Professional Responsibility Education Guidelines

The Commission provides CLE providers the following guidance concerning the Court's expectations regarding professional responsibility education. In adopting these guidelines, the Commission intends that CLE providers, educators and facilitators be clear as to the goals of the Illinois professional responsibility CLE requirement and the desired results from professional responsibility educational experiences.

Desired Results

Rather than merely conveying static information, CLE in the area of professional responsibility seeks to turn professionalism into a constant awareness for every Illinois lawyer. Successful professional responsibility education will acquaint lawyers with the realities of applying the core values and ethical responsibilities of our profession in increasingly dynamic and sophisticated settings. Successful professional responsibility CLE courses also will encourage lawyers to engage in dialogue, bringing the wisdom and experience of disparate individuals to bear on new situations and applications. They should expand the horizons of participants with respect to the richness and variety of the profession and the range of interests compatible with practice in the profession. Successful professional responsibility education will encourage the habit of reflection, thereby fostering more thoughtful responses to daily events. Such courses will also sharpen awareness of nuanced professional situations and can provide a sense of personal control in the context of individual professional careers. Finally, quality learning experiences can stimulate the imagination about the potential ramifications of leading a professional life.

Scope of Professional Responsibility CLE
 Rule 795 (a) requires that the professional responsibility course or activity have significant intellectual, educational, or practical content with a primary objective to increase each participant’s competence as an attorney and requires that the course or activity relate primarily to the practice of law. The scope of what may be considered professional responsibility CLE is broad, defined by Supreme Court Rule 794 (d) as the areas of "professionalism, diversity issues, mental illness and addiction issues, civility, or legal ethics." We recognize that there may be significant overlap between these substantive areas and that a successful professional responsibility CLE course will entail more than one area. Nonetheless, we discuss each of these areas separately below.

Professionalism
The word profession comes from the Latin professus meaning "'to have affirmed publicly." As one legal scholar has explained,

"The term evolved to describe occupations that required new entrants to take an oath professing their dedication to the ideals and practices associated with a learned calling." [1]


Many attempts have been made to define a profession in general and lawyer professionalism in particular. The most commonly cited is the definition developed by the late Dean Roscoe Pound of Harvard Law School:

"The term refers to a group ... pursuing a learned art as a common calling in the spirit of public service - no less a public service because it may incidentally be a means of livelihood. Pursuit of the learned art in the spirit of a public service is the primary purpose." [2]


Retired Justice Sandra Day O'Connor of the United States Supreme Court provides this definition:

Professionalism requires adherence to the highest ethical standards of conduct and willingness to subordinate narrow self-interest in pursuit of the more fundamental goal of public service. Because of the tremendous power they wield in our system, lawyers must never forget that their duty to serve their clients fairly and skillfully takes priority over the personal accumulation of wealth. At the same time, lawyers must temper bold advocacy for their clients with a sense of responsibility to the larger legal system which strives, however imperfectly, to provide justice for all . [4]

Defining professionalism in words is not as important as pursuing professionalism in our work. Thinking about professionalism and discussing the values it encompasses can provide guidance in the day-to-day practice of law. Professionalism calls us to be mindful of the lawyer's roles as officer of the court, advocate, counselor, negotiator, and problem solver. Professionalism asks us to commit to improvement of the law, the legal system, and access to that system. These are the values that make us a profession enlisted in service not only to the client, but to the administration of justice, and to the public good as well. While none of us achieves perfection in serving these values, it is the consistent aspiration toward them that defines a professional. The Commission encourages thought not only about the lawyer-client relationship central to the practice of law, but also about how the legal profession can shape us as a professional culture and a society.

