As lawyers, we strive to act professionally. Many of us believe we act professionally in our practices. But what is professionalism? How do you describe it? If you act ethically by following the Rules of Professional Conduct, are you acting with professionalism?
There is an important difference between ethics and professionalism. "[E]thics prescribe what a lawyer must do while professionalism prescribes what a lawyer should do."1 Stated differently, "ethics is a minimum standard which is required of all lawyers while professionalism is a higher standard expected of all lawyers."2 Therefore, an attorney can act ethically by following the Rules of Professional Conduct, yet fail to act with professionalism.
How does an attorney know if he or she is acting with professionalism?
"Professionalism starts from the proposition that there are often alternative ways of addressing various situations, none of which, strictly speaking, would violate one of the Rules of Professional Conduct. The question then becomes what course of action is the most professional way to address these situations."3
The difference between ethics and professionalism can be illustrated by an example. You represent the seller of business assets. In negotiations with the buyer's lawyer, it becomes clear to you that he does not understand that he should submit a notice of sale, transfer or assignment in bulk to the New Jersey Division of Taxation. By failing to do so, the division will not issue a tax escrow letter requiring the buyer's lawyer to hold a portion of the purchase price in escrow, nor will it issue a tax clearance letter. As a result, the buyer will be responsible for any state tax liabilities of the seller. What must, or should, you do?
Nothing in the Rules of Professional Conduct obligates you to notify opposing counsel that the notice should be submitted to the division. The Rules of Professional Conduct do not require a lawyer to do the work of his or her adversary. You act ethically by remaining silent, but your reputation and integrity— two characteristics of professionalism—will suffer. As a professional, you should strive toward a higher standard, and notify your adversary about filing the notice with the division. Lawyers' opinions can differ on the subject of professionalism.
Indeed, many lawyers are probably unaware that they may, or should, do more than simply observe the Rules of Professional Conduct in the practice of law. In this regard, more than 25...