EDWARD V. SMITH, III - TexasBarCLE

PROFESSIONALISM: DEAD OR JUST ON LIFE SUPPORT?

EDWARD V. SMITH, III Smith & Stephens

8330 Meadow Road, Suite 216

Dallas, Texas 75231

[email protected]

www.SmithStephensLaw.com

State Bar of Texas

34TH ANNUAL ADVANCED ESTATE PLANNING

AND PROBATE COURSE June 23-25, 2010

San Antonio

CHAPTER 18

[EVS Documents] EVS.PAPER.00054001

EDWARD V. SMITH IIISmith & Stephens

BUSINESS ADDRESS RESIDENCE ADDRESS

8330 Meadow Rd. 4019 Wellingshire Lane

Suite 216 Dallas, Texas 75220

Dallas, Texas 75231 Telephone: (214) 352-5002

Telephone: (214) 373-7195

Telecopier: (214) 373-7198

Email: [email protected]

EDUCATION

University of North Texas, B.A. 1960, with honors

Southern Methodist University, J.D. 1963

BUSINESS AFFILIATIONS

1963-1994 Taylor & Mizell, P.C.

1994-1996 Locke Purnell Rain Harrell

1996-2005 Graham & Smith, L.L.P.

2006- July 1, 2008 Edward V. Smith III, P.C.

July 1, 2008- Smith& Stephens

PROFESSIONAL ACTIVITIES

State Bar of Texas: Certified by the State Bar of Texas as a specialist in Estate Planning and Probate law in December, 1977.

Court appointed mediator since 1990.

For the past 37 years, lectured on behalf of the Texas State Bar and others in the field of Estate Planning

and Probate. Author of articles and papers dealing with estate planning and probate topics, fiduciary

liability and alternative dispute resolution. Course Director Advanced Estate Planning and Probate

Course.

Past member of the Real Estate Probate and Trust Council. Lifetime fellow, Texas Bar Foundation.

Member of the College of the State Bar. State Bar Special Task Force on Uniform Trust Act.

Dallas Bar Association.: Past Chairman, Probate Section; Past Chairman, Estate Planning and Probate Section of Continuing Legal

Education Committee. Member of Professionalism Committee, Dallas County, occasionally elected (1985-

2007) as Special Judge of Probate Court and Probate Court Number Two to sit during the absence of the

sitting Judge. Elected to the position by Dallas lawyers pursuant to state statutes.

American College Of Trust

and Estate Counsel :Elected as a Fellow in the College in 1981. Membership is less than one-half of one percent of lawyers

practicing in America. Served a five-year term as Texas State Chairman. Served on various Committees

of College as well as Special Task Forces. Past member of the Board of Regents of College.

COM MUNITY SERVICE

University of

North Texas: Appointed by Governor Dolph Briscoe to the Board of Regents of the University of North Texas until term

expired May 25, 1979. Served on the Board of Directors of the Professional Development Institute (PDI)

for ten years and Chairman for two years. Lifetime member of the President’s Council. Former Co-

Chairman with wife, Nikki DeShazo.

UNT Educational

Foundation: Past Chairman of the Board of Trustees of the UNT Educational Foundation.


University of North Texas

Alumni Association: Former President, Dallas Alumni Association and former President, National Alumni Association.

Awards: (i) Outstanding Service Award, (ii) President’s Citation, and (iii) Distinguished Alumnus.

University of the

Ozarks: On January 1, 1985, assumed duties as a member of the Board of Trustees. Re-elected to a new three year

term in 1987. Was asked to rejoin Board in 1992. Elected Chairman of the Board in 1994. During term,

as Chairman two new buildings were constructed and three were completely renovated and expanded.

Capital Campaign raised 16 million dollars. After president resigned, appointed interim president and

served as Chair of Selection Committee that elected a new president. In October 1997, was elected

lifetime Trustee.

CHURCH ACTIVITIES:

A lifetime member of the Westminster Presbyterian Church. Served on the Board of Deacons, and

Chairman of the Board of Deacons. Ordained Elder in the Presbyterian Church, and served as

Chairman of various committees on the Bench of Elders. Served as one of three Trustees for Church.

The office of Trustee in the Presbyterian Church relates to the holding of title to the real property for

the Church and also dealing with some Church funds. Served as Clerk of the Session for Westminster

Presbyterian Church.

Served as Chairman of the New Church Development Board of Grace Union Presbytery. Also a

Trustee and Chairman of the Board of the Grace Foundation. The Grace Foundation funded

Presbyterian and non-denominational endeavors such as the Dallas Night Shelter and the Stew Pot,

which furnishes meals for indigent persons.

