August 2008

The Creed of Professionalism Revisited

by Judge Harry J. McCarthy

In July 2001, the Board of Governors approved a Creed of Professionalism developed by the WSBA Professionalism Committee. Aspirational in spirit, the Creed is an affirmation of fundamental “principles of civil professional conduct, intended to inspire and guide lawyers in the practice of law.” Seven years later, the Creed hangs in numerous courtrooms, law offices, and bar associations, and appears to have been widely adopted by bench and bar.

Since becoming a judge, I was not surprised to find that the majority of trial lawyers are ethical and courteous attorneys who work hard and honor the profession. There also exists a minority of lawyers who are ethically and professionally “challenged.” These lawyers seem to view courtesy as a quaint notion left over from a simpler time that has little relevance to twenty-first century practice. The more enlightened attorneys instinctively know that civility is not an outdated luxury or simply a matter of proper etiquette. Civility implies a true respect for others. The disrespectful lawyer fails to appreciate that the courteous approach also has practical benefits.

When a judge or jury forms a positive impression about an attorney based on courtroom behavior, that judge or jury is more psychologically prepared to be persuaded. Conversely, I have often witnessed the negative body language of jurors who are signaling their disapproval of the arguments of boorish attorneys. Once an attorney has forfeited the trust of a judge or jury because of an unprofessional tactic, it is very difficult, and sometimes impossible, to regain.

Following jury deliberations, I frequently meet with the jurors and ask about their experiences as jurors. When there is a complaint, it often is about two things: (1) repetitious questions and/or (2) attorney behavior. Jurors express frustration with attorneys who spend less time on trial issues and too much time bickering among themselves and engaging in ad hominem attacks. When jurors mention this criticism as often as some have, the message is clear — civility not only is the professional approach, it may also be the winning approach.

The adversary system has been described as a crucible where factual contentions are vigorously tested before the truth emerges. Some insist that the trial arena is not for the faint of heart or for weak and passive souls. Yet, without adherence to basic courtesies, our system of justice would become a grinding and tedious process. As Chief Justice Warren Burger commented in a 1971 address to the American Law Institute: “Civility [is] an indispensable part — the lubricant that keeps our adversary system functioning. If we want to protect that system we must firmly insist on the lubricant.”1

Apart from risking jury disapproval and impeding the smooth functioning of the adversary system, there are even more profound consequences that result from uncivil attorney conduct. Precious time is squandered and costs escalate as dispute resolution is stymied. The litigation goals of the client may go unmet, and the attainment of a just result may be defeated. Civility in the practice of law does not mean that an attorney must sacrifice passionate advocacy. Indeed, the very best lawyers routinely combine fervent trial advocacy and a basic respect for all.

The Creed of Professionalism embodies the essential virtues of honesty, integrity, and courtesy in the practice of law. It reminds us that these qualities are the very foundation of the proper functioning of the justice system. It has been said that the legal profession is one of the great healing professions, along with the medical profession and the clergy. By converting the aspirational tenets of the Creed into action, we become a significant catalyst for this healing process while promoting clients’ interests, dispute resolution, and the overall administration of justice.

Judge Harry J. McCarthy was appointed to the King County Superior Court in September 2002 by Governor Gary Locke. He is presently assigned to the Unified Family Court. Judge McCarthy was chair of the Professionalism Committee during 2001–2002. During his tenure on the Committee, he was the guiding light behind the development of the Creed of Professionalism, spearheading the effort to get it written and adopted. He received the WSBA Professionalism Award in 2003.

NOTES
1. WSBA Bar News July 1972.

Washington State Bar Association Creed of Professionalism

As a proud member of the legal profession practicing in the state of Washington, I endorse the following principles of civil professional conduct, intended to inspire and guide lawyers in the practice of law:

• In my dealings with lawyers, parties, witnesses, members of the bench, and court staff, I will be civil and courteous and guided by fundamental tenets of integrity and fairness.
• My word is my bond in my dealings with the court, with fellow counsel and with others.
• I will endeavor to resolve differences through cooperation and negotiation, giving due consideration to alternative dispute resolution.
• I will honor appointments, commitments and case schedules, and be timely in all my communications.
• I will design the timing, manner of service, and scheduling of hearings only for proper purposes, and never for the objective of oppressing or inconveniencing my opponent.
• I will conduct myself professionally during depositions, negotiations and any other interaction with opposing counsel as if I were in the presence of a judge.
• I will be forthright and honest in my dealings with the court, opposing counsel and others.
• I will be respectful of the court, the legal profession and the litigation process in my attire and in my demeanor.
• As an officer of the court, as an advocate and as a lawyer, I will uphold the honor and dignity of the court and of the profession of law. I will strive always to instill and encourage a respectful attitude toward the courts, the litigation process and the legal profession.

This Creed is a statement of professional aspiration adopted by the Washington State Bar Association Board of Governors on July 27, 2001, and does not supplant or modify the Washington Rules of Professional Conduct.

To Order a Copy of the Creed

The WSBA Creed of Professionalism is available either unframed (printed in black and gold on heavy cream-colored paper) or mounted on a wooden plaque. Unframed copies are $4 each; plaques are $20 each. You can order by phone or online. To order by phone, call the WSBA Service Center at 800-945-WSBA (9722) or 206-443-WSBA (9722). To order online, go to the WSBA website at www.wsba.org, click on WSBA Store in the left-hand bar, and then type “Creed” in the Product Search box. The text of the Creed is also on the WSBA website at www.wsba.org/lawyers/groups/professionalism/creed.htm.