The Goodman Lecture
Looking Back and Looking Forward on Learning in Professionalism
February 20, 2009
Let me say immediately how honoured I am to be invited to give this year’s Goodman Lecture, particularly at the conclusion of such an important symposium.
Today has been about how best to advance the cause of professional responsibility in the legal profession, something all of us care about. We have heard and discussed many interesting perspectives, but with a clear understanding that pursuit of the objective must be ongoing and sustained. As we go forward, we will continue to refine the ideas and improve their implementation. Today is merely a step along the way.
I propose to add my own thoughts, by reflecting a little on the past, and then describing my hopes for the future of learning in professionalism. Let me begin at what was the beginning for each of us.
I suspect we all remember that day well, the day when we first told our family and friends that we were going to law school. Undoubtedly, some of us were met by the most recent lawyer joke – something about lawyers and rats, or lawyers and sharks, or lawyers and light bulbs. But underneath, there was almost always a quiet admiration and pride that we had decided to become a part of something both important and valued, the legal profession.
We did not consider it to be a cult, although undoubtedly it had its ceremonies and rituals and thought of itself an in group. Nor did it really seem to be a culture, although it clearly had its distinctive customs and outlooks, and would give us the label by which we would be identified from then on: we would be lawyers. Rather it was a profession, although we had only the vaguest understanding of what that meant.
Little did we know then that most of us would inevitably spend time exploring its meaning, either explicitly or implicitly, either consciously or subconsciously, attempting to answer in one way or another what it means for a lawyer to say that he or she is a member of a profession. The ongoing quest for how best to live one’s professional life as a lawyer necessarily lasts a lifetime. It is inevitably a journey of lifelong learning.
Lawyers love, indeed are addicted to, definitions and professionalism is a slippery term. Many alternatives can be conceived. Let me describe just several.
For lawyers, the most venerable conception of professionalism focuses on the paradigm of the zealous advocate. The sole professional obligation of the lawyer is described as the duty to advance the client’s objectives “zealously within the bounds of the law”. In this conception, this is both a necessary, but also a sufficient condition of professionalism, because it is assumed that if this happens justice will be done. In the famous words of Lord Brougham:
An advocate in the discharge of his duty knows but one person in all the world, and that person is his client. The lawyer’s first and only duty is to save that client by all means and expedients, and at all hazards and costs to other persons, among them to himself.
A somewhat broader, but related conception reflects the notion articulated so well by Benjamin Cardozo that being a lawyer is a privilege overlain with responsibilities. Legal ethics viewed this way are mostly about rules that prohibit a lawyer from engaging in specified conduct. As Anthony Kronman put it:
One assumes that one becomes an ethical lawyer by mastering the complex body of rules that govern a lawyer’s relations with clients, adversaries, officials and other third parties and that these rules define, perhaps exhaust, the subject of professional responsibility.
While broader than the first conception, this remains at heart a negative approach to professionalism in a world where I think lawyers seek more. In a paper done in 2002, the Chief Justice of Ontario’s Advisory Committee on Professionalism described a considerably richer vision. It uses language that is much more positive than the proscriptions of a rules based notion. It begins this way:
Professionalism as a personal characteristic is revealed in an attitude and approach to an occupation that is commonly characterized by intelligence, integrity, maturity and thoughtfulness. The expectation among lawyers, whose occupation is defined as a profession, and in the public who receive legal services, is that professionalism will inform a lawyer’s work and conduct.
The Advisory Committee’s conception goes on to describe what it calls the building blocks of professionalism:
Defining the elements of professionalism involves identification and discussion of its various components. They are: scholarship, integrity, honour, leadership, independence, pride, spirit, collegiality, service, and balanced commercialism.
The Committee then goes on to unpack each of these notions. For example, scholarship refers to the capacity to provide competent legal services, independent advice and sound judgment, acquired through formal education, experience, mentors, the example of peers and continuing legal education. Or integrity, which is described as not just the observing of ethical standards established by the Law Society, but also a shared collective responsibility for ensuring, so far as practicable, that the profession as a whole discharges its roles appropriately and in the public interest, which is its part of the social contract under which society has delegated to it the power of self regulation. Or balanced commercialism, that is, being dedicated to serving the public with income and status as worthy but not primary goals. This was famously described by Roscoe Pound in 1953:
The term [professionalism] 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.
