lawyers are watching you. As President Lincoln‑ advised: "As a peace maker, the lawyer has a superior opportunity of being a good man.". If you want to eliminate rudeness, be gentle. And while you are engaged in this task of being a role model, you are fulfilling a prerequisite of another role ‑ being a mentor. It's rough to be a mentor if you often challenge your opponent to fist fights. Being a mentor and being a role model go together. The influence that we have on the young members of the bar is immeasurable. Twenty years ago I was working for Walter Beckham and Bill Hicks. I can tell you from my personal experience that you learn from such role models.

IV. Mentor. This is the most important thing you can do. And it has wonderful effects. Teach. Preach. Be a mentor. At a panel discussion in 1990, a former practicing lawyer, who became Dean of Notre Dame Law School, told the panel that

"When I graduated from law school twentynine years ago, people learned to practice law at the feet of a master. Lawyers would take you under their wing, either within your firm or, in my case, at a government agency and later at a law firm. Even if you went into sole practice, there was someone in town to mentor to you and teach the practice of law. Inevitably, what also was taught was professionalism ... Somewhere along the line in the last thirty years, however, lawyering became more expensive. Overhead skyrocketed, reflecting huge increases in the costs of associates salaries and training, office space, libraries, computers, and so on. Efficiency became a priority, and the mentoring system broke down. The seniors were pressured to increase their billable hours and could no longer afford to spend time with the young people coming in. In the meantime, no one was teaching practice or, incidentally, professionalism... ."11/

There are three stages in your professional life: You learn, you do, you pay back. You should role model in your firm, or outside your firm. Pick one or more young lawyers and start teaching them, or showing them, not just evidence and advocacy, but civility. It may be time‑consuming, but it's worthwhile. Think about the legends who mentored you ‑ realize how warmly you feel when you think about them. It would be nice to give someone else the privilege of feeling that way about you.

I'd like you all to think real hard before you select the person or persons that you want to be your protege. The normal tendency is to select someone like yourself, someone from your background, someone who went to the same or similar school, someone who plays the same sports, someone who can carry you as a golf or tennis partner. That person, it is clear, is wonderful: just like you. But I'd like you to reconsider. That person needs you, but there are others who need you even more. Others who are different than you are. I'd like you to consider mentoring a female. I'm not just saying that to curry favor with our wonderful women members and guests, (although I need all the points I can score). In fact, my personal opinion is that women lawyers need more mentoring in civility than do male lawyers. Judges and opposing counsel and clients have made it difficult, if not impossible, for young women to be competitive, aggressive and assertive without being called ugly names. It's frustrating to attempt to be a zealous advocate if you're female. Women need your help; they need your guidance. And one way in ‑which you'll be a great help is if you will let your buddies, the friendly judges, and your opposing counsel, know that this young lady is your student, your project, your protege. They just might look at her differently and treat her differently. They just might put on rose‑colored glasses and let her work her way through these difficulties while gaining her confidence. It would be a great help to a segment of the, bar that we have not treated fairly. I also suggest that in addition to women, you select other minorities to mentor.

IV. Listen to Your Conscience. When there are disagreements between your conscience and your client, always obey your conscience. Remember that the conflict is between the clients, not the lawyers. You, and only you, not your clients, are responsible for your behavior.

"As the competition for clients grows even keener ... the more willing some members of the profession are to rise, or actually fall, to the client's expectation of appropriate professional behavior. In other words, in many cases it is simply a fear that we will lose our clients if we are not as ruthless and hostile as they expect, that causes us to resort to extremes." 12/

Lowering ourselves to our clients' expectations, has achieved new highs, or lows.

In Coconut Grove, a suburb of Miami, Florida, a lawyer last year took out a $5400.00 billboard ad which said ,"We Kick Buff". It shows a lawyer in a suit with a briefcase in his hand booting someone's backside. When interviewed by the media, the lawyer explained what he believed clients really want:

"They're not looking for a guy who coaches Little League. They don't want a wimp. They want a lawyer who means business, an animal who's going to get the job done, whatever it takes ‑ as long as it's legal. I'm an honest lawyer. I just don't take crap." 13/

 Do you realize how appalling this is? Is there anyone here who considers himself "an animal"? Who would be proud of being described as "an animal"? I guarantee you that most of the great advocates in this country have coached little league.

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