OTHER: Former Member of the Board of Directors of the Dallas United Way

Former Member of the Board of Governors of Presbyterian Retirement Homes, Inc., Dallas

Member of Advisory Board of the Dallas Foundation

RECOGNITION

AND AWARDS: Who’s Who in Texas

Who’s Who in the South and Southwest

Who’s Who in American Law

Who’s Who in the World

International Who’s Who of Contemporary Achievement

Best LaWyers in America - Estate and Trust Lawyers

D Magazine - Named one of the Best Lawyers in Dallas and Fort Worth for 2001 and for 2003;

named Best of the Best Lawyers in Dallas for 2004

Texas Monthly - named a Super Lawyer in 2003 -2009

Appeared in March 2002 issue of Time Magazine on Family Disputes

October 1996, received the first John Tower Distinguished Alumnus award presented by the Kappa

Sigma Fraternity for contributions to profession and community

October 1993, Received special resolution from Board of Regents of University of North Texas

expressing appreciation for service to the University.

Distinguished Alumnus Award, University of North Texas, 1992.

Distinguished Alumnus Award for the private practice of law, SMU School of Law, 2005-2006.

Lifetime Achievement Award-Probate Section of Dallas Bar Association ,2006.

Morris Harrell Award for Professionalism presented by the Texas Center for Legal Ethics and the

Dallas Bar Association , 2006.

PERSONAL: Married to Nikki DeShazo, Senior Judge of the Probate Court of Dallas County, Texas. She has three

children and four grandchildren. Judge DeShazo is the past President of the National College of

Probate Judges and a former Presiding Judge of the Texas Statutory Probate Judges.


PARTIAL LIST OF ARTICLES WRITTEN AND PAPERS DELIVERED

1973: Estate Planning Primer; Greece, Turkey and Yugoslavia

1974: Estate Planning; Denmark, Sweden and Norway

1975: Representing Sellers of Real Estate Adjacent to Cities to Developers;

State Bar of Texas: Waco, March 1975; Lubbock, April 1975

Testamentary Planning with Simple Trust; State Bar of Texas, Practice Skills Course - Dallas, June 1975

1976: Will Execution; State Bar of Texas, Practice Skills Course - San Antonio

1977: Use of Trusts; State Bar of Texas, Basic Skills Course - Wichita Falls

1978: The Minor’s Trust and Gifts to Minors; Dallas Bar Association

1979: Gifts to Minors; San Antonio Estate Council

Non-Testamentary Planning; State Bar of Texas - Amarillo, San Antonio, Midland and Houston

Short Term Trusts-Minor’s Trusts-Gifts to Minors and the Crummey Case Doctrine-Crown Case Doctrine;

State Bar of Texas - Third Annual Advanced Estate Planning and Probate institute - San Antonio

Why You Need a Will; Texas Business, February 1979

1980: Gifts to Minors; Dallas Bar Association - Probate Section

Post-Mortem Estate Planning; Southwestern Legal Foundation, Estate Planning and Probate Institute

Estate Planning Before and After Divorce; State Bar of Texas, Fourth Annual Advanced Estate Planning and

Probate Institute

1981: Estate Planning for the Second Marriage; State Bar of Texas, Advanced Family Law Course - Houston

1982: Probate Litigation; State Bar of Texas, Sixth Annual Advanced Estate Planning and Probate institute - San

Antonio

Estate Planning for the Divorced Person; Dallas Bar Association - Probate Section

1983: Pre-Mortem Planning for Post-Mortem Litigation; Southwestern Legal Foundation - Twenty-Second Annual

Institute of Wills and Trusts

His, Hers, and Ours - Estate Planning for the Multiple Marriage - Dallas Estate Council

Estate Planning for the Second Marriage - the Pre-Nuptial Agreement; Fort Worth Estate Council, October

1983

1984: Professional Liability of Estate Planners; Houston Estate Council

Responsibilities of the Estate Planning Team ; State Bar of Texas, Eighth Annual Advanced Estate Planning

and Probate Institute - Dallas

1985: Dependent Administration as Seen from Both Sides of the Bench; State Bar of Texas, Ninth Annual

Advanced Estate Planning and Probate Institute - San Antonio

Protecting Yourself Against Malpractice Claims; State Bar of Texas, Advanced Tax Institute - Dallas

Moderator: State Bar of Texas Practice Skills Course

Author and Lecturer: Dependent Administration Course for Texas Judges

Moderator: State Bar of Texas, Basic Estate Planning Skills for Attorneys and Legal Assistants