The last conception I want to refer to is that described as sustainable professionalism by Professor Trevor Farrow in his thoughtful article in the Osgoode Hall Law Journal. He builds on the positive approach by adding to it qualities such as pursuing equality and access to justice, and protecting the public interest, qualities that introduce seeking substantive justice as a piece of the puzzle. He argues that this makes space for lawyers’ principles, interests and life preferences, and seeks to balance them with other important interests including, but not dominated by, those of clients. He closes his article with this challenge:
We need a sustainable model of professionalism to facilitate change. As Socrates commented in The Republic, the question of how we should live our lives – or in this case how we should view ourselves as professionals – is no light matter. This is because as Martin Meyer argues in all likelihood “this society … and the world of our children will largely depend on how we view ourselves as professionals.”
This brief tour of various approaches to the concept of professionalism demonstrates the richness of the discussions that are possible in addressing what it means for a lawyer to say: “I am a member of a profession.” What is clear, I think, is that settling on a “right” answer is not a precondition to advancing the cause. Whether one focuses primarily on the mandatory or regulatory aspects of professionalism or on its aspirational aspects, there is a shared recognition that being a lawyer means something more than having a job, something valuable. It entails duties to others, and ways of acting in living one’s professional life.
But then one might ask: why is professionalism important? Why does all this matter? Let me answer in three ways.
First, it is essential if the public is to have confidence in the justice system. As the Advisory Committee’s paper says, the public expects that professionalism will inform a lawyer’s work and conduct. Lawyers perform services that are essential for the proper functioning of a civil society. They make the system of justice function, and they occupy significant positions of leadership in the community. In return, they are accorded a certain stature and prestige because of the expectation that they will bring to their tasks the values and attitudes that are expected to be exemplified by the lawyer as professional. If this expectation is disappointed, faith in the justice system is eroded, at great cost not just to the system, but to the rule of law that depends on it. It is not to be forgotten that, as Oliver Wendell Holmes said:
Law is nothing unless behind it stands a warm, living public opinion.
The second reason I offer is rather more mechanical. If the justice system is to effectively resolve disputes, it is essential that lawyers bring to their work a healthy sense of professionalism. Many of the regulatory aspects of professionalism play a role here. Rules designed to ensure confidentiality between lawyer and client or to prevent conflicts of interest are but two examples. However aspirational aspects of professionalism are important as well. Seeking to ensure access to justice is just one obvious example.
Third, I think professionalism matters if we are to ensure that we will be able to provide the satisfying career opportunities for the young people of tomorrow that will be so necessary if the legal profession is to continue to successfully renew itself. Every year, when I have the privilege of spending a week with the first year students at this law school and when I do so at law schools elsewhere in Ontario, I am forcibly struck not just by their intelligence but also by their sense of idealism. For most, there is a deep seated desire to make a contribution to the justice system and to help make their world a better place. If we are not to leave them disappointed, and seeking alternative careers, it is vital that we nurture professionalism in all its dimensions, but perhaps most of all in its aspirational dimensions.
If professionalism matters in these ways, and undoubtedly in others, it is very tempting to immediately embark on an inquiry into the current state of its health. How bad is it and how much worse can it get? Indeed, in the past, much of the work on professionalism has been in response to a sense, sometimes studied, more often anecdotal, that there has been an unfortunate decline in professionalism throughout the practice of law. I will resist that temptation for two reasons. First it would be all too easy to talk oneself into a pessimistic funk by doing so. And secondly, it was ever thus. As Professor Deborah Rhode has said:
Lawyers belong to a profession permanently in decline. Or so it appears in the chronic laments by critics within and outside the bar. So I will attempt my sketch of where we have come from in learning in professionalism in a way that is simply descriptive but does not seek to determine whether the curve of history is rising or in freefall.
Historically, for lawyers in Ontario, learning about professionalism was mostly about being a gentleman, something that was considered rather more about breeding than about education. While from its beginning in 1797, the Law Society of Upper Canada promulgated rules for compliance with professional standards, throughout the 19th century, the legal profession was governed, in Christopher Moore’s phrase, as much by codes of gentility as by books of rules.
