Judge Miller Delivers Keynote Address on Professionalism to the Class of 2018
U.S. Magistrate Judge for the District of North Dakota Charles S. Miller, Jr. delivered the keynote address to the Class of 2018 during a special convocation ceremony to kick off orientation week activities. The keynote focused on professionalism and what lies ahead for the new 1L students. Following his address, Judge Miller led the new students in taking an Oath of Professionalism and a formal pinning ceremony.
A transcript of Judge Miller’s keynote address to the Class of 2018 is below.
UND School of Law Convocation Speech – August 17, 2015
Magistrate Judge Charles S. Miller, Jr.
Students, parents, and friends – it is an honor to be asked to be a part of the ceremony this evening. I want to thank Dean Rand and Assistant Dean Parrish for the privilege.
With this ceremony tonight, our new students will take their first step toward becoming a professional in the field of law. My task, in addition to later leading a pledge of professionalism, is to provide you with some thoughts about the subject, including the importance of your beginning now to consider yourself a professional with all that it entails.
The terms professional and professionalism can mean different things depending upon the context in which they are used. In the noble and learned profession of the law - where much is expected of those who engage in it, professionalism means more than just meeting the minimum academic requirements for entry. It also embodies a number of values, including those that are the subject of the pledge that you are about to take.
Honesty and ethical conduct
One set of values that the pledge places particular emphasis upon is honesty and ethical conduct. In our profession, these are not just aspirational - they are absolute requirements. As you will learn, we have a code of professional responsibility for licensed attorneys that sets forth requirements for ethical conduct and the bar is high. And, if you cannot live up to these standards, chances are your career will be a short one because we do a good job these days of policing our profession and weeding out those who cannot meet the minimum standards. But, even though we have set the bar high, to be a good and an effective attorney – a true professional - requires going beyond what will keep you out of trouble with the profession’s regulators.
For example, the practice of law often involves resolving disputes between different parties. While mention of this subject leads many to think of courtroom battles - given what we see on TV and the movies, I venture to say that 99.9%, or more, of legal disputes and problems are resolved without anyone going to court. Rather, resolution is reached through discussion and negotiation. And, for the few cases that are filed in court, you might be surprised to learn that, in the civil arena, less than 5% of the cases ever get to trial, with a large part of the remaining 95% being resolved again by negotiation and settlement – just at a latter point in the dispute resolution process.
My experience, based on a career of helping clients solve problems through negotiation and discussion in a wide variety of contexts and now in conducting settlement conferences for our court, is that, if you have a reputation for being deceptive or for promising to do one thing and then doing another, your ability to get matters resolved for your client will suffer greatly because of the distrust that your lack of candor and lack of forthrightness engenders. You will not be effective as an attorney and you will do a disservice to your client.
Also, for the few cases that do end up having to be resolved by a judge or a jury, the most effective advocates are those who acknowledge upfront any weakness in their case but then go to explain why their client should prevail nonetheless. Those who try to hide problems or, even worse, deliberately misstate facts or points of law do their clients a great disservice because once uncovered, and usually it is, this lack of forthrightness or deception casts a pall over their entire case. Unfortunately, I have seen this happen more than it should.
Another significant part of the practice of law involves giving advice and counsel to your client. And here, giving candid and honest advice is the hallmark of a true professional – even if it means telling a client what the client does not want to hear - even if it might result in losing the client, if one is in private practice, or losing a chance for a promotion, or even in a rare instance one’s job, for those who are in-house counsel for a corporation or a governmental entity. Recently, we had a situation where an attorney was so concerned about cultivating and keeping a client’s business, he failed to provide much needed advice at a point where he may very well have dissuaded his business client from engaging in criminal conduct. The end result was his client being indicted by the federal grand jury on serious federal felony charges. Had the attorney acted as true professional when it counted, this might very well have been avoided.
These are just some examples of why being a true professional requires comporting oneself in an honest and ethical manner. In fact, it is not trite to say, because it is particularly true in the practice of law, that your reputation for honesty and integrity are everything. And, once lost, it is hard to get these back. Before he was President, Abraham Lincoln was a very sought after and respected lawyer. He recognized this when he said to one of his partners who had filed a pleading that it was not accurate: "Hadn't we better withdraw that plea? You know it's a sham, and a sham is very often but another name for a lie. Don't let it go on record. The cursed thing may come [back] staring us in the face long after this suit has been forgotten."
Civility, courtesy, and respect
Another focus of tonight’s pledge is committing yourself to treating others with civility, courtesy, and respect. This too is an important part of being a true professional for many of the same reasons as honesty and ethical conduct.
