Virtuous Lawyer is Not an Oxymoron

The following article was published as my President’s Column in the October 2011 issue of the Georgia Bar Journal.

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Virtuous Lawyer is Not an Oxymoron

by Kenneth L. Shigley

President, State Bar of Georgia

James[1] had great unrealized potential. Son of a minister in another Southern state, he won admission to an Ivy League university but washed out during his first year and went home to complete college and law school. A marvelous storyteller, his closing arguments could hold juries spellbound. But his cleverness was so unrestrained by mere facts that judges and other lawyers learned to distrust anything he said.

With appetites as unrestrained as his legal arguments, he loved food almost as much as liquor. Over time he became a tragicomic figure, bulging out of polyester leisure suits with his hair permed into a frizzy halo around his bald pate. A persistent, scandalous rumor about his “fee couch” was confirmed by a college girl whose brother he defended in a murder case. Observing his habits, I thought that if faced with a list of the traditional seven deadly sins–pride, wrath, greed, sloth, lust, envy and gluttony–he might burst into an impression of Julie Andrews in The Sound of Music, singing “these are a few of my favorite things!” Despite his jolly veneer, James swirled into a vortex of alcohol and depression, lost his law practice and his family, and died alone far from home.

When I think of James and his fate, I am reminded of a conversation I overheard at the Haralson County courthouse on an autumn morning in 1978. Two grizzled men, tobacco juice staining their gray stubble and faded bib overalls, sat on a bench outside the back door of the courtroom. As they awaited probation revocation hearings, they looked like they could have been failed moonshiners of a slightly earlier era. I overheard a fragment of conversation between these two “old men,” who at the time were probably younger than I am now.

“What you in for?” asked the first.

“My wife’s been running down my character,” moaned the second.

Mournfully, the first man replied, “I ain’t got no character to run down.”

In my arrogant hubris, I chuckled about these two pathetic old losers. Eventually, as the scar tissue of life accumulated, I came to recall their exchange in a different light, as a plaintive cry from the bottom of a deep well of existential despair by human beings who, at the end of a long road of bad habits and poor choices, had given up on life.

With our fine educations, suits, briefcases and high-tech toys, we may see ourselves as far removed from those two codgers awaiting their probation revocations. But remembering the fate of the brilliant James, we can appreciate the importance of at least aspiring to develop virtuous habits and a character worthy of being run down by people who delight in repeating those tired lawyer jokes.

Not that I am any paragon, mind you. I’m as much a work in progress, and miss the mark as much as anyone. If my vices are less blatant than those demonstrated by James, they are no less real. The leaning towers of paper on my office floor and the change in my waistline since my last marathon four years ago demonstrate that my habits do not match my aspirations.

The Rules of Professional Conduct are necessary for drawing clear lines and setting enforceable standards.[2] Several excellent aspirational statements on professionalism and civility[3] help to gently mold our conduct to a higher standard. But none of these are sufficient to build good character. Through the cumulative effect of what one learns from parents, grandparents, teachers, clergy, scoutmasters, mentors and professional colleagues over a lifetime, accompanied by philosophy, theology, culture and common sense, we may be habituated to virtue.[4] Even if one lacked such early mentors, as long as we are on the green side of the grass it is not too late to begin a transformation.

Georgia’s state motto, “Wisdom, Justice and Moderation,” points toward timeless “hinge virtues” upon which scores of others depend–prudence (practical wisdom), fortitude (courage), temperance (moderation), justice, faith, hope and love.

Prudence, or practical wisdom, is the quintessential lawyerly virtue, essential to competent lawyering. It involves the pragmatic ability to see reality without delusions, to face good and bad in human nature, choose means and courses of action, soberly balance risks and possibilities and manage life, practice and finances.[5] The prudent lawyer can recognize that the perfect is often the enemy of the good, and that the hardest choices are not between good and bad but between good and good and between bad and bad.

One is reminded of the airline instruction to place your oxygen mask over your face before placing one on your child’s face, so you can be able to help. Similarly, practical wisdom is necessary if a lawyer is to serve clients effectively over the long haul. This prudence is “a virtue of decision making that brings together thoughtfulness, experience and analytical reasoning with empathy and humanity,” necessary to maintain a balance between sympathy and commitment to the client or matter at hand and loyalty to larger social and ethical imperatives.[6] By increasing the likelihood that choices are made with thoughtfulness, analysis and empathy, prudence reduces the likelihood of regret.[7]

Prudence includes the analysis of all the ways that things could go horribly wrong for the client’s case or transaction, and how to deal with those negative potentialities. It may dictate careful case selection, telling people they don’t have a case that should be pursued or that a defense is without merit. It includes a duty to refer or associate when a case is outside the scope of one’s expertise. Also included are good office management practices and employing the equipment, staff, training and effective management needed for efficiency in a practice area, which are things law schools don’t teach and many of us don’t do as well as we should.