Examples of the types of issues and topics that can be the subject of professionalism CLE include:

  • effective client communication and client relations
  • effective techniques to address the misuse and abuse of discovery and litigation
  • the lawyer's responsibility to perceive and protect the image of the profession
  • the responsibility of the lawyer to the public generally and to public service
  • the duty of the lawyer to be informed about all forms of dispute resolution (e.g., negotiation, settlement, mediation, arbitration, early neutral evaluation), to counsel clients accordingly, and to represent clients effectively in all forms of dispute resolution
  • effective persuasive advocacy techniques for trial, appellate, and other representation contexts
  • billable hours and responsible fee structures
  • managing client concerns and expectations
  • commercial pressures on the legal practice
  • mentoring
  • public interest
  • responsibility for performing community, public and pro bono service
  • restoring and sustaining public confidence in the legal system, including courts, lawyers, the systems of justice

Diversity
The lack of diversity in our profession and the impact it has on the efficacy of our legal system and the administration of justice is a source of concern for the Court and to the Commission. Through CLE, the Commission encourages our legal community to explore prejudices and biases, both personal and institutional, and to develop strategies for changing behavior. Many issues of professionalism may also be characterized as issues or topics of diversity. However, other examples of issues and topics that can be the subject of diversity CLE include:

  • ethnic, gender, racial, socioeconomic status
  • access to justice
  • institutional support for prejudice and bias in the education, employment and retention of lawyers and judges
  • responsibility for improving the administration of justice
  • responsibility to ensure access to the legal system
  • providing attorneys with opportunities to attempt to effectively address issues of diversity in their daily practice

Mental Illness and Addiction
 Lawyers and judges suffer from mental illness and addiction at a significantly higher rate than does the general population. The Court and Commission are concerned about this reality and encourage through CLE an exploration of ways to increase the health and wellbeing of our professionals. Many of the topics and issues discussed under the category of professionalism could also bear on the mental and emotional health of our legal professionals. In addition, examples of topics and issues that may be the subject of this category of CLE include:

  • balancing personal and professional priorities
  • transitions into a legal career and into different practice settings
  • maintaining emotional and mental health
  • stress management
  • alcohol and other substance abuse
  • addictive behaviors
  • recognizing signs and symptoms of mental illness or substance abuse
  • strategies for dealing with mental illness or substance abuse

Civility
 The overly aggressive and uncivil nature of attorney interactions animated the Court's decision to establish a Committee on Civility, the Committee that preceded (and that eventually recommended the creation of) the Commission on Professionalism. The lack of civility that has crept into the profession is fueled by many professionalism issues, including the failure of the public, and even lawyers, to acknowledge that lawyers owe a duty beyond acting as the "hired gun" of a client. If a lawyer acts with a single-minded aggression to do a client's bidding, s/he often may fail to fulfill the simultaneous duties lawyers owe to the court, to the rule of law, to the administration of justice, and to the public good. Many of the topics and issues discussed above under the category of professionalism could also bear on the issue of civility. Other topics could include:

  • methods to recognize and avoid incivility
  • strategies to effectively manage/engage in difficult conversations
  • tactics for diffusing highly charged situations

Legal Ethics
Laws and the Rules of Professional Conduct establish minimal standards of consensus impropriety; they do not define the criteria for ethical behavior. In the traditional sense, persons are not "ethical" simply because they act lawfully or even within the bounds of an official code of ethics. People can be dishonest, unprincipled, untrustworthy, unfair, and uncaring without breaking the law or the code. In contrast, truly ethical people measure their conduct not by rules but by basic moral principles such as honesty, integrity and fairness.

The policies that underlie the various rules may, under certain circumstances, be in some tension with each other. Wherever feasible, the rules themselves seek to resolve such conflicts with clear statements of duty. To reach correct ethical decisions, lawyers must be sensitive to the duties imposed by these rules and, whenever practical, should discuss particularly difficult issues with their peers.

Some examples of the issues and topics that may be considered legal ethics CLE include:

  • the conflict between duty to client and duty to the system of justice or to the public good
  • the conflict in the duty to the client versus the duty to the opposing lawyer
  • the lawyer's responsibilities as an officer of the court
  • other duties and responsibilities articulated in the Rules of Professional Conduct
  • spotting and avoiding malpractice

Course Design

Unlike substantive CLE, which is devoted primarily to the transfer of information, or black letter law, professional responsibility CLE is focused on tapping into wisdom, judgment, creativity, and integrity to impact behavior reflecting the highest aspirations of our profession. The lecture format, appropriate where an expert conveys superior substantive knowledge, should be avoided or, at least limited, in favor of smaller, more intensive facilitated discussion groups. In short, professional responsibility CLE courses should be designed to encourage introspection and dialogue in order to equip lawyers to respond to new situations in a more professional manner.

