PROFESSIONALISM CORNER
Professionalism in a Nutshell
MARK R . OSHEROW
We are seemingly frequently being asked to identify the distinction between professionalism and ethics . They certainly overlap . And we are frequently asked to define those aspects of a lawyer ’ s conduct that exemplify professionalism . Professionalism is certainly something we as lawyers hopefully admire when we see and hear it . The qualities of professionalism manifest in different ways depending on the circumstances . In my area of work , business litigation , these qualities frequently manifest by keeping one ’ s cool under pressure , never saying things that one will regret even when highly pressed to do so , and maintaining composure in all circumstances , personal and professional . We must admit , with very few exceptions , there are times that we do not live up to these aspirations . When that has happened , taking ownership , apologizing , and rectifying the situation is always the best solution . That is what professionalism requires . I hope that taking ownership of our transgressions , which are hopefully infrequent , is what makes us both professional and human .
Sometimes looking at the most readily available and seemingly easy to understand source is the most valuable to continuing to appreciate our role as lawyers and continuing to aim for the highest ideals of our profession .
The Oath of Admission to The Florida Bar is usually a very good place to start in understanding our mandate to be professional in all things legal . As I recall from quite a long time ago , we are given a copy of the Oath suitable for framing , together with our certificate of admission to The Florida Bar . Among other things , the Oath requires ( I paraphrase here ) that we support the state and federal constitutions ; maintain respect for courts and judicial officers ; not favor or maintain frivolous litigation ; engage in the practice of law with truth and honor and not mislead a judge or jury ; maintain client confidentiality ; not profit at the expense of our clients without their permission ; protect the defenseless and oppressed ; and not pursue litigation for vengeful reasons .
Most importantly , in the context of professionalism , we are required by the Oath to practice law with fairness , integrity , and civility , in court and all written and oral communications ; and to not engage in offensive conduct (“ personality ”) and refrain from advancing facts , unless required by the justice of the cause , prejudicial to the honor or reputation of a party or witness .
As to professional ( and ethical ) conduct the Oath is supported by the Rules Regulating the Florida Bar . R . Reg . Fla . Bar 4-3.5 ( c ) provides that a lawyer shall not engage in conduct intended to disrupt a tribunal . R . Reg . Fla . Bar 4-8.2 ( a ) provides that a lawyer shall not make a statement that the lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge , mediator , arbitrator , adjudicatory officer , or public legal officer . R . Reg . Fla . Bar 4-8.4 ( a ) provides that a lawyer shall not violate or attempt to violate the Florida Rules of Professional Conduct . R . Reg . Fla . Bar 4-8.4 ( d ) provides that a lawyer shall not engage in conduct in connection with the practice of law that is prejudicial to the administration of justice , including to knowingly , or through callous indifference , disparage or humiliate other lawyers on any basis . See Fla . Bar v . Norkin , 132 So . 3d 77 ( Fla . 2013 ) (“ The Oath of Admission to The Florida Bar requires attorneys to " maintain the respect due to courts of justice and judicial officers ." Further , as provided in the Guidelines for Professional Conduct , a lawyer " always should interact with parties , counsel , witnesses , jurors or prospective jurors , court personnel , and judges with courtesy and civility , and should avoid undignified or discourteous conduct that is degrading to the court or the proceedings .").
Do we all live up to the goals we are sworn to uphold ? Sadly , while most of us do seek to uphold the integrity of our profession . there are transgressions both unintended , and sometimes intentional .
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Each of us should reflect frequently on our adherence the dictates of the Oath . The Oath we are required to live by is not particularly complex . In most circumstances determining whether the ideals underlying the Oath are being complied with is not a challenging thing to do . Take a deep breath and do so when you are in Court and when you are engaging in all of your written communications .
Don ’ t lash out and do not respond in haste in any circumstance even when you feel you or your client are being attacked . Reflect before responding . Respect the court , its rulings and the judges who render them . Remember that judges are human beings too . Show caring and respect for those in court with you , and for the system of justice we are fortunate to participate in .
There is something bigger in this than your client or their cause , winning or destroying the adversary . While we are to zealously represent our clients ( and I am aware there is currently discussion about removal of that word from our legal lexicon ), winning at the expense of professionalism may not be professionalism at all .
Mark Osherow is the Co-Chair of the Professionalism Committee of the PBCBA . His background in professionalism and ethics includes serving as a member and chair of a Palm Beach County Grievance Committee , two terms as a member of the Board of Legal Specialization and Education of The Florida Bar , serving on the standing Committee on Unlicensed Practice of Law ( UPL ) of The Florida Bar , and as a member and chair of the Business Litigation Certification Committee of The Florida Bar . He is a board certified in Business Litigation since 2006 , has been practicing law for over 34 years and in Florida since 1994 . He is a past president of the South Palm Beach County Bar Association . He is a Certified Mediator and Qualified Arbitrator . He is qualified as a Master Diver by Scuba Schools International ( SSI ).