By the early 20th century, professionalism had built on the shared social culture from which lawyers came, to centre on definitions of inappropriate professional behaviour as defined by the Law Society. In the 1920s, organizations like the newly formed Canadian Bar Association began crusading for higher professional standards than the narrow “thou shalt not” of the regulator. This resulted in the CBA’s canons of ethics which purported to describe a lawyer’s obligations as a minister of justice, an officer of the court, his client’s advocate and a member of an ancient, honourable and learned profession. However, the focus still remained very much on a rules based notion of professionalism.
By the middle of the last century, little had changed save the level of detail of the proscribed conduct. For example, although it might surprise today’s Law Foundation of Ontario, accounting rules prohibited pocketing the interest on trust accounts. Advertising was prohibited. Even how lawyers should list their names in the phone book was prescribed in the name of the dignity of the profession. The rules of the regulator – what conduct could not be engaged in if one wished to call oneself a lawyer – had become a major vehicle for learning in professionalism.
The more aspirational dimensions of professionalism – how a lawyer should aspire to behave in pursuit of true professionalism – were left to other less explicit means of communication. The coherence of the bar, its shared professional values, and the mentoring provided by older lawyers were of vital importance in this exercise. In an article written in 1968, the eminent Arthur Martin described this way of learning professionalism:
A magnificent tradition exists among the senior members of the bar of willingness to make their judgment and experience available to their colleagues and especially to the younger members of the bar without regard to compensation.
This went beyond ethical challenges that might arise in a particular case. For example, Justice Martin described the expectation that existed before legal aid that defence lawyers would devote a substantial part of their time to the defence of the indigent. In ways like this, apirational dimensions of professionalism were passed from generation to generation.
Through much of the last century, one way in which learning in professionalism did not take place was through the formal teaching of it. Even someone as youthful as Justice Rosie Abella could describe her own legal education experience this way:
When I graduated from law school no one taught ethics or professionalism. In the Bar Admission Course the then Chief Justice of the Province gave a one hour lecture on how lawyers should behave. He told the over 500 students never to wear brown suits and white socks a largely irrelevant observation for the ten women in the room who nonetheless shared the Chief Justices view of brown suits.
However, by the 1990s, significant winds of change had started to blow. In its 1994 role statement, the Law Society explicitly took on professionalism as its brand, declaring that the legal profession exists in the public interest to advance the cause of justice and the rule of law. By the turn of the millennium, it had completely revised and modernized its rules of professional conduct, to simplify the mandatory aspects of professionalism and to expand its attention to the aspirational aspects of what it means for lawyers to be professionals.
At the same time, leading organizations of lawyers were putting their shoulders to the wheel. For example, the Advocates Society produced and disseminated valuable materials to assist lawyers to improve the civility with which they conduct their activities.
In addition, the realization was rapidly growing of the need to advance the learning of professionalism by formally teaching it. The Bar Admission Course had come to include sessions on professionalism. In the legal academy, Professor Brent Cotter published his seminal report, addressing two questions: the status of the teaching and learning of professional responsibility in Canadian legal education today; and how to change the lack of resources, co-ordination and pedagogical excitement that seem to impair the efforts of legal education providers who want to contribute more to an ethically aware profession.
In 2000 the Honourable Roy McMurtry, then the Chief Justice of Ontario, and Justice Robert Armstrong, then the Treasurer of the Law Society, established the Chief Justice’s Advisory Committee on Professionalism. Responding to a widely perceived need to more effectively promote professionalism, it had the moral authority derive from its makeup – senior leaders of the three pillars of the justice system: the bench, the bar and the legal academy. It sought to advance the teaching of professionalism both in law schools and across the profession and to encourage the creation of original materials on the many aspects of professionalism through a series of colloquia.
Thus, the last 15 years have seen many positive changes in what is being done about the learning of professionalism. That brings us to the present and what we can envisage as we look forward, something that requires a hard eyed assessment of the challenges that face the cause of advancing professionalism today.
