IS IT THE PACKAGING OR SOMETHING DEEPER?
By Michael R. Josephs, Esq.

I had the occasion to review the most recent Florida Bar survey and as with every poll or survey, there is good and bad news. One's particular perspective seems to be the determining analytical factor.

From my perspective, it is heartening that of those polled, the majority feel professionalism is an important issue. After all, professionalism goes to the very heart of what lawyers do -- it is the soul of our profession and without huge doses of it, we are diminished in our ability to achieve what is our charge. That the Bar constituency is mindful of this is not just good news; it is great news!

What I find troubling in the survey (the "bad news") is that a myth about our plight with public perception is still alive and kicking. Most lawyers, the survey says, believe that we suffer largely from a public relations breakdown. The survey reaffirms the persistence of a belief (I believe unique to ourselves) that we are a warm and fuzzy, caring group of people, doing the right thing, but just grossly misunderstood by the public.

Without question, there exist many examples of superb performance by our membership. Yet there is an ever present core of those who regularly subject all of us to ridicule. The "myth" for the most part, sells both the general public short and the legal profession "long," resulting in much misguided effort. To say that the public just doesn't get us lawyers is a bit of arrogance that few other segments of society indulge in and none would admit. It is a mind set with a thesis that the better part of 250,000,000 members of our society for years have been misinformed and ill-educated about, society's knights in armor. The reality is that the American public has seen, touched and felt the American lawyer for a long time and has done so in many different settings, i.e. real estate closings, trials, TV appearances, TV ads, in the government, etc., etc., and they just don't like what it is that we do and, perhaps more importantly, the way we do it. To say that they just need to be better informed seems more a wish than reality.

This concern about our direction was brought home to me a few years ago at a Florida Bar event in Miami, attended by some of our most dedicated and professional members. There, vignettes from several movies were played and the audience was asked to comment about the conduct of the attorneys in each of these situations. One, in particular was from a classic -- "Anatomy of A Murder," with Jimmy Stewart playing an attorney whose task it was to represent a military man played by Ben Gazzarra. In the movie, Gazzarra's wife had been raped by a bar owner. Gazzara tracked down the rapist at the bar he owned and killed him.

The audience was shown the first meeting between Stewart and Gazzara, where Stewart repeatedly and not so subtly corrected, lectured, prodded and pushed Gazzarra into "remembering" the state of mind he must have occupied and the facts that existed at the time of the event in order to avail himself of a "crime of passion" defense.

When the attendees were questioned about the conduct of Jimmy Stewart, without exception, they gushed about the resourcefulness of the "lawyer," the need to educate the client, the constant search for facts and other great sounding phrases that were nothing more than platitudes for justifying a not so scholarly subordination of perjury by Jimmy Stewart's character. I am embarrassed that I did not speak. I refrained because (or in spite of) at the time I was Chairman of the Standing Committee on Professionalism and the Bar was engaged in a massive campaign aimed at educating the public about the good done by attorneys. I assumed my comments might be a bit incendiary and disruptive. If we needed someone to speak up then, the need would seem to be even more compelling now, particularly since we are rated only above used car salesmen in trustworthiness.

The behavior of the attorney in this movie was but a small example of that despised by the public. This unseemly portrayal, of a lawyer (apparently only to my eye and a few others that I spoke to privately) cannot be cast off as a Hollywood contrivance because the lawyers at this meeting -- not Hollywood writers or producers -- praised the very conduct that causes the public at large to loathe us. A "perception problem" we say -- or are we out of synch with society and incapable of recognizing the chasm that has developed between what we as lawyers offer and what the public will no longer accept?

We have been unresponsive to the quaking and grumbling of the public for too long. I fear that our very training prevents us from being objective either about Jimmy Stewart's behavior or the public reaction to us as a profession. The same group that praised Jimmy Stewart has for years blamed societal misinformation for our consistently low ratings in the public eye. Our very existence is at risk if we continue to employ public relations talent to solve what ails us. What is needed instead of stern judges, strict law professors and harsh penalties for those that work the edges of ethics, abuse the system and forget the sacred duty owed to the Courts and clients.

If McDonalds burgers were rejected by the public like our product has been, they'd change the recipe, not the packaging.

If the profession is as high minded as we say it is and as it should be, we owe it to the public and ourselves to take a long and hard look at what it is that we have morphed into and start thinking about changing the recipe.

Mr. Josephs is a member of the Florida Supreme Court's Commission on Professionalism

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