1986: The Ad Litem as an Advocate; State Bar of Texas, Tenth Annual Advanced Estate Planning and Probate

Institute - Austin

Moderator: State Bar of Texas, Practice Skills Course


1987: Recent Developments in Probate Litigation; State Bar of Texas, Eleventh Annual Advanced Estate Planning

and Probate Institute - Dallas

Recent Cases Involving Fiduciary Liability; Texas College of Probate Judges, Annual Seminar for Judges

1988: Fiduciary Liability; Dallas Estate Council

The Role of the Ad Litem ; South Texas School of Law - Houston

Basic Probate in Texas; National Business Institute

Dealing with Delinquent Estates; National College of Probate Judges - Palm Springs, California

Current Probate Developments; State Bar of Texas Association of Legal Assistants

Fiduciary Liability; Corpus Christi Estate Council

Practical Points on Estate Tax Returns; American Bar Association, Young Lawyers Division

Trust Issues; Southwestern Graduate School of Banking - Dallas

1989: Protecting Yourself from Liability; South Texas College of Law - Panel Discussion - Houston

1990: Probate Litigation; State Bar of Texas; Advanced Drafting Course - San Antonio

Recent Trends in Probate Litigation; Dallas Estate Council

Basic Probate; State Bar of Texas, Practice Skills Course - Dallas

1991: Valuations in Probate Litigation; State Bar of Texas - Austin and Midland

Recent Trends in Probate Litigation; Dallas Estate Council

1994: Alternative Dispute Resolution in Probate Cases; National College of Probate Judges - Florida

Enforcement of Bonds in Probate Proceedings; State Bar of Texas, Advanced Estate Planning and Probate

Institute - Dallas

Alternative Dispute Resolution in Probate Cases; American College of Trust and Estate Counsel - Hawaii

Alternative Dispute Resolution in Probate Cases; National College of Probate Judges - Florida

1996: Ad Litem Course: Teacher

Marion County Bar Association

Smith County Bar Association

Ad Litem Course in Guardianship Proceedings:

State Bar of Texas - Advanced Estate Planning Course - Houston

Recent Cases in Probate Litigation:

Southwestern Legal Foundation - Dallas

Texas Society of Certified Public Accountants - Dallas

1997: Ad Litem as an Advocate; South Texas School of Law - Wills and Trust Institute - Houston

1998: ADR as it Applies to Wills and Trusts; American College of Trust and Estate Counsel - Maui, Hawaii

Fiduciary Litigation; National College of Probate Judges - Destin, Florida

2000: Mediation of a Probate Dispute; University of Houston - Houston, Texas

Improving Probate Mediation; El Centro ADR Course - Dallas, Texas

2002: Removal of Executors; Advanced Estate Planning Course, Dallas, Texas

Trust Modification; South Texas School of Law, Houston, Texas

2003: ADR in Probate Disputes; American Bar Association, San Antonio, Texas

Modification of Trusts; Tarrant County Bar Association, Forth Worth, Texas

2004: Estate Planning for the Problem Child, North Texas Estate Planning Council,

Plano, Texas


2005: Planning for the Disabled, National College of Probate Judges, Amelia Island,

Florida

2007: Modification and Termination of Trusts, Lorman Institute Probate Seminar, Dallas, Texas

2009: Preparing a Client for Mediation, American College of Trust and Estate Lawyers. Williamsburg, Virginia.


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TABLE OF CONTENTS

THE CONCEPT OF PROFESSIONALISM. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

CAUSES OF DECLINING PROFESSIONALISM. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

REACTION OF THE COURTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2Professionalism, Leadership and Cooperation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2Assistance with Ethics Questions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2Mentoring. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2Disciplinary Sanctions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2Reaction of the Local Courts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

THE SOLUTION.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3The Texas Lawyer’s Creed. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3Mentoring. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6Understanding the Development and Influence of Generational Differences. . . . . . . . . . . . . . . . . . . . . . . . . . 7

CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Professionalism: Dead or Just on Life Support? Chapter 18

PROFESSIONALISM: DEAD OR JUST ON LIFE SUPPORT? Page 1


“Life is not a having and a getting, but a giving and abecoming.”

Myrna Loy, Movie Star1930s and 1940s

When I first began to gather material for thispaper, I was struck by an article prepared for the NorthCarolina court system which contained the following:

“Where were you when you heard that John F. Kennedyhad been shot? Do you remember seeing the Challengerexplosion? Were you watching tv when the O.J.Simpson verdict was announced? When didprofessionalism end among attorneys?

