Legal professionalism in 2026: Professionalism is not a spectator sport¹

Legal professionalism is not new. Supreme Court justices and bar leaders have written and spoken about it for years. When I speak and write about legal professionalism, I describe the role of lawyers in our justice system and how lawyers should, at their best, behave.

Many use the terms professionalism and civility interchangeably. However, civility is a subset of legal professionalism. It is true that uncivil behavior garners the most attention for reasons I think are obvious. And it’s an important part of legal professionalism. But it is not the equivalent of legal professionalism. Legal professionalism includes the competence of our work product, how we present ourselves to the legal system, wellness, respect for those involved in the justice system, and respect for integrity.

At this time in my legal career, I have had the luxury of thinking and writing about legal professionalism. Also, I’ve had the luxury of looking back and thinking about the lawyers whom I have had the good fortune to have worked with and observed. If you have done that, I think you will agree that the lawyers whom you can recall as “professional” were something more than civil. Yes, they treated others well, but there was something else. They cared. They understood their place in the justice system. Their preparation and work product were top notch. They were involved in local, state, and maybe national bar associations.

Let’s not kid ourselves. We live in difficult times. Instilling confidence in our justice system is critical. We can do that by refocusing on our role as lawyers in our system of justice, how we should behave, and what we can do to improve professionalism. I focus on lawyers here, acknowledging that judges are partners in professionalism, as I discuss later.

THE PROFESSIONALISM PRINCIPLES FOR LAWYERS AND JUDGES

The Michigan Supreme Court enacted the Professionalism Principles for Lawyers and Judges by Administrative Order 2020-23² (“the Principles”). The Principles are the result of a work group formed by former State Bar President Jennifer Grieco. The workgroup, under the leadership of Ed Pappas, also a former state bar president, drafted the Principles. Ed Pappas then presented them to the State Bar Representative Assembly in 2019. After approval, the Principles were presented to the Michigan Supreme Court and adopted in December 2020.

To continue the promotion of the Principles, the State Bar created the Special Committee on Professionalism and Civility. Members of the Committee are fulfilling the Committee’s mission by actively speaking about professionalism to lawyers and judges.

THE ROLE OF LAWYERS IN OUR JUSTICE SYSTEM

We are not potted plants in a functioning democracy. The Principles remind us of the following:

In fulfilling our professional responsibilities, we as attorneys, officers of the court, and custodians of our legal system, must remain ever-mindful of our obligations of civility in pursuit of justice, the rule of law, and the fair and peaceable resolution of disputes and controversies. (Emphasis added)³

Given that we are the “custodians of our legal system,” the heightened responsibility we hold is evident. The critical nature of our responsibility is made more obvious by those who attack us. Perkins Coie LLP v Department of Justice well describes our importance in the justice system: “The importance of lawyers to ensuring the American judicial system’s fair and impartial administration of justice has been recognized in this country since its founding era,” and “[e]liminating lawyers as the guardians of the rule of law removes a major impediment to the path to more power.”⁴

We are both custodians and guardians of the rule of law — we guard and protect the rule of law. And we are entrusted with that duty. As part of that responsibility, we agreed to support the Constitution of the United States and the Constitution of the State of Michigan.⁵

We are not merely bystanders in our democracy. Professionalism requires an active role in our justice system.

THE CHALLENGES OF PROFESSIONALISM IN TODAY’S REMOTE ENVIRONMENTS

When the COVID pandemic caused our profession to move to remote proceedings, we did so willingly. We had little choice if we were going to have an active, functioning legal system. Zoom and other remote platforms saved us. We could conduct hearings and discovery by remote means. Because some were so excited and enthusiastic, the Michigan Court Rules were amended effective September 9, 2022, to provide a presumption that video conferencing of most court proceedings in the circuit courts is presumed, subject to the court’s determination that such remote means are inappropriate for a particular case.6 It is well worth pointing out that the Administrative Order requiring the presumption was met with a vigorous dissent. Chief Justice McCormack observed in her concurrence to the Administrative Order that remote proceedings “vastly improved access to the courts, and thus access to justice”⁷ and, later in her opinion, stated, “Equal access to justice is the most critical problem for the fair administration of our courts.”⁸

There is little disagreement that access to justice and equal justice are significant issues. Yet, they are not the only issues when considering a default provision that makes remote proceedings the preference.

Justices Zahra and Viviano opposed the amended court rule. Justice Viviano said the following:

Today’s order will ensure that the participants in court hearings are less engaged and the hearings less meaningful… As a former trial judge who values human interaction and knows the court system cannot function without it, I am greatly saddened by the majority’s profound error in judgment and what it portends for the future of our courts.⁹

For the purposes of this article, it is important to note the discussion of lack of decorum that remote proceedings have engendered and the inability of judges to control proceedings. And the disadvantages of remote work have become a much-discussed topic among professional law firms and accounting firms. It takes little imagination to understand the difficulty of collaboration in a professional firm when the staff is working remotely. I agree it is not impossible, but it cannot be challenged that there is little opportunity for “water cooler” discussions or walking down the hall to knock on a colleague’s door to discuss a legal or ethical issue or even find out what happened over the weekend.

