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    Editorial: Are We Really Raising the Bar?

    Lawyers have a responsibility to alter the behaviors that tarnish their image and that of the profession. It begins with the individual attorney and starts by treating clients as people, not as cases.

    Jeffrey Sweetland; Laura Suess; Howard N. Myers

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    Wisconsin Lawyer
    Vol. 76, No. 4, April 2003

    Are We Really Raising the Bar?

    Lawyers have a responsibility to alter the behaviors that tarnish their image and that of the profession. It begins with the individual attorney and starts by treating clients as people, not as cases.

    Sidebars:

    by Howard N. MyersJeffrey P. Sweetland & Laura C. Suess

    Proposals on "raising the bar" (that is, improving the image of lawyers) will be useless and meaningless until lawyers make a serious effort to alter the behaviors that have severely tarnished their image. Too often, for a variety of reasons, some lawyers fail to clarify fee arrangements, return phone calls in a timely manner, periodically communicate with the client regarding the status of a case, or adequately explain the ongoing process. Additionally, some lawyers get involved in frivolous lawsuits, thus subjecting the profession to harsh criticism.

    The late Howard Eisenberg, dean of the Marquette Law School, once said, "The lawyers who earn the most enduring legacy as outstanding practitioners are those men and women who combine a firm grasp of substance, highly developed skills, and a moral and ethical grounding that is beyond reproach."1

    When a client presents a case to an attorney, the attorney must look at the totality of the client's concerns, particularly the client's feelings, which are never wrong. They may be irrational, but they are still the person's feelings, and they are the most important aspect of his or her reality. We, as lawyers, must never forget this simple truth.

    The attorney must not simply engage in the analytical exercise of evaluating whether a cause of action exists. The client seeks help because he or she is in a crisis. Sometimes the client presents not only a legal case but also a multifaceted personal crisis that has psychological and financial dimensions, and perhaps even medical and spiritual ones as well.

    Granted, time constraints, billing obligations, and considerations of the nature of the case may make it impractical to assist the client with every nonlegal component of the matter. However, when the lawyer probes more deeply and helps the client recognize and define all aspects of the legal and personal problem, the client may become empowered. It will then be much easier to move forward in a more productive way and identify a truly satisfactory resolution.

    The Public's Negative Perception of Lawyers

    Corporations and other organizations retain or employ lawyers as a matter of course to ensure that in their business transactions they maximize all the law's advantages and avoid all of its pitfalls. Some parties may retain lawyers as a badge of status or as a symbol of position and influence.

    Many people, however, see lawyers as something to be avoided. They can get along fine in life without an attorney and would prefer to keep it that way unless they have no other choice. Meanwhile, they will circulate all the latest lawyer jokes and share in the misperception that lawyers are the cause of all of society's ills.

    Certain high-profile cases have caused the public to take a jaundiced look at the legal system and its participants. All too often the media delight in portraying the legal profession in a negative light. Many people think that lawyers are only interested in "chasing the almighty buck" and are not genuinely concerned with the welfare of clients.3 A few years ago, a study of the Milwaukee County legal system disclosed that lawyers and court personnel had a much higher opinion of the system than did the public.4 This carries significant implications for both the profession and the legal system as a whole.

    If this is our reputation as lawyers, is it justified? Have market forces converted the practice of law from a profession to nothing more than a business? If so, how has this conversion impacted on the public's mixed perceptions about lawyers? Have we lost our sense of caring and compassion? With the influx of computers, email and fax machines, and the pressure of billable hours, are we on such a tight time schedule that we jeopardize the personal nature of the attorney-client relationship for the sake of expediency? The way a lawyer practices determines whether the client will feel satisfied with the representation. It will also determine how the client views the profession and the entire legal system.

    A Client is Not a "Case"

    The problem is further exacerbated by the failure of many attorneys to deal with each client as anything more than "a case." Attorney Stanley Clawar has stated that there is a psychological as well as a legal aspect to many client concerns.5 If this is correct, as we believe it is, a lawyer's failure to direct attention to the client's real concerns may contribute to the public's lukewarm impression about how we practice and to our profession's current unfavorable reputation.

