by RICH CASSIDY on SEPTEMBER 26, 2010
One of my recurring interests, and a regular topic of OnLawyering.com, is lawyer professionalism, both in the generic sense, and in the capital “P” sense, by which I mean “Professionalism” as promoted by formal court rules intended to encourage professionalism at the bar.
The subject is one of current interest here in Vermont, as the Vermont Supreme Court’s Mandatory Continuing Legal Education Board, which administers our states’ Professional Rule, recently issued a Memorandum soliciting comments from the Bar to help improve the rule. The MCLE Board is considering amendments to the Rule and asked members of the bar to comment on some basic questions:
- [Whether the Professionalism] rule is understandable as presently written? If not, what changes would you suggest?
- Have the professionalism courses that you have taken taught you something different than you would have learned in an ethics course?
- Do you think professionalism should be distinguished from ethics?
- Are there enough professionalism courses available to you?
Vermont lawyers have a chance to weigh in on the Rule by emailing the MCLE Board at JUDAttyLicensing@state.vt.us
In the course of my reading, I recently came across a somewhat different perspective on professionalism in Dan Ariely’s book, Predictably Irrational: Revised and Expanded Edition (Harper Collins: New York 2009). Although he uses a few examples from the legal world, Dan Ariely is not a lawyer, he is a behavioral economist. The overall thesis of his book is that the traditional economic models for predicting economic behavior are woefully inadequate. He suggests something we should all suspect: contrary to standard economic models, “all human decisions are [not] rational and informed, motivated by an accurate concept of the worth of all goods and services and the amount of happiness (utility) all decisions are likely to produce. “ Id. at 318. He says instead that “people are susceptible to irrelevant influences from their immediate environment … irrelevant emotions, shortsightedness, and other forms of irrationality…” Id. He argues that these influences are subject to empirical research to help individuals and policy-makers better understand the real forces at work.
What has all this got to do with professionalism? It turns out, quite a lot. Ariely notes that “[t]he word ‘profession, comes from the Latin professus, meaning affirmed publically.’” Id. at 285. He mentions the historic link between the professions and religion and notes that traditionally, “[individuals who had mastered esoteric knowledge, it was said had not only a monopoly on the practice of that knowledge, but an obligation to use their power wisely and honestly.” He suggests that professional oaths were “a reminder to practitioners to regulate their own behavior, and a set of rules to be followed to fulfill the professions duties.” Id.
Ariely goes on to suggest that as the elite nature of professions have been dismantled, strict professionalism has been replaced by “flexibility, individual judgment, the law of commerce and the urge for wealth,” undermining the ethics and values on which the professions stood. Id.
All this sounds familiar. When combined with another important argument that Ariely makes about the critical importance of honesty in maintaining the trust that is essential to efficient social cooperation and commerce, his book is a powerful call to the professions — particularly the legal profession – to act to reverse the tide of declining professionalism.
Best yet, Ariely makes suggestions that may help those who want to revitalize professionalism to find a way to something about it.
First he notes the decline in the selflessness of human behavior when market norms are substituted for social norms. The idea is simple: our social selves are more selfless than our economic selves. When we bring money into play, we give ourselves permission to act in our own self-interest. Hence, Ariely tells us, the experimental data shows that when a day care center begins to fine parents for being late to pick up their children, more people will be late more of the time, than when we rely on the parents’ unspoken understanding that it is impolite to inconvenience others by being late.
Second, he points out the power of timely calls to altruistic behavior. So, Ariely tells us, comparing several groups of students used as test subjects and given different opportunities to cheat on tests and rewarding success with small amounts of money, the more opportunity, the more cheating! That’s not surprising. What is surprising is this result: when students were reminded of a moral standard like the Ten Commandments (or even a mythical MIT “Honor Code”) immediately before they took the tests, honesty soared and cheating declined! If you don’t believe it, read his book. His data is compelling.
So what do I take away from thinking about professionalism in the law in light of Ariely’s writing about behavioral economics?
First, I think that we as lawyers have a surprisingly important self-interest in maintaining and increasing lawyer professionalism. Our ability to do our work well, to earn our livings, and to feel good about what we do, rests rather heavily on public trust. To have it, we must continually earn it. And trust is a delicate resource. Whenever a renegade lawyer breaches that trust, it hurts us all.
Second, at least some of the cynicism that I have encountered about efforts to increase lawyer professionalism is unwarranted. (See “Professionalism Rule Encounters a Cynical Bar” March 10, 2010). Ariely’s work suggests that bringing moral codes to people’s attention is likely to affect their behavior. That is not to say that the way the Professionalism Rule tries to do this is the most effective approach. There may be other, or additional measures, that would be better.
For one thing, as mentioned Ariely notes the importance of the timeliness of calls to altruism. So, there may well be better ways to call lawyers to their better selves on a more regular basis than requiring annual attendance at a Professionalism seminar. For example, if memory serves me correctly, when I joined the bar, every pleading a lawyer signed and filed bore a certificate attesting that the pleading met the requirements of Rule 11. Today, by signing a pleading filed in Vermont Superior Court, the lawyer only implicitly represents that the pleading:
(1) it is not being presented for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation;
(2) the claims, defenses, and other legal contentions therein are warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of new law;
(3) the allegations and other factual contentions have evidentiary support, or, if specifically so identified, are likely to have evidentiary support after a reasonable opportunity for further investigation or discovery; and
(4) the denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on a lack of information or belief.
V.R.C.P. 11 (b). These are really pretty good standards. Perhaps the public and our profession, would be well served if these representations were required to be explicitly made, as they once were, and not just implicit.
The third thing I take away from reading Ariely is a question: Is there a way to test what measures will work to improve lawyer professionalism? Can we run some experiments to see what steps we might take to encourage greater professionalism among lawyers? I think these are questions that those involved in lawyer regulation should consider.Dan Ariely is a very interesting thinker and has a great sense of humor. You can watch Dan interview himself and distinguish between the social market and the financial market at “The Dan Ariely Show.”