Balancing Wellbeing, Professionalism, and Civility

Episode Notes

Transcript

Molly Ranns:

Hello and welcome to another edition of the State Bar of Michigan’s On Balance Podcast on Legal Talk Network. I’m Molly Ranns.

JoAnn Hathaway:

And I’m JoAnn Hathaway. We are very pleased to have Joan Vestrand and Tim Lessing. Joining us today is our podcast guest. Joan is Dean of Students and professor of Law at Thomas M. Cooley Law School teaching legal ethics and professionalism. Tim is the principal member of Lessing Legal PLLC and a seasoned trial attorney with a litigation career spanning nearly 25 years. Both are members of the State Bar of Michigan Special Committee on Professionalism and civility, and Joan and Tim. With that, would you each share some more information about yourselves with our listeners? And Joan, why don’t we start with you?

Joan Vestrand:

Thank you, JoAnn. It’s a delight to be here today, especially given our topic and professionalism in the practice of law. It’s near and dear to my heart and something I’m familiar with on all sides, having spent many years investigating and prosecuting lawyers and judges as staff counsel with the Judicial Tenure Commission and the Attorney Grievance Commission and then engaging in ethics related defense practice for several years before joining Cooley Law School faculty. As you indicated, I’m also a member of the State Bar Michigan Professionalism Committee. I’ve always been involved with committees that address ethics and professionalism for the practicing bar and judiciary. I serve as a hearing panel member for the Michigan Attorney Discipline Board and I speak nationally on this field, so it’s a delight to be here. Thank you.

Tim Lessing:

Thank you both Molly and JoAnn. I appreciate the opportunity to be here as well. It’s always exciting to get out and talk about some of these things that are very important to us. My career has been fairly diverse. I started, geez, nearly 30 years ago, clerking for a circuit judge here in Michigan. From there, I transitioned into doing primarily litigation and specializing in trial work, doing commercial and insurance defense litigation. And then after about 10 years of that, I switched over and became the managing partner and ran a firm of plaintiff’s lawyers handling the whole gamut of things, a general practice plaintiff’s firm will do, did that for about 10 years, tried a bunch more cases, and I’ve switched in 2017 to sort of a semi-retired. I like to joke practice where I’m doing facilitations and arbitrations and I serve as a special discovery master from time to time with the courts as necessary.

As Joan said, I’m very active in the community dealing with these issues of professionalism and civility. I absolutely adore the practice of law. I’ve always been enamored with it and it makes me a little sad that we have sort of the reputation and where the butt of all the jokes. So it was always interesting to me to pick up on this area and really try and push forward with it. I serve as the law school liaison for the American Board of Trial Advocates, which is sometimes known as a oda. And so I do speeches on civility and professionalism to all of the Michigan law schools frequently. And I also frequently speak at other events, as Joan mentioned through the special standing committee on professionalism and civility. I’m the sub chair of the speakers group, so I’m the one that would either come out and speak when we have an event or would find other people to come speak with me. I’m excited to be here today and talk about professionalism and being a little more civiliz as lawyers.

Molly Ranns:

Well, thank you both so much for being here. This is near and dear to my heart as well. We know between 40 and 70% of all malpractice claims and disciplinary proceedings are directly related to an untreated mental health or substance use issue. And so I’m really looking forward to talking about professionalism and civility, how that intersects with wellbeing. And so Joan, beginning with you, can you help our listeners understand what professionalism is as it relates to the legal profession?

Joan Vestrand:

Thank you, Molly. It isn’t surprising that the very word profession implies professionalism and its importance to our system of justice. And in keeping with this, the concept is a fundamental aspect of the lawyer’s oath as well as our codes of conduct. But when you ask what exactly is it, certainly civility, courtesy and respect are fundamental aspects of professionalism. However, in its full sense, it’s actually so much more than this and there’s no better guidance for its scope than Michigan Supreme Court Administrative Order 2020 dash 23 enacted in December, 2020. The order sets forth the fundamental principles of conduct that together constitute professionalism principles that are vital to our ability for fostering and preserving, as well as advancing our legal system in the system of justice. And as legal professionals, certainly we each matter in this, each of us a link in the chain necessary for effective rule of law and the ability not just for fair and just results, but the very appearance of fairness and justice in reminding us of this.