Although we can do nothing to correct the firstthree historical moments mentioned above, younglawyers can certainly correct and improve the problem ofthe demise of professionalism. Some younger lawyershave been labeled as baby sharks that fixate on incivility,billable hours, and winning at all costs, but those labelsare derived from my generation – not yours. Mygeneration has allowed incivility to breed moreincivility; has allowed billable hours, the bottom line,and unprofessional advertising to change your professioninto a business; and has allowed our primary goal ofjustice to be replaced by Vince Lombardi’s adage‘winning is not everything, it is the only thing.’ Butyoung lawyers can join together in a collaborative effortto rekindle the embers of professionalism and to fan thesparks of justice into a flame.” (What Young LawyersCan Do to Enhance Professionalism, The North CarolinaCourt System)

I. THE CONCEPT OF PROFESSIONALISM

The volume of scholarship on the subject oflawyer’s professionalism shows that it is a topic ofsubstantial interest among academics, jurists and thepracticing bar, as well as the community at large. Inspite of the attention devoted to the subject, however,professionalism has no uniformly accepted definition.

Besides a knowledge and ability to applyprinciples of law, the general concept of legalprofessionalism includes loftier ideals, certain sharedmoral values, that imply duty to act in the public goodwith the purpose of obtaining justice. Dean Roscoe

Pound described professionals as “a group pursuing alearned art in the spirit of public service.” (RoscoePound, The Lawyer from Antiquity to Modern Times V,1953)

Despite the definition challenges, professional isgenerally understood to include civility, both amonglawyers and between the bench and bar, competence,integrity, independence, respect for the rule of law andparticipation in community service. The termencompasses more than a minimum ethical standardincluding the ideals, traditions, and tenets associatedhistorically with the practice of law. It meanscompetence in serving the client; character and a highlyprincipled conduct; professional and civic duty;commitment and service to the client and the publicgood; it means understanding and honoring the rule oflaw and embracing the principles of moral responsibility.(Wm. Reece Smith, Jr., Teaching and LearningProfessionalism, 32 Wake Forest Law Review, 613,1997)

II. C A U S E S O F D E C L I N I N GPROFESSIONALISM

There appears to be no single reason for thedecline in professionalism. However, at least threefactors are most often cited:

(1) the competitive demands of increasingcommercialism;

(2) reflection of corresponding movementsin general societal ethics and culture; and

(3) the current structure and organization ofthe legal profession.

Law as a business. Perhaps the factor morefrequently cited as a cause of a decline inprofessionalism is the task of making money. The recentpast has seen more law schools graduate more lawyersthan ever before. The challenge to professionalism arisesfrom the increased competition for quality clientscombined with the pressure on billing rates making it notdifficult to understand the challenge. But so long as thelegal profession is a means for a livelihood,commercialism will exist. The challenge to theprofessionalism movement is to seek ways to temper the


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financial realities with a commitment to pursue thecommon good.

Social mores have changed in recent decades.Sociologists and psychologists have observed that theconvenience of modern life has corresponded with theexpectation of instant gratification. Cynicism and moralrelativism has taken hold. Some observers argue thatthese new social norms, among others, have led to afocus on the quick win instead of a reasoned approach toconflict resolution. There has been a popularization of“bull dog” lawyer, and other ethically deleteriouspractices.

So long as the legal profession is a means forlivelihood, commercialism will exist. The challenge tothe professionalism movement is to seek ways to temperthe financial realities with a commitment to pursue thecommon good.

The recent past has seen more law schoolsgraduating more lawyers than ever before. Thechallenge to professionalism arising from the increasedcompetition for quality clients, combined withdownward pressure on billing rates resulting from agenerous supply of legal services, is not difficult tounderstand.

There are other issues that are suggested aschallenges to lawyers’ professionalism. These includethe increasing size of law firms, and consequently, theabsence of senior lawyer mentoring and role modeling,the growing emphasis on advertising, and institutionalincentives towards complexity and aggressiveapplication of the procedural rules.

III. REACTION OF THE COURTS

At the annual meeting of the Conference ofChief Justices at Nashville, Tennessee on August 1,1996, a national study and action plan regarding lawyerconduct and professionalism was adopted. TheConference of Chief Justices made specificrecommendations to address specific topics of lawyerethics and professional conduct. A brief statement ofthose recommendations are as follows:

A. Professionalism, Leadership and Cooperation.

“The Appellate Court of highest jurisdiction ineach State should take a lead role in evaluating thecontemporary needs of the legal community with lawyerto lawyer professionalism and coordinating activities ofthe bench and the law schools in meeting these needs.Specific efforts should include:

l establishing a committee on professionalism orother agency under direct authority of theAppellate Court of highest jurisdiction;

l ensuring the judicial and legal education makesreference to broad social issues and their impacton professionalism and legal ethics;

l increasing the dialogue among the law schools,the courts and the practicing bar throughperiodic meetings; and

l correlating the needs of the legal profession -bench, bar, and law schools to identify issues,assess trends and set a coherent and coordinateddirection for the profession.”