As I have already mentioned, a significant part of the practice of law involves resolving disputes – mostly out-of-court, but sometimes in court. Like those who develop reputations for lack of candor and forthrightness, attorneys who are discourteous and lack civility, in my experience, are also not very effective in getting disputes resolved for their clients. For one thing, the lack of civility and discourteousness often impedes the communication and discussion needed to get the matter resolved. Also, it sometimes results in poorer terms for the client, because disrespected persons on the other side may be less willing to make concessions that otherwise would be made simply because they do not like the way they have been treated.
And, if you have to go to court to resolve a dispute, jurors in particular do not like attorneys who are discourteous and uncivil. This is something I learned very quickly in trying cases both as a federal prosecutor and while in private practice. Also, in the cases tried in our court, we routinely visit with juries after they have completed their service. In a number of instances, they have commented on what they perceived to be uncivil and boorish conduct on the part of an attorney and the fact they were turned off by it. I recall one recent case in particular where it was apparent that the jury took the incivility of the lawyer out on the client by returning a much larger monetary verdict for the other side than would be expected given the facts of the case.
Also, we as judges do not like persons who are discourteous and disrespectful. For one thing, we are members of the profession and do not care for conduct that disrespects it. For another, it often creates more work for us. Attorneys who are discourteous and disrespectful often have difficulty in getting cooperation from opposing counsel – even for routine things like scheduling of pretrial work. This leads to the court having to referee disputes over matters that attorneys acting professionally could otherwise have resolved. And, with our busy dockets, when we have to drop everything else and do this, we are not very happy.
Let me comment briefly on two things that, in my experience, often breed unprofessional conduct. One is when a client is more interested in revenge and having punishment being doled out, than any particular outcome, and wants the attorney to engage whatever “Rambo tactics” will achieve that. Unfortunately, some attorneys will accede to these wishes - confusing the obligation to vigorously and zealously represent the interests of the client with doing everything that the client may insist upon. There is a point at which your responsibility to the court and the rule of law takes precedence over the wishes of your client. And being uncivil and boorish, just because this is what your client wants, crosses that line.
An even greater problem that I see are attorneys who get too caught up in winning that they lose perspective, with the end result being a lack of candor, incivility, or even worse. You will not win every case or argument, nor should you. Sometimes the other side has the better argument or case and your role then, as an attorney, is to help mitigate the damage or manage the consequences. When I was a federal prosecutor, a governing principle that was ingrained upon us by the Department of Justice was that even when we lost the case, the United States won if justice was done. The same applies more broadly. A true professional is one who can maintain this perspective and keep in mind that winning does not justify the use of any and all means employed to achieve that end.
The pledge that you will take tonight requires that you begin now to conduct yourself as a professional in terms of honesty and ethical conduct and acting with civility, courtesy, and respect. And, this is how it should be since becoming a professional in the field of law requires more than just learning about the law. And, while I doubt there is much that the law school can do for persons who are fundamentally dishonest, I do think that candor, the ability to maintain a proper perspective, and civility and courtesy are all habits that can be cultivated; that you can become better at them over time with practice; and that starting now will put you in good stead for what comes later. Also, given that you may very well have to interact with your classmates in the future, it is not too early to begin developing a positive reputation for honesty, integrity, and forthrightness.
Dedication and commitment to excellence
The values I have talked about so far - honesty and ethical conduct, civility and courteousness - are, in a broad sense, and for lack of better words, “Ten Commandment” types of things. But, there is more to being a professional and professionalism, however, than simply being a good person. And I would be remiss in talking about professionalism if I ignored another very important part, which is dedicating yourself to acquiring the necessary knowledge and skills to be a good lawyer and making a commitment to excellence.
As one person writing about professionalism has observed, and I am paraphrasing now:
Professionals are those who evaluate what needs to be done and then they do it fully – without thinking in terms of what is the minimum needed to get by.
True professionals take pride in the quality of their work and strive for excellence.
True professionals value continued learning and refining their craft.
In whatever capacity you may practice law, you will be called upon to provide advice, counsel, and services with respect to your client’s most important affairs. And, for this aspect of professionalism, it is absolutely imperative that you start now – not only by diligently pursuing your studies to acquire the basic framework of the law and, perhaps, some skills training, but, even more importantly, to develop the mindset of a true professional in terms of not being satisfied with the minimum, being dedicated to do what it takes to learn your craft, and always striving for excellence.
In closing, I know - having been in your position here at UND more than 40 years ago - that, in addition to the excitement of now embarking upon a new career, there may be a certain amount of apprehension and anxiety.
You would not be here tonight if you did not have what it takes to succeed. If you work hard and follow through on the commitment you are about to make to adopt the mindset of being a professional - with all that it embodies - you too will become an attorney whose advice, counsel, and services are sought after and valued.
I think it is this commitment to being a true professional that Lincoln had in mind when he told a person aspiring to become an attorney: "If you are resolutely determined to make a lawyer of yourself, the thing is more than half done already." Make the commitment tonight, follow through, and do the profession proud.