The court goes on in its order to set forth 12 principles of professionalism along with examples for both lawyers and judges to guide our conduct accordingly. And as the principles themselves demonstrate professionalism encompasses multiple concepts. So yes, it’s certainly civility, courtesy and respect, but it’s also patience, cooperation, diligence, competence, honesty, integrity, fair play, good faith, dignity, and a justice oriented mindset. So in a nutshell, professionalism encompasses ethical responsibility and upholding our responsibilities to the justice system. With a license to practice. Law obviously comes great power, influence, and responsibility, hence the importance of professionalism and professional conduct in all aspects of the term.

JoAnn Hathaway:

Joan, you mentioned wellness as an aspect of lawyer, professionalism when you were just speaking. Can you expound on this and how does wellness play into civility and professionalism?

Joan Vestrand:

Oh yeah. JoAnn Wellness has everything to do with it. It’s necessary to our vari ability for professionalism and to conduct ourselves in a professional manner. In this reality, lack of civility and other unprofessional conduct is easily rooted in lack of wellness. Its sign and symptom of an unwell professional. A lawyer or a judge suffering from a mental health or a substance abuse problem is likely unable to conduct themselves at their best. The ability for professionalism, all aspects of it are going to be impaired. Conversely, personal wellness serves to foster and promote professionalism, and this too is no surprise inherent within wellness is that we feel good about ourselves. We have the self-respect so necessary to our ability to give respect and all aspects of professionalism. From civility and courtesy through integrity, competency, and preparation. They’re all forms of respect. An impaired lawyer or judge puts parties and the entire legal and judicial system at risk for compromised representation and where it’s a judge skewed judicial reasoning and decision-making. And of course, not to mention the personal toil from the lack of wellness, the direct impact on the affected lawyer. Judge,

Molly Ranns:

Thank you so much for sharing that Joan, so many states around the country are shifting to amend their model rules to include wellbeing, emotional wellbeing as a piece of competence, and so I’m really looking forward to see how that transpires throughout the country. Tim, as we shift gears over to you, the possible problem of compromised representation and decision making has been mentioned, and this to me sounds like a really significant issue. Can you elaborate on that?

Tim Lessing:

Sure. I think that that is at some levels the core of where we end up, where we are right now, and that is by its very nature, being a lawyer, we always talk about things like the adversarial system and zealous advocacy for our clients. And the system by its very nature, sets up a us against them sort of mentality. It’s how it’s always been and frankly probably how it will always be the goal or the key here is to make sure that we leave the representation of our clients at the door. And we remember that we are all part of a very noble profession and that we work together towards outcomes and resolutions. I think all too often, the pressures of billing and timing and getting that case settled and getting the income in the door and dealing with judges and motion practice, we get a little lost in the sea of the adversarial process, whereas sometimes, not always, but sometimes if you take a deep breath and take a step back, there’s actually a much faster and more efficient approach for the two parties to both equally represent their clients, but also to do it in a civil and professional manner that gets things done all too often.

I think as we go through our day, the day just mounts up on us. You get a call first thing in the morning from opposing counsel and that doesn’t go well, and then you have a hearing with the judge or a pretrial, and that doesn’t go well. And suddenly we find ourselves and what I loosely refer to as combat mode and everything that we do and how we interact, and that’s a cycle that we have to be first able to recognize in ourselves when it’s happening, and two, recognize in general when it’s happening so that we can just take a pause, think about what’s happening and what we’re doing and how we want to really accomplish this in a way that forwards professionalism and civility in our profession and act appropriately versus the knee jerky type of reactions that we typical get. And that again is in large part just the way the system is set up.

