Expectations in the Mirror: Lawyer Professionalism and the Errors of Mandatory Aspirations

Abstract

For years, Florida has been a leader in the professionalism movement, and state leaders have created new documents and standards to make professionalism enforceable. The rest of the nation can learn from Florida’s errors, because the Sunshine State has blurred the lines between professionalism and legal ethics. In fact, history shows that Florida is simply repeating the same mistakes that have been addressed time and time again as our system of legal ethics has evolved. At times, Florida’s professionalism concepts even contradict themselves. Indeed, from a jurisprudential perspective, even H.L.A. Hart and Lon Fuller— who otherwise disagreed over the morality of law—would probably agree that Florida’s attempt to mandate professionalism is fundamentally flawed. This Article calls for more realistic expectations in the professionalism dialogue and offers five recommendations. First, the content of the professionalism documents—and the “Professionalism Expectations” in particular—should be reduced, and limited to worthy, not banal, aspirations. Second, some of the ideas currently labelled as professionalism actually reflect minimum demands of lawyering that should be integrated into the rules or commentary of legal ethics. Third, abundant options exist for improved professionalism education, but a more informed and strategic approach is needed. Fourth, mandatory mentoring could serve as a constructive alternative to the current quasi-disciplinary panel process. Finally, if mandatory professionalism is to remain, a more transparent system is needed, both to comply with the Florida Constitution and to maintain credibility. Ultimately, while recognizing the problems with lawyer professionalism, this Article concludes that Florida’s bifurcated system of ethical rules and professionalism standards is significantly flawed—just like the people it regulates.