Professionalism and Perfection

by Rich Cassidy on June 18, 2010

Burlington area lawyers were treated to an absorbing professionalism presentation on June 10, 2010, when the Chittenden County Bar Association sponsored a lecture and discussion led by Robert D. Rachlin, a senior Director of Vermont’s largest law firm,  Downs Rachlin Martin PLLC.

Bob Rachlin is a distinguished lawyer by any standard. A Yale University and University of Chicago Law School graduate, Bob has more than 50 years experience in a highly successful practice that has focused on civil litigation for business clients.  He also works as a mediator and has demonstrated his commitment to the Rule of Law by — among other things – the pro bono representation of two Guantánamo detainees.

Bob began his presentation at the beginning, noting that the definition of professionalism in the Vermont Supreme Court’s rule requiring education on the subject is really a description by example.  After reviewing several unrevealing dictionary definitions, Bob offered a definition of his own. He suggests:

“Professionalism is the quest for perfection in the lawyer’s intermediation to  preserve and promote the peaceful and orderly functioning of a good society composed of individuals and entities with competing interests and aspirations.”

It is a definition that is worth discussion.

I see three basic aspects to the definition: the stretch towards perfection, the idea of intermediation, and the promotion of a peaceful and orderly society in a setting rife with potential conflict.

I suppose all three aspects could be debated.

I feel comfortable with the description of the substance of lawyers’ work as intermediation, at least as the concept is broadly understood. Webster’s defines intermediation as follows:

In·ter·me·di·a·tion 

 Pronunciation: \ˌin-tər-ˌmē-dē-ˈā-shən\

 Function: noun

 Date: 1602

 : the act of coming between : intervention, mediation

This idea seems broad enough to encompass most, perhaps even all, of what lawyers do. Even in a counseling role, the client seeks a kind of intervention between the client and an outside entity. Consider for example, the lone individual who asks for estate planning advice.  What is sought relates to the client’s eventual death. No other person may be on the scene, but without some “intervention,” the law will determine the ultimate disposition of the client’s property and even his or her body. At a minimum, the client seeks information with which to decide whether he or she is satisfied with that disposition. Even without more, the lawyer’s work is in fact an ”intervention” between the client and the law, or perhaps between the client and those will be affected by the client’s death absent the use of some estate planning device or devices.

The third aspect seems serviceable to me as well. Perhaps others would be more likely to describe the idea in terms of “dispute resolution,” but on balance, I think Bob’s description of it in terms of promoting peace and order is both a more inclusive and a more accurate way to describe the ultimate goal of lawyers’ work.

But it is the first aspect, the quest for perfection, which interests me most. Some level of quality in a lawyer’s performance seems inherent in the idea that the work is “professional,” in nature. To be professional is, in effect, the opposite of being an amateur. (If you have any doubt about that proposition, read Bradshaw v. Unity Marine Corporation, Inc., 147 F. Supp 2d 668 (S.D. Tex, 2001) for a description of performances by lawyers that are reportedly thoroughly unprofessional. One wonders about the fairness of the description when you learn that the author of the opinion has himself been impeached and is now serving time in federal prison!). Although some “amateurs” in fact perform at a high level of quality, it seems to me that the lack of a guaranty of a certain level of quality is part of the distinction between an amateur and a professional.

The idea that professional services will meet some guaranteed level of quality is far short of the idea that a professional is always engaged in a quest for perfection.

As Bob Rachlin acknowledged, perfection is an unattainable goal. Worse yet, experience tells us that the final one or two percent of quality is the most expensive part of a project to produce.

So, to be committed to “professionalism,” must a lawyer be irrevocably committed to pursuing perfection? Or will some lesser level of quality do?

In a backhanded way this question reminds me of the contrast between “unbundled” or “limited scope” legal services and the more traditional view that, if a lawyer assumes responsibility for any part of a legal problem, he becomes responsible for the entire problem.  In the best of all possible worlds, the lawyer takes on the whole problem. But we do not live in that world.

The need for access to justice is great, and many of those who are not served by lawyers, are not served because they cannot afford a lawyer. And even when they can afford one, there may be very narrow constraints on the extent of the services the client can purchase.

At least in theory, lawyers serving the poor and those with moderate incomes can choose to pursue perfection on their own time and at their own expense. In fact, the reality of practice for most such lawyers is that they do not have the margin to spare to make such an effort on their own.

Serving the legal needs of those of modest means it is already challenging. If the best of our profession feel called upon to seek perfection in every professional task, I fear it will be harder still to meet those needs.

So if one must seek perfection to pursue professionalism, it seems that the pursuit must primarily be one for lawyers with well-heeled clients. That is not a prospect that I can accept.

Perfection is indeed a worthwhile individual goal, at least when it is sought in pursuit of a worthy objective.  But on balance, although the pursuit of perfection has its appeal, I think a definition of professionalism that requires it is too narrow.

Instead, I think some lesser standard of quality is an essential element of the idea of professionalism. That standard is hard to define, and I don’t mean to suggest that it is a low level. But I think it is a level of quality that reasonably competent professionals can be expected to achieve on a regular basis. It is, I think, a level of quality that is consistent with what a well-informed lay person would reasonably expect to receive from a capable professional.

With some trepidation, I offer the suggestion that good, solid legal work — but not necessarily work that nears the elusive standard of perfection — should be the expectation of those who seek to advance professionalism.

Thoughts?

Rich

{ 1 comment… read it below or add one }

Rich Cassidy June 21, 2010 at 12:19 pm

Bob Rachlin sent the following comment on this post:

“Thanks for sending the link to your thoughtful blog. Your point about perfection is well taken. In fact, I had a section in my notes about this that I had to pass over because of time.

In my Legal Profession (ethics) class at VLS I always have a unit about the place of the lawyer as part of an overall commercial environment. In it I invoke the Pareto Principle, the 80/20 rule, much as you did in your blog. Eighty percent of the value of legal work is usually achieved in twenty percent of the possible time and effort. I point out that in law school research, one’s expected to read and Shepardize® every case, leave no stone unturned. Pareto doesn’t earn A’s in law school.

When it comes to clients functioning in the real economy, legal effort and cost have to be calibrated to reflect the economic value to the client of the services. Few legal engagements require 100% of the possible. What earns an A in law school can get an F from clients, if the cost is disproportionate to the economic benefit the client realizes from the legal effort.

In a presentation I gave to my firm a few years ago, I made this point. An associated e-mailed me with the comment, “It seems as though you’re counseling us to do B- work.” In reply, I said that no, I was counseling A work for the client. My point was that A work in law school is not necessarily A work in the client’s eyes.

It’s a pity that time didn’t permit me to explore this subject at the presentation. You’re entirely correct to make the point. If I give the professionalism program again, I’ll make the time needed to emphasize it.

Regards,

Bob”

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