Footnote 10 in the Administrative Order 2020-08 describes empirical evidence that firm-wide remote work “caused the collaboration of workers to become more static and siloed…making it harder for employees to acquire and share new information across the network”¹⁰

Former State Bar President Daniel Quick discussed the impact of the “Zoom court” on civility, noting that this practice has resulted in sharper practices amongst counsel because they know they can get away with more.¹¹

And,

Notably, the Principles of Professionalism recognize the need for judges to set norms: judges do not condone incivility by one lawyer to another or to another’s clients and we call such conduct to the attention of the offending lawyer on our own initiative and in appropriate ways. Former State Bar of Michigan President Edward Pappas said it best during a 2020 public hearing on the principles: Civility starts at the top and at the top of our profession are the judges. Judges set the tone for civility[.] (quotation marks and citation omitted).¹²

There is a wonderful example of a deft handling of a refusal to stipulate to an extension of time to respond to a complaint filed just before Thanksgiving. In McCullers v Koch Foods of Alabama, Chief Judge R. David Proctor, Chief U.S. District Judge, addressed the dispute.¹³ Plaintiff conditioned her consent on an agreement not to file a motion to dismiss.

The Order states,

There is generally no good reason that an extension such as this should be opposed, let alone denied. The Golden Rule — do unto others as you would have them do unto you — is not just a good rule of thumb for everyday life. It is a critical component of legal professionalism. Sadly, in recent years compliance with the rule is becoming rarer and rarer in the litigation arena. It is time to reverse that trend, even if it is only in this case.¹⁴

The Order goes on to note the looming Thanksgiving holiday, describing the lawyer’s conduct as withholding consent or conditioning it as “nonsense” and as “fiddle faddle.”

The court then grants the motion for extension and then further requires the lawyers to meet in person

Further, the court ORDERS that, on or before December 31, 2024, counsel for both Plaintiff and Defendant are to go to lunch together. Plaintiff’s counsel will pay the bill: Defendant’s counsel will leave the tip. The parties will discuss how they can act professionally throughout the rest of this case. Within ten (10) days of the lunch, the parties SHALL file a joint report describing the conversation that occurred at lunch and the amount of the tip.”¹⁵

Hence, the in-person meeting was the solution to uncivil conduct.

We should note that there are a significant number of new lawyers who began their practice after March 2020, when the COVID pandemic led to remote court matters and civil discovery. They don’t know what they are missing.

Those who have practiced for a significant period of time can usually point to the relationships they developed as a result of litigating cases together. For each case, there are usually numerous opportunities for seeing each other in court, whether at a status conference, settlement conference, scheduling conference, motion hearing, or trial. The litigants often became professional friends. And they developed three-dimensional relationships — not the two-dimensional relationships that form through a computer screen. They could talk in the hall before or after a hearing of court conference; they could catch up on each other’s lives.

I can say without a doubt that the most enjoyable moments and memories of my practice result from developing the relationships that can come almost only from in-person encounters. It is so much easier to communicate with someone when you have met them in person. That can only benefit the client and the court system.

And, it is much harder to be a jerk to someone whom one has met in person and with whom they have developed a personal relationship. Hence, the Golden Rule just makes sense in that context.

What about the less experienced lawyers among us? I treasured the opportunity to be in court and observe good lawyers. I would check court dockets and find out when certain lawyers were scheduled to present arguments. And sometimes, I would simply show up at the court and watch all the lawyers arguing. It wasn’t difficult to determine who were the better lawyers and the more respected lawyers — who were the professionals. At a motion hearing, we could observe the judge’s demeanor.

We often learn by example, and there is only so much that law school can prepare us for. Lawyers need to be in the courtroom experiencing the power of the court, what it feels like to stand up in front of legal peers and make good arguments, and what it looks and feels like when a lawyer makes bad arguments or misbehaves.

SPEAKING UP AND OUT

1. What can we do to promote professionalism?
2. Read the Professionalism Principles and talk about them in your firm and bar association meetings.
3. Be the professional — improve your work product, make sure you dress as a professional, practice wellbeing, and practice the Golden Rule.
4. Participate in civic activities that address the rule of law and civil discourse — there are many that are offered to schools and other organizations.
5. Join the Speakers Bureau of the State Bar of Michigan Special Committee on Professionalism and Civility — you will be trained on professionalism and prepared to speak to others.
6. Speak up and out when you see organizations that are acting to weaken the rule of law and the justice system — write a letter to the editor.
7. Reread the Lawyer’s Oath we took when we were admitted to the State Bar. It is still relevant.
8. Reread MRPC 1.0 and the Comments.
9. Reread MRPC 1.1, Competence, and the Comments, particularly “Thoroughness and Preparation”; 3.1, Meritorious Claims and Contentions, and the Comments, 3.3, Candor Toward the Tribunal, and the Comments; 3.4, Fairness to Opposing Party and Counsel, and related Comments; and 3.5, Impartiality and Decorum of the Tribunal.
10. Reread MRPC 6.5, Respect for those involved in the legal system.
11. Reread MCR 1.105 (rules to be construed to “secure just, speedy, and economical determination of every action…”).
12. Do not accept unprofessional behavior from colleagues, and understand that being unprofessional may also be unethical.
13. Look for opportunities to meet, personally, your adversary.

CONCLUSION

We do not have the luxury of being silent in the face of attacks on the rule of law and our legal profession. Be the professional and speak up and out.