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13 Prof. Law. 1 (2001-2002)

handle is hein.journals/proflw13 and id is 1 raw text is: Does Professionalism Literature Idealize the Past and Over-Rate Civility? Is Zeal a Vice or a Cardinal Virtue? William J. rnz as the professionalism of lawyers declined so far in recent decades that today we face a crisis? Allen K. Itarris's The Pit)fessionalismn Crisis, recently published in these pages, answers this question affirmatively and emphati- cally.I A 1997 survey of professionalism literature concurs, reporting geneial agreement that the decline in the level of professionalism in recent years has been pervasive. It has occurred hi every Ibrin of praclice and in all parts of the country.2 To support these judgments conunenlators have relied mainly on reports of declining civility between lawyers, especially among litigators. Harris takes a giant step beyond his colleagues, by arguing that zeal and zealous advocacy are vices, rather than distinctive duties or virtues of an advo- cate: After at least 15 years of lament over tte presence of Rambo lawyer tactics, Rambo and his progeny-discovery abuse, vealous advocacy, zeal, zealotry (the 'z' words), incivility, frivolous law- suits and other forms of unprofesional or unethical conduct-are very much in our midst; and, by example, continue to harm the legal profession and denigrate its once positive image to the public:' In response to Harris, and to other profession- alism writers of similar persuasion, three theses tire argued here. First, the purported decline tof professionalism is unprovvcn, because the case for it displays today's problens, especially incivility, without \veighing yesterday's shortcomings in the balance. If we compare the past and the present regarding core values of the profession, it is far from clear that professionalism has declined in recent decades. Second. Harris's moral philosophy is heretical: rather than being a vice, warm Teal is a cardinal and dist'netive virtue of lawyers, ~N while civility is an important but secondary virtue. A true philosophy of advocacy recognizes-with- out attempting to eliminate--- the inherent tensions between 7eal and other advocates' duties and goals. Third, the aspirational civility codes, which Harris chaiapionsas a major part of the solution to the purported decline in prolssionalism. have their own problems. They lend to preempt what should be a richer discussion of pitifessionalism and some of them attempt to establish ideals. such as avoiding the appearance of impropriety, which are incompatible with genuine advocacy.3 Three limitations in the arguments presented here should be acknowledged. First, I do not intend to try to prove that today's lawyers are more professional than their predecessors. Instead, my intention is to offer evidence sufficient to per- suade professionalism writers to pause longer over the past than they have, and make considered comparisons, before joining the chorus of jeremi- ads about the present. Second, the evidence offered here is otlen at the level of case law and tbrtnal regulations, and prolessionalism writers rightly distinguish between everyday profession- alism and standards of required behavior. However, when formal standards were weak or not enforced, or indeed often served lawyers at the public's expense, one may reasonably question any claim that informal behavior was somehow on a higher plane. Third, much of the evidence pre- sented is front Minnesota, just as Harris relied heavily on Oklahoma evidence.4 HAS PROFESSIONALISM ON THE WHOLE DECLINED? WHEN WAS THE GOLDEN AGE? Although Harris gives brief attention to other professionalism issues, his attention, ltke most of those considering the subject, is primarily focused on civility. The evidence that Harris marshals to Conthmed on pige 4 Fall 2001 Vrlume 13 Issue Number I

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