I think the most important challenge is the rise of the practice of law as a business. While there has always been tension between the commercial dimension of law and its professional dimension, the last 25 years have seen changes that are of a wholly different order of magnitude. We have seen the rise of national mega firms, with their magnetic allure for the best and brightest of the younger members of our profession. These firms tend to spread their business ways well beyond the upper reaches of the profession that they are seen to inhabit. The measure of success becomes profitability. Income expectations become the primary driver of legal activity. Billable hours come to reflect the lawyer’s ability to serve the needs of the client and the justice system. Business techniques are imported which previously would have been regarded as anathema – notions of corporate governance, firm branding, and marketing techniques are now simply a part of everyday life in law in the urban setting. While this paradigm is far from universal, it sets a powerful example that others seek to emulate.
The challenge this presents is clear. Will lawyers increasingly see anything but the narrowest aspects of professionalism – such as the most minimal compliance with the rules of professional conduct required to escape the discipline process – as a luxury they can no longer afford in the frantic scramble to do law as business?
A second challenge is the growing diversity of the profession. Here I am referring not to the wonderful growth in the ethnic and cultural diversity of the younger profession, as it comes to more closely reflect the faces of the communities it serves. Thankfully this has been the final nail in the coffin of breeding as a source of professional values.
Rather, I mean the growth of specialization that has also occurred over the last several decades. This is the inevitable result of the growing complexity of law. A consequence has been that lawyers no longer all share an identical professional culture, at least compared to the era of a simpler and more homogeneous bar. This comes at a cost to what was once an easy medium for the transmission of what remain common professional values for all lawyers.
A third challenge comes from the dramatic growth in the size of the legal profession. While the profession has its modern heroes, they seem fewer in number than once was the case. Indeed in a relative sense that is true. As a consequence, we perhaps cannot look, as we might have in the past, to role models and mentors to play quite as central a role in spreading professional values.
But there are considerations of a more hopeful sort. One has to do with the expectations of the younger profession – both expectations of lifestyle and expectations of fulfillment derived from the practice of law. My perception is that for many young people, the business of law will not be allowed to become the exclusive master it might have once been. Moreover, the desire to use the practice of law to make a difference, to improve the world, may resonate rather more broadly than it may have. If this is so, and not simply the wishful misperception of aging eyes, it is an important reality for those engaged in meeting the challenge of improving the professional responsibility of lawyers.
Then, at Ontario’s law schools, it is clear that the teaching of professional responsibility is really starting to flourish. There is now at least one course on the subject offered at virtually every law school and in many instances they are courses which must be taken by all students. Last fall, a group of the leading academics in the field, a number of whom we have heard from today, published the first text on lawyers’ ethics and professional regulation. In January, I had the privilege of attending the third annual symposium on legal ethics teaching and scholarship. Academic leaders like Dean Cotter and the cadre of young turks who were there are all deeply committed to teaching, research and writing about professionalism. It gives one great hope that in future, law students are assured of a good grounding. Moreover, the new Centre for the Legal Profession at this law school is not only responsible for today. It demonstrates how the legal academy can and will apply its learning and teaching skills to the benefit not just of law students but for those already in practice.
The Law Society too has underway initiatives that carry promise for learning in professionalism in the years ahead. To qualify for call to the bar, law students will be required to undertake a 30 hour educational program during the articling year. A large portion of the program will be devoted to professional responsibility. Of significant interest is that it will be delivered electronically, a pedagogical technique that is likely to be much more successful than traditional methods.
In addition, the Law Society has resolved to enter the world of mandatory continuing education for those in the early years of practice, and again professionalism will be part of that curriculum. The use of 21st century teaching techniques and a mandatory approach will undoubtedly both be important for the future success of learning in professionalism.
The bar can also claim its share of the growing momentum in advancing professionalism. The best example is the establishment last fall by the Advocates Society of its institute for civility and professionalism to promote the principles of professional responsibility.
Even the judiciary has become engaged in the enterprise. Judges experience the impact of professional responsibility shortcomings every day in their courtrooms, sometimes with devastating consequences. The Code/Lesage Report graphically describes how this can and does happen. In our own continuing education programs, judges are beginning to more frequently to examine the norms of professionalism to be applied in their courtrooms and how to better ensure that this happens. For example, my colleague, Marc Rosenberg, in his upcoming program on Managing Criminal Trials effectively, addresses the significant issues of professionalism that judges must often cope with in that context.