B. Assistance with Ethics Questions.

“Lawyers should be provided with programs toassist in the compliance of ethical rules of conduct. StateBar programs should:

l establish a ethics hotline;l provide access to advisory opinions on the web

or compact discs; andl publish annotated volumes of professional

conduct.”

C. Mentoring.

“Judicial leadership should promote mentoringprograms for both new and established lawyers.Effective programs:

l establish mentoring opportunities for newattendees;

l establish many opportunities for solo and smallfirm practitioners;

l provide directories of lawyers who can respondto questions in different practice areas;

l provide networking opportunities for solo andsmall firm lawyers; and


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l provide technology for exchange of information.

D. Disciplinary Sanctions.

The range of disciplinary actions should besufficiently broad to address the relative severity oflawyer misconduct, including conduct unrelated to thelawyer’s legal practice. Disciplinary agencies should useavailable national standards to ensure interstateconsistency and disciplinary sanctions. All publicsanction should be reported to the national lawyerregulatory data bank of the American Bar Association.

E. Reaction of the Local Courts.

Perhaps the most cited court opinion in ourjurisdictions is Dondi Properties Corporation v.Commerce Savings and Loan Association et al 121F.R.D. 284 (N.D. Tex. 1988). In the Dondi opinion, theCourt stated “we sit en banc court to adopt standards oflitigation conduct for attorneys appearing in civil actionsin the Northern District of Texas.” Further in theopinion, it stated “we address today a problem, though ofrelatively recent origin, is so pernicious that it threatensto delay the administration of justice and to placelitigation beyond the financial reach of litigants. Withalarming frequency, we find that valuable judicial andattorney time is consumed in resolving unnecessarycontention and sharp, sharp practices between lawyers.Judges and magistrates of this Court are required todevote substantial attention to refereeing abusivelitigation tactics that range from benign incivility tooutright obstruction. Our system of justice can ill affordto devote scarce resources to supervising matters that donot advance the resolution of the merits of the case norcan justice long remain available to deserving litigants ifthe cost of litigation are fueled unnecessarily to the pointof being prohibitive.”

The Court the then went on to cite the Dallas BarAssociation’s Guidelines for Professional Courtesy andthe Lawyer’s Creed and from those they adopted thefollowing standards of practice:

1. In fulfilling his or her primary duty to the client,the lawyer must be ever conscious of the broader duty tothe judicial system that serves both attorney and client.

2. The lawyer owes, to the judiciary candor,diligence and utmost respect.

3. The lawyer owes to opposing counsel the duty ofcourtesy and cooperation, the observance of which isnecessary for the efficient administration of our systemof justice and the respect for the public it serves.

4. The lawyer unquestionably owes, to theadministration of justice, the fundamental duties ofpersonal dignity and professional integrity.

5. Lawyers should treat each other, the opposingparty, the Court, and members of the Court staff withcourtesy and civility and conduct themselves in aprofessional manner at all times.

6. A client has no right to demand that counselabuse the opposite party or indulge in offensive conduct.The lawyer should always treat adverse witnesses andsuitors with fairness and due consideration.

7. In adversary proceedings, clients are litigants andthough ill feelings may exist between clients, such illfeeling should not influence a lawyer’s conduct, attitudeor demeanor towards opposing lawyers.

8. A lawyer should not use any form of discovery,or the scheduling of discovery, as a means of harassingopposing counsel or counsel’s client.

9. Lawyers will be punctual in communication withothers and in honoring scheduled appearances, and willrecognize that neglect and tardiness are demeaning to thelawyer and to the judicial system.

10. If a fellow member of the Bar makes a justrequest for cooperation, or seeks schedulingaccommodation, the lawyer will not arbitrarily orunreasonably withhold consent.

11. Effective advocacy does not require antagonisticor obnoxious behavior and members of the Bar willadhere to the highest standard of conduct which judges,lawyers, clients and the public may rightfully expect.


