By: James G. Apple, Editor-in-Chief, International
Judicial Monitor and President, International Judicial Academy
Earlier in the fall of 2012 I attended a presentation by
Arne Duncan, United States Secretary of Education and a member of President
Obama’s cabinet. In one place during his speech Secretary Duncan made reference
to his hope that through policies and programs that he was promoting, teachers
(meaning grammar, middle and high school teachers) would someday soon be
recognized as “professionals,” with attendant salaries and respect.
I remember several years ago, after the disintegration of
the Soviet Union, I had prepared an agenda for, and then conducted, a seminar
for a group of judges from the Russian Federation, consisting of presentations
by various experts who were practicing lawyers or prosecutors. At the end of
the day I was talking to one of the judicial participants, a member of the
Supreme Court of Russia, and asked her opinion about the presentations. She
singled out one lecture by a prosecutor as being especially meaningful. I
inquired of her why she was impressed with that particular presentation. The
Russian justice responded that the prosecutor’s lecture had been “very
professional.” I reflected later about what it was about this particular
presentation that was noteworthy. The speaker displayed in the presentation a
strong sense of competency as a prosecutor and extensive knowledge of her
subject. Her delivery was very direct and forthright. She had spoken clearly
and precisely, without histrionics and within the prescribed time limits. That
qualified the presentation, in the eyes of the Russian Supreme Court justice,
as “very professional.”
I remember another occasion, a long time ago, when I was
riding on a bus from one of the New York airports into midtown Manhattan. It
was late in the evening, the bus had few other passengers, and I was seated
near the front of the bus and the driver’s seat. To break the monotony I
engaged the bus driver in conversation. In the course of our exchange I
revealed that I was a practicing lawyer. In the ensuing discussion he made
several references to his job driving a bus as a “profession,” and what was
required of him in his “profession” in terms of working hours and routes to be
followed. I remember being (with more than a small degree of arrogance, disdain
and snobbery at that time in my life) surprised and slightly amused at his characterization of his
vocation as a “profession” (after all, I was a lawyer, a member of the
quintessential “profession”).
As these anecdotes reveal, references to “profession,” or
“being in a profession,” and characterizing certain actions or activities as
“being very professional” are common expressions in discourse, at least in the
United States. One also hears from time to time that some person has “not acted
professionally,” or has been very “unprofessional” in his or her conduct. For
instance, an article in the Seattle Times several years ago reported
that a local judge had been “admonished” by the Washington State Commission on
Judicial Conduct for “unprofessional conduct” in using inappropriate language,
including a racial slur, in his courtroom in front of attorneys and persons
appearing before him.
Episodes such as this one inspired my thinking and desire to
make a deeper inquiry into the whole subject of professionalism and what it
means to be “in a profession,” and “acting professionally.” In particular I
wondered at the meaning of these terms in their application to the judiciary,
and in the context of judges and judging. Is judging a profession? If so what
are the standards of conduct for judges as such? Are judges expected to “act
professionally.” Is there really such a thing as a judge “acting
unprofessionally?”
In so far as judges are lawyers (as they are in the United
States, in the U.K. and in other common law countries) it may not be difficult
to answer these questions, at least superficially. The legal profession is, as
noted earlier, the quintessential “profession.” And lawyers’ actions and
activities are governed by a code of professional ethics or code of
professional conduct that outlines what kind of behavior of lawyers is either
appropriate or not appropriate. Such codes and the behavior they regulate
provide the standards and measures by which a particular lawyer’s conduct can
be evaluated. We can know by these references whether a particular lawyer is
“being a professional,” or is “acting professionally.” But the lawyer’s code is
not much help when considering the judiciary.
The code of conduct for lawyers is really not much help on
the issue of judicial professionalism because that code deals largely with the
obligations of lawyers with respect to their clients, obligations of diligence
in representing the client’s affairs and interests, the confidentiality of the
client’s disclosures, and care of client’s funds. Only in the lawyer’s
obligation to improve the administration of justice does the lawyer’s code of
conduct come near to what conduct might also be expected of a judge.
When I became interested in this topic, I did some reading
on the general subject of professions and professional conduct. There is some
commentary on the subject, although the literature is not extensive. Many of
the pieces I read were short essays or lists that appeared in various
commentaries that could be classified as self-help or self-improvement guides,
detailing how an individual might get along better in a typical business
environment, or about how a person could succeed in business by “acting
professionally.” However these readings proved useful in identifying certain
characteristics that are included in most discussions of “professionalism.”
These characteristics center first around the idea of being
technically proficient or competent at one’s job. There is also the characteristic
of ethical behavior and integrity when performing one’s job. There is also some
idea of selflessness, that is, not acting always for selfish gain, or for
purely selfish reasons, but acting toward some higher purpose, such a improving
the administration of justice mentioned earlier. Also present is an element of
learning, through both study and experience, and both formal and informal, and
in both preparation for being in a profession, and then later, in actually
being a member of a profession. And finally there is an element of
relationships with others, and duties and obligations towards others, often
stated in terms of respect and fairness and even gentleness and kindness.