We have goals and obligations and responsibilities to our clients and we try very hard to do them, but I can tell you after practicing for a long time, and I’m sure there’s a few out there that maybe think that I got a little zealous or excited now and again, but it makes for a more rewarding practice of law. It makes for a more rewarding career. And frankly, I believe to the very bottom of my heart, it makes for a more financially rewarding career when you work well with your colleagues, with your peers in this community, and you have a strong reputation for doing so. It’s just a better way of living and practicing law. And again, back to balance, balancing your life with a job that is very important. I think that there’s a lot that goes into that, and we can certainly pick some of those apart if we have the time here. But overall, I think it’s treating others the way you would hope to be treated, having empathy, understanding that if someone’s sort of blowing up your email or phone on a given day, it may be your case, it may be you, but it might be something else going on in their lives. And we really have a responsible lookout for each other in addition to all the other things that we have responsibilities for when it relates to our clients in this practice.

Molly Ranns:

Thanks so much, Tim. That certainly makes sense to me. We are going to take a short break from our conversation with Joan Vestrand and Tim Lessing to thank our sponsors.

JoAnn Hathaway:

Welcome back. We are thrilled to be here today with Joan Vestrand and Tim Lessing discussing civility and professionalism in the legal profession and their impact on wellbeing. Hearing from both of you on this, it’s clear that issues affecting professionalism can be the result of various factors. What are some of the other underlying reasons for lack of professionalism? And Tim, why don’t we start with you?

Tim Lessing:

Well, I think that, again, wellness plays a part in just about everything that we do and day. So we start with ourselves, if I wake up on the wrong side of the bed and I’m cranky or things aren’t going well at home or I just didn’t sleep well, that’s going to permeate through everything that I do. And then with our jobs and what we do, it gets compounded quite quickly. We have competition, other lawyers that are competing for the same clients that we have. If we’re doing insurance defense or corporate work, there may be other firms that also handle their business. And so the pressure by our supervisors and bosses and even ourselves if we’re managing partners or shareholders to make money to keep the business running, to keep things going, that can be very difficult and those who take it seriously, that creates a great deal of stress on them.

Then you have the competition factor of just prosecuting or defending a case that you’re involved in. And I think that one of the great laments for me in the practice of law that I’ve seen over the years that I’ve been doing it is in my humble opinion, we’ve become a very gotcha type legal society or legal area in that we tend to focus a lot more on form than substance. And so daily, when I watch motion calls or listened to judges do things on the record and hearings, it tends to be about someone missed to this scheduling order date or didn’t provide that witness list or didn’t answer these interrogatories or whatever the case may be. And again, it’s all feeding into this bucket of us against them and this kind of gotcha society, whereas it doesn’t take a whole lot to just step back and when somebody’s maybe a little late on an answer to interrogatory or something else, reach out, call ’em what’s going on?

Do you need some more time? What can I do for you freely allowing for things like adjournments. I don’t think any lawyer without knowing their opposing counsel just in the blind would say that I wake up today and I hope to find a way to force my other counsel or my opposing counsel to commit malpractice or to stress out their day. That’s not how anybody I know practices law. And so I think we should carry that through with what we do and when something happens that’s difficult or that requires everybody to just take a breath, I don’t think the knee jerk should be to just strap on your combat gear and you’re ready to go. I think it should be what’s happening, why is it happening and how do we deescalate it? Again, that’s the adversarial system. We have a V us versus them right in the caption. So understanding that you can be a fantastic lawyer and do your job and do it well while still not alienating your opposing counsel, the opposing side, the judge, even the people on your own staff, I think is really the first step to making sure that we are functioning in a way that brings honor to this profession because that is something that I think is lacking and I would love to see back in my lifetime.