Thus while the challenges are significant, I think the present does carry great promise for the future, as we in the justice system collectively seek to enhance the role of professional responsibility in how lawyers live their lives in the profession.
This challenge extends throughout a lawyer’s career. Almost by definition it is a lifelong problem that requires lifelong learning in response. An assessment of the current context simply cements this reality. The days when it was enough to be born a gentleman to know what is required are centuries behind us. Nor can law schools be asked to do it all. Learning professional responsibility is not like learning to ride a bicycle. It is a perpetual endeavour, as issues and their contexts change. Nor can we expect a monolithic professional culture or a plentiful supply of heroes and role models to bail us out.
The reality is that lifelong learning is essential if we are to build professional responsibility so that the legal profession can serve the justice system and the public interest as it must. Successful lifelong learning requires that each of the major participants – the legal academy, the Law Society as regulator, the bar and the judiciary – all play their parts. We are all in this together. For me the good news is that with a little good luck and a little good management, this is within our grasp. Let me sketch out how my utopia might look.
For the legal academy I think it means continuing to deepen its involvement in the field. It means enhanced teaching, both with stand alone courses and within existing courses so that law students will get an even stronger grounding in the issues of professionalism. It means enhanced scholarship, that hopefully over time can become even more empirically based, which will finally erase any lingering doubts about the academic legitimacy of this subject. And it means making this learning accessible not just to law students but to the whole profession. The academy should not be diverted or alarmed if regulators require stand alone courses. This is meant neither to implicitly limit ways of teaching professional responsibility, nor signal an offloading of the responsibilities of the other major participants in the justice system. It is, I think, meant only to advance the objective we all share.
The enhanced engagement of the legal academy will undoubtedly require resources. We must all recognize this and assist in addressing it. In my utopia, the profession would set up a counterpart to the ABA Institute of Professional Responsibility in Chicago to provide invaluable support for teaching and research in the subject. As part of this kind of partnership, the legal academy would continue to broaden its engagement with the profession, bringing with it its teaching skills and its scholarship.
The bar will have to play a significantly enhanced role if the cause is to succeed. The Advocates Society has set a wonderful example with its Center. It is easy to imagine other legal organizations following suit – the Criminal Lawyers’ Association, the Ontario Bar Association and the County and District Law Presidents’ Association to name a few.
Law firms too must play their part. They must be persuaded that, if nothing else, it is in their self-interest to ensure that their lawyers act professionally, for example when mandatory dimensions of professionalism like avoiding conflicts are engaged. This will, I hope, involve not just participating in or encouraging CLE but enhancing mentoring, encouraging pro bono programs, and participating in substantive improvements of the justice system itself. In these ways, and undoubtedly others, the bar can discharge its obligation to practise law in ways that promote professionalism.
As regulator, the Law Society has a critical role. It must continue its commitment to lifelong learning in professionalism in order to protect its brand. I think this will mean continuing to enhance its emphasis on professionalism at the gatekeeper stage of professional life. It also will mean continuing to evolve mandatory continuing legal education beyond the early years of a lawyer’s career in ways that embed professionalism in the process for lawyers at all stages of their careers.
In doing this, the Law Society will have to work with the bar, the legal academy, and adult educators, such as the NJI, to determine what techniques work best in the modern world. This is one of the biggest challenges we are left with from today: how can this learning be effectively brought to bear on those who need it most?
The judiciary, too, must play its part. This will require a broader awareness of this obligation amongst judges. It will also mean enhanced efforts to educate themselves about issues of professionalism, the proper norms of professional responsibility that can be expected in the courtroom, and how best to ensure that they are observed. Judicial participation in continuing education – both in and outside their courtrooms will be important to success.
Let me conclude by saying that all this may sound impossibly idealistic and perhaps slightly naïve. However the stakes are vital, and every step along the way gets us closer to the goal. Today has been, I hope, an important step. But it should be seen as just that and no more. There is much more to be done. Carrying forward the ideas from today will help get us there. In due course, we will need to gather again to assess our progress and recommit to the lifelong learning of professionalism that is essential if the legal profession is to play its proper role in society. If anything is clear however, it is that this challenge matters, and that acting separately, we probably cannot meet it. But together, to borrow a phrase, “Yes we can”.