The flip side is that while prudence may make us better lawyers, if we cannot tone it down when we leave the office, it may ironically bear seeds of our destruction. An acute recognition of all the bad things that may flow from a decision may contribute to a general pessimism or “paralysis by analysis.” This may be a “chicken and egg” issue, insofar as there is a correlation between a pessimistic personality type and the prudence required to excel in law. If pessimism and anxiety leads to chronic depression, the potential adverse effects on health and relationships are predictable.[8]

Fortitude includes courage and the firmness of mind and will required to stand resolute for a cause or client and work against all odds to see that justice is done, even at great personal, financial and occasionally even physical risk. Though years may pass in mundane routine, risking nothing more than a paper cut or normal fluctuations of income, any of us may at some point find it necessary to muster the courage to risk anger, contempt, retaliation and severe hardship for the sake of the law’s own good. There is no substitute for such fortitude.[9]

The future doesn’t belong to the fainthearted but to the brave.[10] We ought to love something larger than ourselves–truth, justice and the common good of the community and the nation. Fortitude moderates our fear so that we may endure in doing good, even in the face of apparently insurmountable obstacles. We cannot be whole without bravely stretching toward some cause larger than ourselves. By combining prudence and fortitude in the service of worthy purposes, we can avoid the trap of smallness of the soul.

We necessarily deal with conflict, but when our clients come to us seeking vengeance, we have an obligation to counsel peace. We may face adversaries who we dare not tempt with weakness and with whom it is necessary to deal from a position of strength. But the fortitude required of us is not the same as foolhardiness or intransigence. We must remember, in the words of President Kennedy, “that civility is not a sign of weakness, and sincerity is always subject to proof. Let us never negotiate out of fear, but let us never fear to negotiate.”[11] While there are times when a lawyer must courageously lay it all on the line, we should allow for the possibility that we may be wrong in our judgment. We must be wise in picking our battles.

Less dramatic, but no less important, we need fortitude in the daily grind of tedious, hard and unpleasant tasks, to do what needs to be done year after year without falling into destructive patterns of avoidance, procrastination, distraction and intemperance that ruins careers and lives.

Temperance, or moderation, does not refer to my great-grandmother’s support for the Prohibitionist Party candidates in every election from ratification of the 19th Amendment until her death. Rather, it is a reasonable, common sense, healthy moderation of habits and maintenance of a healthy balance in professional, personal and family life.
In the movie A Time to Kill, the young lawyer reminds his burned-out mentor–who is swaying across the lawn with a bottle of liquor in his hand–of his old aspiration to “save the world, one case at a time.” The subtext was that the old warrior had lost his will to fight for justice, at least in part because he fell victim to intemperate habits. Personal moderation and temperance for us as lawyers requires reasonableness, detached impartiality, common sense and resisting temptations that would lead to dead ends–including but not limited to the temptations of substance abuse and infidelity.

Justice is a concept debated by philosophers for millennia, but a precise definition is still somewhat elusive and subjective. At root, justice embodies not just legal positivism but a sense of fairness and morality, both within the individual and in relation to others–balance, harmony and what one writer referred to as “social music.”[12] Of course, in our daily work with conflict, that music is often discordant. For the individual practicing lawyer, our role requires a commitment both to advocate for justice for clients and to sustain the operation and the fairness in the legal system.

Remember the prophet Amos who wrote, “Let justice roll on like a river, righteousness like a never-failing stream.”[13] Though we cannot ignore economic reality, we should not be so totally focused on money that we fail to serve the cause of objective fairness. Few of us have opportunities to imitate the fictional Atticus Finch or to become a “drum major for justice” like the real life Martin Luther King Jr. But in smaller and less dramatic ways we have opportunities to promote our visions of justice. In doing so, we might keep in mind that service to others, whether organized pro bono legal work, ad hoc “low bono” labor or work with the many forms of community service, can be “billable hours for your soul.”

Faith requires a comprehensive worldview sufficient to make sense of the harsh realities we often face in the practice of law. Running ahead of pure reason, faith sees higher and farther than our own experience can. It is not mere belief rooted in intellect, or mere trust rooted in emotion. Rather, it is rooted in the heart and, dare I say it in a secular Bar Journal article, in the soul of the person in relationship with a higher power.[14] Faith motivates us to persevere and to serve even when reason tells us all is lost.

Hope is directed to the future and is more than mere wishful thinking. It includes a view that out of the messy conflicts with which we must labor in the law, something good and worthwhile may yet somehow emerge. Without hope of something better beyond our low ceiling and limited horizon, courage turns to despair. With hope, our deepest values and ideals are not meaningless subjective blips but foretastes of an objective reality, even if we are not here long enough to see it.[15]

Love in this context involves a commitment to treat others as you would have them treat you, and an unselfish concern on some level for the welfare of clients, witnesses, staff, colleagues, judges, court staff and even adversaries. It should become radically unselfish and gracious, beyond mere feeling, attraction, affection or compassion. Without love, justice turns to cruelty.[16] But to manifest love for the unlovable, we need to develop both a kind of dangerous unselfishness and a capacity to exercise “tough love.”