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IV. THE SOLUTION

A. The Texas Lawyer’s Creed.

A long way toward curing criticism about lawyercivility and professionalism would be if every lawyerwould abide by the Texas Lawyer’s Creed as mandatedand promulgated by the Supreme Court of the State ofTexas and the Court of Criminal Appeals on November7, 1989 as set forth below:

The Texas Lawyer’s Creed, A Mandate forProfessionalism

I am a lawyer. I am entrusted by the People of Texas topreserve and improve our legal system. I am licensed bythe Supreme Court of Texas. I must therefore abide bythe Texas Disciplinary Rules of Professional Conduct,but I know that Professionalism requires more thanmerely avoiding the violation of laws and rules. I amcommitted to this Creed for no other reason than it isright.

Our Legal System

A lawyer owes to the administration of justice personaldignity, integrity, and independence. A lawyer shouldalways adhere to the highest principles ofprofessionalism.

I am passionately proud of my profession. Therefore,"My word is my bond."

1. I am responsible to assure that all personshave access to competent representationregardless of wealth or position in life.

2. I commit myself to an adequate and effective probono program.

3. I am obligated to educate my clients, the public,and other lawyers regarding the spirit and letterof this Creed.

4. I will always be conscious of my duty to thejudicial system.

Lawyer To Client

A lawyer owes to a client allegiance, learning, skill,and industry. A lawyer shall employ all appropriatelegal means to protect and advance the client’slegitimate rights, claims, and objectives. A lawyershall not be deterred by any real or imagined fear ofjudicial disfavor or public unpopularity, nor beinfluenced by mere self-interest.

1. I will advise my client of the contents of thiscreed when undertaking representation.

2. I will endeavor to achieve my client’s lawfulobjectives in legal transactions and inlitigation as quickly and economically aspossible.

3. I will be loyal and committed to my client’slawful objectives, but I will not permit thatloyalty and commitment to interfere with myduty to provide objective and independentadvice.

4. I will advise my client that civility and courtesyare expected and are not a sign of weakness.

5. I will advise my client of proper and expectedbehavior.

6. I will treat adverse parties and witnesses withfairness and due consideration. A client has noright to demand that I abuse anyone or indulge inany offensive conduct.

7. I will advise my client that we will not pursueconduct which is intended primarily to harass ordrain the financial resources of the opposingparty.

8. I will advise my client that we will not pursuetactics which are intended primarily for delay.

9. I will advise my client that we will not pursue

any course of action which is without merit.

10. I will advise my client that I reserve the right todetermine whether to grant accommodations toopposing counsel in all matters that do not


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adversely affect my client’s lawful objectives. Aclient has no right to instruct me to refusereasonable requests made by other counsel.

11. I will advise my client regarding the availabilityof mediation, arbitration, and other alternativemethods of resolving and settling disputes.

Lawyer To Lawyer

A lawyer owes to opposing counsel, in the conductof legal transactions and the pursuit of litigation,courtesy, candor, cooperation, and scrupulousobservance of all agreements and mutualunderstandings. Ill feelings between clients shall notinfluence a lawyer’s conduct, attitude, or demeanortoward opposing counsel. A lawyer shall not engagein unprofessional conduct in retaliation against otherunprofessional conduct.

1. I will be courteous, civil, and prompt in oral andwritten communications.

2. I will not quarrel over matters of form or style,but I will concentrate on matters of substance.

3. I will identify for other counsel or parties allchanges I have made in documents submitted forreview.

4. I will attempt to prepare documents whichcorrectly reflect the agreement of the parties. Iwill not include provisions which have not beenagreed upon or omit provisions which arenecessary to reflect the agreement of the parties.

5. I will notify opposing counsel, and, ifappropriate, the Court or other persons, as soonas practicable, when hearings, depositions,meetings, conferences or closings are cancelled.

6. I will agree to reasonable requests for extensions

of time and for waiver of procedural formalities,provided legitimate objectives of my client willnot be adversely affected.

7. I will not serve motions or pleadings in any

manner that unfairly limits another party’sopportunity to respond.

8. I will attempt to resolve by agreement myobjections to matters contained in pleadings anddiscovery requests and responses.

9. I can disagree without being disagreeable. Irecognize that effective representation does notrequire antagonistic or obnoxious behavior. Iwill neither encourage nor knowingly permit myclient or anyone under my control to do anythingwhich would be unethical or improper if done byme.

10. I will not, without good cause, attribute badmotives or unethical conduct to opposingcounsel nor bring the profession into disreputeby unfounded accusations of impropriety. I willavoid disparaging personal remarks or acrimonytowards opposing counsel, parties and witnesses.I will not be influenced by any ill feelingbetween clients. I will abstain from any allusionto personal peculiarities or idiosyncrasies ofopposing counsel.

11. I will not take advantage, by causing any default

or dismissal to be rendered, when I know theidentity of an opposing counsel, without first

inquiring about that counsel’s intention toproceed.