Joan Vestrand:

I agree with Tim, everything that he has said here, and I think just because of the stress inherent in what we do, especially for the litigator, first and foremost, we need a conscious commitment. Look at the and consciously commit to them. Sometimes it’s just a matter of needing to make that conscious commitment to these principles and keeping them front of mind. And we’re always going to be faced with those who may on occasion act unprofessionally, and it’s a matter of resisting the temptation to respond in kind to get down in the mud. And as Tim suggested, that could be as simple as taking that breath thinking before we act and hearkening back to the principles and using them to guide our conduct because the examples that the court provides for our behavior in difficult situations is excellent. It’s an excellent roadmap for practice success and serves to foster and strengthen our system when we act accordingly.

So I think we want to know these principles. We want to take the time to study them, to make that commitment and to keep them close and to use these principles to train our subordinates, both the lawyers that work with us and our staff who are expected to conform their conduct to our own ethical requirements and for all of us to model ourselves accordingly. And judges have a great opportunity here. Judges can incorporate these principles into the proceedings. It could start with posting them in the Courtroom itself. It might be the attachment of the principles to every scheduling order as an expectation for the conduct of all lawyers and litigants in the proceedings. Courts could announce at the beginning of every motion call or proceeding that they are to be conducted in accordance with the Supreme Court’s professionalism principles for the state of Michigan, and they could be used to guide what can be a very contentious time in litigation, and that’s the discovery process. If judges might even attach to a discovery order and obtain counsel agreement to conduct themselves in accordance with the principles, maybe having to even set that forth on the record at the commencement of a deposition, it could make a big difference because again, it helps to keep these principles front of mind, and that’s what we need to do.

Molly Ranns:

As we’re finishing up today, there is something I would like to touch on, and this question is for either or both of you. What if any strategies can a lawyer use when dealing with another legal professional’s, lack of professionalism, and really how can an affected lawyer work to perhaps deescalate or even successfully manage a situation and not become part of the problem themselves? Tim, why don’t we start with you

Tim Lessing:

On that? Well, that’s the million dollar question, isn’t it? Right. How do we turn this around? And I think it’s going to be a long process. Some examples I think I would say is one, recognizing that it’s a problem, which is the first step in nearly rectifying anything, and then two, just being the change yourself get involved. I mean, you can go to the State Bar of Michigan website. I think it’s somewhere near the top. You can check committees. One of the dropdowns has professionalism and civility right there. You can request that a speaker come out. If you’re a principal of a law firm, we’re happy to come out and sort of help out and give a little presentation and some of these tips and tricks, bar associations, law schools, all of that. We’re happy to do it. You can find copies of the order.

One thing we’re going to be working on, I think as time goes on here, is answering exactly what you’ve asked, and that is, okay, professionalism is a great idea and we should all model it, but how do we really do that in practical application? And the answer’s a little trickier than I would like, but at some levels it’s not so tricky. The first, as we’ve talked about several times, when you’re engaged in some sort of a situation that is difficult, take a breath, think about what’s happening and what you’re doing. I think more often than not, especially in the context of perhaps a live deposition or something that’s happening right now, right this moment, I think the instinct to engage and to counter what’s just been said to you and things like that is it’s very overpowering. And I have found over the years that simply not engaging in unprofessional activity by responding to it can sometimes be the answer.

If you’ve got an email from someone that is a little hyperbolic or perhaps is lighting up your email with all of these things that were said and done, I’ve adopted some strategies. One is I don’t respond. I don’t engage. I simply respond by saying, I disagree with the premise or the substance of your email. We can take it up with the court if you would like, but I’m not going to comment or respond because I don’t think it’s productive. That usually ends things. Little things like putting an email delay, all of my emails on my system have a five minute delay when I hit send, the number of times I go back in and think, eh, I want to tweak that wording just a little to calm it down some. I think that’s a great way of doing it. If you’re at a deposition and you’ve got one plaintiff counsel and a couple of defense counsels, and one of them is getting a little testy, self-police a little quietly, professionally, compassionately, but step in when things are happening that they shouldn’t be, take a break, bring your co-counsel out to the hall and have a conversation about just ratcheting down and getting to the facts of the case where necessary.