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One particular well thought out essay that I came across
while surfing the web delved deeply into the subject, analyzing carefully the
terms “profession” and “professional.” The author included discussions of
“concept of profession,” “professional knowledge,” “professional work,”
“defining the scope of a profession,” “professional ethics,” “entry and
qualifying processes,” and “continuing professional development.” He ends the
essay on a note of confession: his approach reveals an “Anglophone bias,”
noting that many of his ideas, beliefs and arguments would not be valid in France,
Italy, Germany or other European states.*
While these discussions do provide some help in exploring
the general idea and nature of judicial professionalism, they do not confront
the specific issues raised about it, and without really answering the key
questions posed earlier.
In answer to the question, is the judiciary a profession, I
would have to answer that question with a resounding “yes.” Being a judge
meets all of the requirements imposed on the “classical” professions (meaning
law, medicine, the clergy, university professor), that of learning and study,
and extensive and specialized knowledge, and proficiency in the application of
that knowledge. There is certainly an element of ethics and integrity in being
a judge, even more so than for a lawyer. And there is definitely an element of
relationships with others, including lawyers, court staff, and
parties/litigants with whom the judge must come into contact. So being a judge
is definitely being a member of a distinct profession. Given that point, what
does it mean for a judge to “act professionally,” or to put the issue in the
negative, what constitutes unprofessional conduct for a judge?
Several observations are appropriate here. First “being in a
profession” and “being professional” are different from “being in a
professional position.” The first two are much harder than the second. One can
be in a professional position without being a professional. Being professional
or in a profession requires higher qualities than merely meeting a job
description. For instance, a person without the requisite proficiency in legal
knowledge could be in a lawyer’s position but would not truly be a professional.
And likewise a person in a judicial position without the requisite proficiency
in legal and procedural knowledge could be in a judge’s job, but that judge
would not truly be a professional. Something more is expected and required.
Judges, at least in the United States and other “common law”
countries, generally occupy an exalted status in society. Citizens look up to
judges; judges command respect and admiration. Judges are also generally
well-paid, especially in relation to society as a whole. And judges have an
exalted role in what they do – judges act continually on many important
matters, deciding contentious issues that can and do have important
consequences, both short and long term, for individuals and organizations. With
such status and responsibilities are expectations of exalted conduct. And
therein lies the reason why judicial professionalism is at a different and
higher level than that of other professions, and how it can be appropriately
analyzed.
First there is the issue of knowledge and competence, of
which judges must have in abundance, and which they are obligated to display if
their decisions and the court system and legal system are to have the necessary
respect for the legal process from litigants, their lawyers, other players in the legal system, and the
general public. Knowledge and competence of judges, in
the modern functioning of a court system, are achieved not only through formal
education and experience, but also through continuing professional education.
Next on the list of requirements for judicial
professionalism are a devotion to concepts of truth and fairness, and an
absence bias and prejudice. Of all the characteristics that surround a court
system and justice system, the one that is most admired by citizens who use them
relate to the idea of fairness, of which the most important ingredients are the
absence of bias and prejudice on the part of judges, court officers, and others
connected with court and legal proceedings, such as police officers. A court
system composed of judges with these qualities, combined with a willingness on
the part of judges to listen, is a court system that will be accorded the
highest respect by citizens, the kind of respect that is so necessary for the
proper functioning of the rule of law.
Also to be included in a list of ingredients of judicial
professionalism is ethics and integrity. Because judges are involved in so many
important decisions that often have enormous consequences to individuals and
organizations, and because they are the living embodiment of the legal system
of a state or nation, their conduct must conform to the highest levels of
ethical behavior both within and outside the court system. Just as lawyer
standards require placing the interests of the client foremost, and due
diligence in serving those interests, so the standards of judges require
placing the interests of the court system and legal system foremost, and
requires due diligence in the serving those interests.
Last on the list of basic requirements for judicial professionalism
is a requirement of proper personal conduct of the judge with respect to
lawyers, court staff, litigants and the public. This requirement involves a
whole panoply of specific types of conduct that can be listed. Such ingredients
include always treating others with the respect due them as fellow members of
the human race. Also involved would be the characteristics of punctuality,
confidentiality for confidential matters, listening to others, and “dealing
with sensitive issues privately.”
There are undoubtedly other characteristics or ingredients
of judicial professionalism that could be listed. But the above analysis can
certainly serve as strong starting guide to someone searching for meaning of
the terms “profession” and “professionalism” when applied to the judiciary.
It is appropriate to close with an observation made by one
commentator when discussing another profession: “A professional is someone who,
regardless of job title, position, or education, conducts themselves in a
manner that reflects positively on themselves, their organization and [their
vocation] as a whole.”
*The full text of this article, titled “On professions and
being professional” by Stan Lester and dated November 2007 (last updated in
June 2010) can be found at the web address of www.sld.co.uk.
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International
Judicial Monitor