The Commission strongly encourages the designers of professional responsibility sessions to explore more creative, introspective, interactive and simulation-based methods for presenting professionalism issues in the CLE course. Experiential learning should be emphasized. Lawyers tend to learn best by example, so models of behavior and professional values should be identified and discussed. Above all, courses should be structured to confront the question, "How will you handle this situation when it occurs in your practice?" and the more confrontational the better. Practicing lawyers invariably respond better to realism in teaching, and their learning will correspond to their level of engagement in the course activities.

Research has shown that the ideal professional responsibility learning experience includes at most one facilitator directing the interactions of up to 24 people. This ratio is a goal the Commission asks providers to contemplate in designing professional responsibility CLE for Illinois lawyers.

The Commission seeks feedback from providers and other interested individuals regarding the issues of course design and delivery methods. In furtherance of its mandate to substantively approve, and collaborate in the development of, quality CLE the Commission is considering proposals to establish criteria: limiting the number of course participants; limiting the availability of distance participation and DVD/CD replay; eliminating or limiting the delivery method of lecture.

What Professional Responsibility CLE Should Not Be
 The Commission intends professional responsibility CLE to be seen as encouragement, guidance and assistance to individual lawyers, law firms, and local and county bar associations. They are specifically not intended:

  • To supersede or amend the disciplinary rules established by the Supreme Court;
  • To establish a standard of conduct against which lawyer negligence might be judged or to become a basis for the imposition of civil liability of any kind;
  • To establish a new basis for any formal disciplinary proceedings or enforcement; or
  • To establish any bar association policy or set of principles, unless the bar association chooses to adopt a particular aspirational statement.


The Commission's hope is that members of this profession will recognize the special obligations that attach to their calling and will also recognize their responsibility to serve others and not be limited to the pursuit of self interest. While these values cannot be imposed by edict, a public statement of principles of ethical and professional responsibility may provide guidance for newcomers and a reminder for experienced members of the bar about the basic ethical and professional tenets of our profession.

A Note on Basic Skills for New Lawyers
 Those providers seeking accreditation for Basic Skills Courses should be aware that four (4) hours of the required 15 course hours must be dedicated to professional responsibility topics and issues. The lists above provide guidance on the type of subject matter that may be included in those hours of the course. Your CLE accreditation application should provide sufficient information for our reviewer to determine that this important criterion is satisfied in the plan for the Basic Skills Course.

Professional Responsibility CLE Approval
 All rules, accreditation standards, and regulations of MCLE Board shall be observed. The MCLE Board handles all aspects of CLE except the approval of the content of courses or activities in the area of professional responsibility. Once the MCLE Board has either accredited a provider or an individual course, any course or course segment offered to fulfill the professional responsibility requirement must receive substantive approval from the Professionalism Commission. Applications are available on this website. After review and approval of the content, the Commission will forward its determination to the provider and to the MCLE Board.

Closing Thoughts

Professional responsibility is about both principles and character. It is not, however, simply a matter of character and principle; it is a matter of choice and decision-making. Thus, the issue is not all or nothing. It is not a question of being or not being ethical. It usually is not a question of right or wrong. It is a question of selecting or not selecting the ethical or professional course of action. The ethical or professional response is not necessarily the easiest to define or implement in our increasingly high-pressured technological world. Professional responsibility CLE sessions should strive to cultivate reflective judgment about the practice of law and to assess how well current practices are serving the legal profession and the system of justice informed by the best traditions of our practice.

[1] Deborah L. Rhode, Professional Responsibility: Ethics By The Pervasive Method 39 (1994).
[2] Roscoe Pound, The Lawyer From Antiquity To Modern Times 5 (1953).
[3] American Bar Association, Section of Legal Education and Admissions to the Bar, Teaching and Learning Professionalism, Report of the Professionalism Committee (1996).
[4] Court of Appeals of Maryland Professionalism Course for New Admittees to the Maryland Bar, Professionalism Above and Beyond Ethics 15 (1992).