12. I will promptly submit orders to the Court. I willdeliver copies to opposing counsel before orcontemporaneously with submission to theCourt. I will promptly approve the form oforders which accurately reflect the substance ofthe rulings of the Court.

13. I will not attempt to gain an unfair advantage bysending the Court or its staff correspondence orcopies of correspondence.

14. I will not arbitrarily schedule a deposition, Courtappearance, or hearing until a good faith efforthas been made to schedule it by agreement.


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15. I will readily stipulate to undisputed facts inorder to avoid needless costs or inconveniencefor any party.

16. I will refrain from excessive and abusivediscovery.

17. I will comply with all reasonable discoveryrequests. I will not resist discovery requestswhich are not objectionable. I will not makeobjections nor give instructions to a witness forthe purpose of delaying or obstructing thediscovery process. I will encourage witnesses torespond to all deposition questions which arereasonably understandable. I will neitherencourage nor permit my witness to quibbleabout words where their meaning is reasonablyclear.

18. I will not seek Court intervention to obtaindiscovery which is clearly improper and notdiscoverable.

19. I will not seek sanctions or disqualificationunless it is necessary for protection of my

client’s lawful objectives or is fully justified bythe circumstances.

Lawyer And Judge

Lawyers and judges owe each other respect, diligence,candor, punctuality, and protection against unjust andimproper criticism and attack. Lawyers and judges areequally responsible to protect the dignity andindependence of the Court and the profession.

I will always recognize that the position of judge is thesymbol of both the judicial system and administration ofjustice. I will refrain from conduct that degrades thissymbol.

I will conduct myself in Court in a professional mannerand demonstrate my respect for the Court and the law.

I will treat counsel, opposing parties, the Court, andmembers of the Court staff with courtesy and civility.

1. I will be punctual.

2. I will not engage in any conduct which offendsthe dignity and decorum of proceedings

. I will not knowingly misrepresent, mischaracterize,misquote or miscite facts or authorities to gain anadvantage.

I will respect the rulings of the Court.1. I will give the issues in controversy deliberate,

impartial and studied analysis and consideration.

2. I will be considerate of the time constraints andpressures imposed upon the Court, Court staffand counsel in efforts to administer justice andresolve disputes.

(Texas Bar Foundation, Texas Lawyer’s Creed,http://www.txbf.org/creed)

B. Mentoring.

Three years ago the Dallas Bar Associationinitiated a program entitled “Transition to the LawPractice.” The purpose of this was to allow first yearstudents to enroll in the program in which they would bementored by an older lawyer. The mentor must committo one year of working with the mentee. As part of theprogram, there are six continuing education programs inwhich the mentor and the mentee would attend lunch atthe Dallas Bar headquarters. Those subjects range fromavoiding malpractice to how to bill a client. In the off-months, the mentor is supposed to have one social eventwith the mentee. This might be meeting the mentee fora drink or meeting the mentee for lunch or dinner. Myexperience as a mentor has shown me that I havereceived a great deal of satisfaction by sharing ideas withmy mentee. The reward is the thanks you receive at theend of the course from the mentee plus, in my case, Ihave had a continuing interaction with the two previousmentees.

The State Bar of Texas has now initiated atransition to practice. As stated in the October 2009Texas Bar Journal, State Bar President Roland Johnsonsaid “During times like these, the benefits of mentoringare invaluable. As a profession we need to connect withyoung lawyers as early in their careers as possible toensure that they are prepared for the responsible practiceof law and are committed to professionalism.”


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Like the Dallas Bar pilot project, the State Barprogram is designed to last twelve months, althoughmentors and the new lawyers with whom they are teamedwith, may continue to meet and share their experiences.The program is targeted towards lawyers in their firstseveral years of licensure. Every other month, a groupmeeting of all program participants take place withprogramming planned around a particular mentoringtopic or topics. During off months, mentors and menteesarrange to meet each other one on one.

Transition programs in other States have provedto be successful. In Georgia (after which the Dallas pilotproject was fashioned), roughly 60% of new lawyerswho participated in the State’s pilot project reported thatthey were very satisfied with their legal career. Further,surveys showed that the legal skills the transitionprogram had the greatest impact on were “the handlingof ethical aspects of law practice in dealing with others.”(See the “Texas State Bar Transaction to Practice”,Texas Bar Journal, October 2009)

C. Understanding the Development andInfluence of Generational Differences.

Many commentators blame the lack of civilityamong lawyers as an intergenerational problem. Somesay that one of the many surprises in store for younglawyers, besides the deluge of phone calls from relativesasking for free legal advice, is a concern voiced by“older” attorneys over the decline of professionalism andcivility among member of the Bar. Of course, hand inhand with this concern, is the implicit accusation thatnew attorneys have caused this “decline.” In response,new attorneys suggest that it is the experiencedpractitioners who are to blame. Associates point toexamples of senior Partners who, either outright or in theguise of an innocuous sounding “assignment,” ask themto engage in unprofessional tactics without encouragingthem to discuss or consider the ethical ramifications oftheir actions.