    Within the limits established by the Rules of Professional Conduct for Attorneys,6 the attorney's representation role should naturally conform to the client's overall goals.7 According to Paul Brest, emeritus professor of law at Stanford Law School, "a good lawyer must be able to counsel clients and serve the interests of the client beyond technical expertise ... to integrate legal considerations with the business, personal, political, and other nonlegal aspects of the matter."8 Attorney Steven Keeva, author of Transforming Practices: Finding Joy and Satisfaction in the Legal Life, has added new dimensions to his practice: "... tools like compassion, mindfulness, deep and committed listening, intuition, and revisioning the law as a healing profession."9

    An attorney-counselor should exercise "independent professional judgment ... and refer not only to law but to other considerations such as moral, economic, social and political factors ... relevant to the client's situation."10 However, the lawyer's own style, preconceived notions, prejudices, and emotional makeup also have an impact on the nature and quality of the legal services that will be provided.

    Courts also have recognized that the duty of a lawyer encompasses factors outside the legal concerns of the client. In holding that a motorist stopped for driving while intoxicated should have a reasonable opportunity to consult with an attorney before submitting to a chemical test, the Minnesota Supreme Court reasoned:

    "If the objective of D.W.I. prosecutions is to get drunk drivers off the highways, into treatment, and on the way to sobriety, an attorney can play a very important role. A good lawyer is not only interested in protecting the client's legal rights, but also in the well-being and mental and physical health of the client. A lawyer has an affirmative duty to be a counselor to his client. See Minn. R. Prof. Conduct 2.1 (1985) ('In rendering an advice, a lawyer may refer not only to law but to other considerations such as moral, economic, social, and political factors, that may be relevant to the client's situation.') The lawyer may be able to persuade a problem drinker to seek treatment."11

    The lawyer has a responsibility to ensure that the client understands the limits of what complete legal and equitable redress will provide and to fully prepare the client for the realities of litigation, if litigation is what the client seeks. Reality checks are essential at every stage of the process. The lawyer should prepare the client for all of the emotional and financial stresses to which he or she will be subjected during the representation. A failure to accept this added responsibility can only perpetuate the public's unfavorable reaction to lawyers as a whole.

    We also recommend that law schools have course offerings covering the following topics:

    • proper listening and interviewing techniques
    • problem-solving and negotiating skills and ADR techniques (that is, mediation)
    • the advocacy and attorney-counselor roles
    • integration of substantive legal principles and ethical requirements with clients' needs and goals
    • a series of lectures from practitioners in various fields explaining the nature and reality of legal practices12
    • the pragmatics of practicing law.

    Conclusion

    The late Dean Eisenberg wrote that he told law students on their first day of orientation that the legal profession is said to be one of the great helping professions.13

    At the end of the representation process, clients should be satisfied that the legal aspects of their case have been properly handled. Additionally, clients should be left with peace of mind and a sense that the crisis that brought them to the lawyer has been overcome. This requires each lawyer's individual commitment to take the necessary time to adequately determine the client's concerns. "Raising the bar" will come to fruition as the image of the legal profession is improved by the deliverance of quality and caring representation.

    Endnotes

    1See Howard Eisenberg, "What's a Nice Jewish Boy Like Me Doing in a Place Like This?" 86 Marq. L. Rev. 336, 345 (2002).

    2Some commentators suggest taking the "client-centered approach" by viewing the client as a real and whole person and placing yourself in the client's shoes. See, e.g., David B.A. Bender, Paul Bergman, and Susan C. Price, Lawyers as Counselors (returning phone calls in a timely manner is significant to each and every client).

    3See Public Trust and Confidence in the Justice System, Wis. Initiative, Oct. 2000, at 78.

    4Id.

    5Stanley S. Clawar, You and Your Clients, ABA General Practice Section.

    6See SCR 20:1.1 - 20.8.5.

    7SCR 20:1.2 - Scope of Representation.

    858 Law and Contemporary Problems 5, 8 (1995).

    9Steven Keeva, My Money, My Life - An Epiphany About Lawyers, N.Y. Times, Oct. 10, 1999, Money and Business, at 10.

    10SCR 20:2.1 - Advisor.

    11Friedman v. Commissioner of Public Safety, 473 N.W.2d 828, 834-35 (Minn. 1991).

    1258 Law and Contemporary Problems, No. 3 and 4, at 8 ("The Responsibility of Law Schools").

    13See Eisenberg, supra note 1, at 344.

    Howard N. Myers, U.W. 1964, formerly a senior partner with Shneidman, Myers, et al., is presently of counsel to Shneidman, Hawks & Ehlke, Milwaukee. He is also a mediator.

    Jeffrey P. Sweetland, University of Mississippi 1984, is a shareholder in the Milwaukee office of Shneidman, Hawks & Ehlke.

    Laura Suess, William Mitchell 1997, is a former research attorney with Shneidman, Hawks & Ehlke. She is currently employed by West Publishing Co., in St. Paul, Minn.




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