A view from the bench: Professionalism in Court.

What does that mean to a Judge?

            What is the definition of professionalism in the legal community? In the past, scholars have distinguished ethics from professionalism by emphasizing the consequences; ethics reflected the codified and enforceable standards of the profession, while professionalism was a higher, aspirational standard.[1] Dean Roscoe Pound of Harvard Law School described a professional as follows: “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] The 1996 Report of the Professionalism Committee of the American Bar Association Section of Legal Education and Admissions to the Bar, Teaching and Learning Professionalism, states a definition to the practice of law:

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.[3]

The Florida Supreme Court recognizes that definition, or standard, as being codified and set forth in (1) the Oath of Admission to The Florida Bar; (2) The Florida Bar Creed of Professionalism; (3) The Florida Bar Ideals and Goals of Professionalism; (4) The Rules Regulating The Florida Bar; and (5) the decisions of the Florida Supreme Court.[4] The Supreme Court further recognizes that violations of the above referenced standards may very well be grounds for discipline as a violation of the Florida Rules of Professional Conduct.[5] Yet with such a broad scope for a definition of professionalism, some practitioners at times struggle to delineate between professional and unprofessional. Between passionate advocacy and bad-mannered argument. Between the right way, and the wrong way. One way to find that answer is to seek the advice of the persons that stand at the front lines everyday: judicial officers.

Retired Justice Sandra Day O’Connor of the United States Supreme Court set forth a description of professionalism: “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 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.”[6]

As Justice O’Connor illustrates for us, professionalism is not simply being courteous and showing manners to judges, attorneys, and others while in the courtroom. Professionalism is a higher standard which includes zealous advocacy for your client who is counting on you to defend their rights to the best of your abilities. Thinking of your client before thinking of yourself. Being sufficiently prepared to represent them to the best of your abilities. This is what Seventeenth Circuit Court Judge Timothy Lawrence Bailey believes. Professionalism does not necessarily mean “calm and peaceful” in the court room, Judge Bailey says. “Fiercely supporting your client is not a bad thing. In order to be professional, you need a combination of two things: courtesy and good lawyering. If you are missing one, you are not being professional. You can be loud, you can advocate, just don’t be rude.” (emphasis added) Examples Judge Bailey gave of conduct: (1) “Show up on time when you have a hearing. If you are late, apologize”; (2) “Don’t interrupt others in Court unless there is an objection to be made. Wait your turn and allow [the Judge] to hear everyone”; and (3) “No name calling.” “Polite versus rude is something we’ve learned as children. I want advocacy, I don’t mind loud passionate argument, but just don’t cross that line we all learned growing up.”  

Judge Bailey emphasizes good lawyering as being prepared and ready to advocate for your client. He added that he “can handle loud” and if it crosses the line, he can address it, however he does not want lawyers to forget to be good lawyers. “Know the rules of evidence and procedure. Know how to identify hearsay. Make objections. Know how to tell a Judge he or she is wrong. Argue emotionally, persuasively. I want to see courtesy and well mannered conduct in Court, but if the cost is fear of lawyering, I don’t want that. Advocate for your client, advocate with passion. I would much rather see loud and passionate advocacy than quiet if it comes at the expense of good lawyering.” As the Judge added, “There is no substitute to knowing your file when you come to Court.” When you are prepared, make the arguments and know the facts of the case sufficiently, that is the essence of being professional. However, when you are ill-prepared, you are doing a disservice to your client, and as the Judge addressed, “That is unprofessional.”

Judge Bailey’s take on the meaning of professionalism in the practice of law is a strong one. Undoubtedly attorneys throughout the state have found courtrooms with plaques promoting the statement: “We who labor here seek only the truth.” Professionalism is not simply being courteous to others, although as attorneys we should strive to work together to further the practice of law.[7] It also means doing your job on behalf of your client(s), to the best of your ability, to seek justice and equity, as professionalism is not simply professionalism with the court and other lawyers, but also with your clients. “… in order to arrive at good decisions, one needs not only good judges, but also good lawyers.”[8] A Judge, bound by the legal requirement to adjudicate only matters involving a real controversy, needs and in fact welcomes such advocacy in order to come to a just and confident decision on the matter.[9] So you may be asking: where the balance is for you? I would argue that is different from lawyer to lawyer, and it is up to each of us individually to determine what we consider to be acceptable and unacceptable. But remember, as Judge Bailey hinted toward, and as we have heard since we were young: do onto others as you would have them do onto you.

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Biography: Henny Lawrence Shomar practices with Tripp Scott, P.A. in Fort Lauderdale, Florida. He focuses his practice in complex litigation matters, including marital and family law, probate litigation, creditor’s rights, and general commercial litigation, in state and federal court throughout the State of Florida.