Prudence, fortitude, temperance, justice, faith, hope and love. Cynics may claim they are but hollow words signifying nothing to us, that the idea of a virtuous lawyer is an oxymoron. Those who have done battle in courtrooms long enough to recall when bailiffs addressed all lawyers as “Colonel” can readily identify a rogue’s gallery of such lawyers who exemplify the worst public perception of the profession as callous, self-serving, devious and indifferent to justice, truth and the public good. They would try to downgrade the very concept with mockery and ridicule. But aspiring to mold our personal and professional characters in accordance with these virtues will help equip us to fulfill a high calling as the stewards of the justice system, and remind us that despite the effects of legal education and culture, we lawyers are still humans with hearts and consciences.

Habits built upon an aspiration to adhere to these virtues may strengthen us, in the words of Gen. Douglas McArthur when he spoke of “duty honor and country”:

They make you strong enough to know when you are weak, and brave enough to face yourself when you are afraid. They teach you to be proud and unbending in honest failure, but humble and gentle in success; not to substitute words for actions, not to seek the path of comfort, but to face the stress and spur of difficulty and challenge; to learn to stand up in the storm but to have compassion on those who fall; to master yourself before you seek to master others; to have a heart that is clean, a goal that is high; to learn to laugh, yet never forget how to weep; to reach into the future yet never neglect the past; to be serious yet never to take yourself too seriously; to be modest so that you will remember the simplicity of true greatness, the open mind of true wisdom, the meekness of true strength. They give you a temper of the will, a quality of the imagination, a vigor of the emotions, a freshness of the deep springs of life, a temperamental predominance of courage over timidity, of an appetite for adventure over love of ease. They create in your heart the sense of wonder, the unfailing hope of what next, and the joy and inspiration of life.[17]

The lawyer with a heart and soul trained through striving to develop such virtuous habits may try in some small way to emulate the fictional Atticus Finch, promoting justice, fairness and morality in one’s own daily practice. We are not shown the fictional Finch’s daily grind of law practice in mundane situations devoid of potential for heroic drama. But perhaps at some point we too might become worthy of the scene where, beaten but unbowed, Atticus leaves the courtroom as the folk in the balcony stand and the Reverend admonishes Scout, “Stand up–your father’s passing.”[18]

Kenneth L. Shigley is the president of the State Bar of Georgia and can be reached at ken@carllp.com.

Endnotes
[1] “James” is a composite of many lawyers encountered over the course of my career. Any recognizable similarity to an actual person, living or dead, is coincidental.

[2] William T. Ellis and Billie J. Ellis, Beyond The Model Rules: Aristotle, Lincoln, And The Lawyer’s Aspirational Drive To An Ethical Practice, 26 T.M. Cooley L. Rev. 591 (2009).

[3] Lawyer’s Creed and Aspirational Statement on Professionalism, State Bar of Georgia Directory & Handbook, http://www.gabar.org/related_organizations/chief_justices_commission_on_professionalism/lawyers_creed/ (last visited Sept. 5, 2011); Macon Bar Association, Assurances of Professionalism, http://www.redi.net/maconbar/prof.pdf (last visited Sept. 5, 2011); Local Rules, Standards of Conduct, U. S. District Court, Middle District of Georgia, http://www.gamd.uscourts.gov/local%20rules/local%20rules%20amended%2012-1-09.pdf (last visited Sept. 5, 2011).

[4] Charles P. Nemeth, Aquinas in the Courtroom: Lawyers, Judges, and Judicial Conduct 62 (2001).

[5] Id. at 65; Robert F. Blomquist, The Pragmatically Virtuous Lawyer, 15 Widener L. Rev. 93 (2009).

[6] Jay Michaelson, In Praise Of The Pound Of Flesh: Legalism, Multiculturalism, And The Problem Of The Soul, 6 J. L. Soc’y 98, 132 (Spring 2005).

[7] Id.

[8] Martin E.P. Seligman, et al, Why Lawyers Are Unhappy, 23 Cardozo L. Rev. 33 (2001).

[9] Anthony T. Kronman, The Lost Lawyer: Failing Ideals of the Legal Profession 145 (1993).

[10] Ronald Reagan, Space Shuttle “Challenger” Tragedy Address, January 28, 1986.

[11] John F. Kennedy, Inaugural Address, January 20, 1961.

[12] Peter Kreeft, Back to Virtue: Traditional Moral Wisdom for Modern Moral Confusion (1986) (Kindle Edition, retrieved from Amazon.com).

[13] Amos 5:24 (NIV).

[14] Kreeft, supra.

[15] Id.

[16] Id.

[17] Gen. Douglas MacArthur, Sylvanus Thayer Award Acceptance Address, “Duty, Honor, Country,” U. S. Military Academy, May 12, 1962.

[18] Harper Lee, To Kill A Mockingbird (1960).

  • http://www.murphyandgarner.com Stephen E. Garner

    Bravo! Just what every lawyer needs to read before he goes into the office. This reminded me of a book I read years ago called, “In Search of Atticus Finch.” I was blessed to be mentored by two great lawyers on the right way to practice law and for this I am forever greatful to Thomas B. Murphy and Judge Michael L. Murphy. “And what does the LORD require of you but to do justly, to love mercy, and to walk humbly with your God?” (Micah 6:8). If you ever make it back out Haralson County way please come by to visit. Blessings, Stephen E. Garner