Stop the deposition. All of these things are available to us, and they are most available to us. When we stop, take a breath and think about the fact that things have gone off the rails and we need to find a way to professionally bring them back. If your opposing counsel isn’t doing it, then you need to be the one that’s responsible for it. It doesn’t always mean running to the court and tattling. It does mean, however, trying to keep the level of discourse in our professional community as high as humanly possible. If you’re an employer and you have young associates, it’s your responsibility to police them. They look up to you, they model you. If you’ve earned your stripes as a very aggressive litigator, that’s fine, and many in the legal community probably respect you for that because you’ve again earned your stripes. But the younger associates don’t know what to do, and they tend to just model behavior without understanding the substance behind it.

We have an obligation when we’re senior partners, we’re managing attorneys, supervising attorneys to make sure that the new crop of lawyers that are coming up understand the importance of professionalism, disability, and that they practice it day in and day out, and that we talk with them about it and how best to manage problems like civility or lack thereof as it comes up. So there’s lots of things. We get lots and lots of questions. They’re all unique, they’re all different, but you can see that they all kind of keep boiling down to the same rule. Treat this profession with respect. Treat each other’s with respect. Act as you would have act upon you, and you’re probably going to be okay in most instances.

Joan Vestrand:

And I think too, it could be as easy as getting to know one another. Today with so many lawyers and especially in larger communities, you might find yourself facing off against a lawyer that you have no experience with, and perhaps a good way to start the representation of your client would be to reach out to opposing counsel just for a bunch to get to know one another, and that might make all the difference in how the proceedings go from there. I heard a lawyer once give some great advice to some law students who asked the same question that’s been posed here, and he said, you know what? He has found as a very successful strategy when he finds himself across the aisle from a lawyer who’s struggling with professionalism, he’ll take the onus, give that lawyer a call, apologize for getting off apparently on the wrong foot and inviting that lawyer to lunch, and he said, nine times out of 10, it will resolve the situation and bring down the temperature for the remainder of the case. That’s a good thing because professionalism is simply better for clients. We know that we’ll go farther with our client’s cases with honey than we will vinegar. Professionalism simply assures better outcomes, and at the end of the day, that’s what this is all about.

JoAnn Hathaway:

Well, this has been wonderful and extremely important information, although it does look like we’ve now come to the end of our show. We’d like to thank our guest today, Joan Tand and Tim Lessing for a wonderful program.

Tim Lessing:

Well, thank you so much for having us, JoAnn and Molly, and it’s a great service you’re offering here, and we’re just delighted to be able to contribute to it in some small way.

Joan Vestrand:

Yes, thank you very much.

Molly Ranns:

We are so grateful and maybe that our listeners want to reach out to both of you, and so starting with you, Joan, and then following with you, Tim, if our guests would like to follow up with you, what is the best way to do that

Joan Vestrand:

For me? Probably my email address at the law school, which is my last name, absent the D, so it’s V as in Victor, E-S-T-R-A, NJ at Cooley, C-O-O-L-E y.edu.

Tim Lessing:

If you’d like to reach out to me, which I encourage, I’m always happy to help and talk problems through with people, even if I don’t don you, you can just reach me at Tim, just T-L-E-S-S-I-N [email protected]. Alternatively, as I mentioned, we do have a dedicated site because we are not a section, we’re a special standing permanent committee of the state bar. You can go to mish bar.org and right across the top where it says for members, there’s a dropdown, and you’ll see professionalism and civility right there on the dropdown, and you’ll have access to the information we’ve compiled so far and more resources and things like that. We hope to keep building that out for everyone, but please don’t hesitate to reach out and get involved. It’s what we really need from everyone.

Molly Ranns:

Thank you both again for being here with us today.

Tim Lessing:

Thank you so much.

Joan Vestrand:

Thank you.

Molly Ranns:

This has been another edition of the State Bar of Michigan’s On Balance Podcast.

JoAnn Hathaway:

I’m JoAnn Hathaway.

Molly Ranns:

And I’m Molly Rands. Until next time, thank you for listening.

Announcer:

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