Melissa H. Weresh, a professor at DrakeUniversity, presented a paper entitled “I’ll Start WalkingYour Way, You Start Walking Mine: SociologicalPerspectives on Professional Identify Development andthe Influence of Generational Differences.” In her paper,Professor Weresh pointed out the need to understandgenerational characteristics. She stated that young

lawyers come primarily from the Millennial Generation,while experienced lawyers are typically members of theSilent Generation, the Baby Boomer Generation,Generation X and the Millennial Generation. Thesegenerations have increasingly different expectationsabout professional life and the working environment. Insome instances, these differing expectations can result ina disconnect with regard to professionalism. In ProfessorWeresh’s paper, she made these observations: “One clearsource of conflict between generations and how theyapproach the practice of law is the expectation differentgroups bring to the practice environment regardingwork/life balance. Baby Boomers are accustomed toworking hard and paying their dues. They do not expectimmediate gratification or reward. In contrast,Millennials expect their work to be consistentlymeaningful and rewarding as well as financiallylucrative. The divide between expectation and reality isparticularly wide for young lawyers.”

Weresh further points out there is a divide overthe amount of time associates should devote to practiceis complicated by their expectations about salary. Shenotes that new lawyers’ salaries are increasingly high andthat is decreasing the value of ultimate partnership.

Weresh notes that both the Millennial and the XGeneration have been characterized as having a lack ofregard for authority, and with an unrealistic sense ofentitlement. The manner in which they communicate hasbeen largely electronic and some of the MillennialGeneration has been criticized for lack of face to facesocial skills. They want to be challenged and stimulatedat work, to be reasonably compensated for the work theydo, and have the time to be participatory parents andhave a personal life. They want mentoring and feedbackon the work they do. They want to feel valued.

This brings us back again to the mentoringprocess. Mentoring initiatives are particularly valuablebecause they bring together the novice and practicingattorney, and provide the novice an opportunity toexplore issues of professionalism informally. They alsoprovide a real life dimension to professionalism. Regularcontact with attorney mentors serves to initiate novicesinto the culture and language of the profession and thevalues and benefits of practitioners.


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The Young Lawyers’ Divisions of local BarAssociations have also made great strides inprofessionalism instruction across the generations. TheYoung Lawyers’ Division of the American BarAssociation has introduced a website resources toadvance mentoring in the legal profession (American BarAssociation, Young Lawyers’ Division, MentoringProject - http://www.abanet.org/mentoring/).

V. CONCLUSION

The Utah Bar Journal, Volume 15, No. 3, April2002, had an article entitled “Aspirational Morality: TheIdeals of Professionalism.” The article finished with thisquote: “Fully engaged member of the bench or bar,occupied with practical affairs, may be inclined todismiss professionalism as a reflective and theoreticalendeavor for academics and law reviews. To be sure, itis unlikely that any of the incremental efforts towardimproved professionalism will have an immediate orreadily discernable on the ordinary practice of law.However, the collective effect of such efforts shouldlikely have a long run positive effect even if indirect, onlawyer civility, competence and integrity. After all, asthe philosopher Simon Blackburn observed: “‘For humanbeings, there is no living without standards of living.’By extension, for lawyers and judges, there can be nofulfillment in the practice or administration of lawwithout standards for such fulfillment. The profession,as a movement, seeks to solidify such standards.”

The essence of the claim to professional statusand professional privilege is that members of theprofession hold themselves to higher standards thanother people. A businessman, after all, may properlymake his prime goal the search for profits. Indeed hisobligation to his stockholders is arguably that he doeswhatever the law permits and they will be in theirpecuniary interest. A lawyer must pass a separate test.He is supposed to be ethical, even when he could makemore money by being unethical. “What makes thelawyer professional is his insistence that in the legalrealm he sets the parameters of what he will do and whathe will not do, and he tells his clients what he believes isin the client’s best interest.” (Sol M. Linowitz, ThePortrayed Profession: Lawyering at the End of the 20th

Century, Charles Scribner & Sons, 1994, p. 229)

We must remember that ours is a publicprofession, that we serve our society in practically everyaspect of life, and that we are the profession’s guardiansfor the present and the future generations.


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