November 1999

Cascading Aspects of Professional Conduct and Public Protection

by Jan Michels
WSBA Executive Director
janm@wsba.org

I have been immersed in the gift of input from over 1,000 members about what is important to them in their profession, and what they want the WSBA to be. With this input, the Board developed 11 strategic goals to govern WSBA programs and services for the next three to five years. These goals are posted on the WSBA website and memorialized in reports, posters, and "one pagers" for presentations and discussions. They are also posted on my wall for constant reference. Wayne Blair’s goal was to strengthen the "professional association" element of the WSBA, after spending the last years enhancing our regulatory services. The result of the long-range planning process is a set of goals that balance regulatory and professional goals that clearly raise the Bar. Distinctions between regulatory and professional goals, however, are difficult to draw.

Washington has long lacked a formal definition of what the profession of law is. Such a definition has troubled the WSBA since its inception in 1933, yet such a definition is basic to consumer protection and professional service regulation. In September 1999, the Board of Governors adopted, for forwarding to the Supreme Court as a recommended rule, a definition of the practice of law. The Board understands that the recommendation for a rule defining the practice of law is only the first step of many which will lead to the achievement of its goal to protect the public and the profession. Having a starting point, at least, allows the other layers of concerns with the profession and professional conduct to begin a logical cascade.

Once we define what the practice of law is, we can begin to define who does it and where public protection and professional regulation rest. The twin threats to the reputation of lawyers and the delivery of quality legal services are malpractice and unlicensed practice. These are under the auspices of the court’s civil and criminal rules, are legally actionable, and are a high form of censure and accountability. Issues with the practice of law, who does it, and how it is best done are behind the Board’s Goal 5: "Address the unlicensed practice of law, multidisciplinary practice, and other external influences and market pressures that impact the delivery of legal and law-related services."

Cascading down from legal aspects of conduct are the ethical standards that regulate lawyers’ conduct and protect the public from unethical behavior. Ethical standards are depicted in the Rules of Professional Conduct and procedures for complaints and responses are described in the Rules for Lawyer Discipline. Regulation of the ethical conduct of the profession is entrusted to the WSBA by the Supreme Court. The WSBA’s long-range strategic Goal 6 is to perform this regulation in a responsible, accountable, timely and fair manner.

The next lawyer conduct goal is conduct that is responsible, civil and professional. This layer exists without formal regulation and without plans for regulation. Many members, however, have expressed concerns with lawyer conduct that is unnecessarily contentious, abusive of the process and/or uncollegial. Some bar associations have developed guidelines for professionalism; some law schools have courses in professionalism; and mentoring newer lawyers is partly about professional development, in addition to education about substantive law. There is speculation that the sheer number of lawyers in metropolitan areas or an oversaturated market for lawyers leads to unprofessional conduct. The WSBA is very concerned about how conduct that is unprofessional or lacks civility affects the image of the profession and the satisfaction lawyers feel in helping their clients solve problems. The Board has committed to Goal 3: "Improve the professional development of new lawyers" and to Goal 4: "Promote civility and professionalism in the practice of law."

This last aspect of conduct is individual and guided by the internal life of every lawyer. Guidance can only be offered. There is no right way or wrong way to maintain an economically feasible practice (or public service or government job) and lead a life that is fulfilling and satisfying. The traditional legal education and expectation for legal practice may have missed preparing lawyers sufficiently for this aspect of their lives. An unhappy person is an unhappy lawyer. A lawyer not meeting his or her financial expectations is disillusioned and perhaps disgruntled. The economics of law practice may appear to compromise decisions and behavior in ways that are foreign to an individual lawyer’s self-image. As a professional association, the WSBA shares members’ dilemmas with this aspect of their lives with Goal 1: "Provide and improve services and benefits to members statewide in response to their needs and desires."

The WSBA mission is to protect the public and serve our members. We are committed to member service in all aspects of this cascading flow of conduct in the practice of law. Though there are members who do not think a mandatory bar has any business with the professional side of the practice, an incisive line is difficult to draw. The proportion of practitioners who are solo or in small firms (fewer than four lawyers) is over 50 percent. The WSBA is a potential voice for the best interests of these members and a potential resource to them. The WSBA commits to the service and program goals we have outlined. A commitment to annual evaluation of the goals and ongoing town meetings is meant to continuously offer members the opportunity to influence the direction of the Bar.

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