Dichotomy, Antipodes, Antithesis, Oxymoron? I struggle for words sometimes. You young folks get ready for it, it happens to us all. What is a good word to describe two ideas that are opposites.
Imagine lawyers espousing professionalism. Lawyers expressing pride in the level of professionalism in their practice. Picture a flowing discussion regarding communication among litigants and lawyers, good faith, and how that system is better than what those lawyers perceive in practice areas other than workers' compensation. The topic of this conversation was Rule 60Q6.115, and the good faith communication requirement. For the most part, there is a pride in the professionalism of this practice, and in the pre-motion engagement of "good faith" conversation in pursuit of resolution of differences. The discussion was not unanimous.
One voice noted that if you are doing something (anything) merely because a rule requires it, that is not professionalism. That is a fair point; if you are driving 25 in the school zone only because of the ticket threat, you likely cannot proclaim yourself "safety conscious." Is really polite or professional if someone is making you be that way? That is a criticism, and a constructive one at that (in my humble opinion). While it perhaps argues against a rule requiring professionalism, it is not an opposite.
Later in the same conversation, the provision of section 440.192(4) came up. This says:
"The petition must include a certification by the claimant or, if the claimant is represented by counsel, the claimant's attorney, stating that the claimant, or attorney if the claimant is represented by counsel, has made a good faith effort to resolve the dispute and that the claimant or attorney was unable to resolve the dispute with the carrier."
The spirit of this discussion was less focused on professionalism. But one voice commented that there is no statutory requirement that parties in workers' compensation disputes "act in good faith." The only requirement, the voice noted, is that a person says they have "made a good faith effort." This came up on a discussion regarding ideas regarding a requirement for proof of good faith. The statement may have been a suggestion that proof is irrelevant (good faith not required), but the phraseology was curious.
They are all valid thoughts (1) professionalism is good, and rules that promote (require) professionalism are good; (2) professionalism should be "above and beyond" what rules require; (3) the statute should be given a strict reading.
What does "good faith" mean anyway? It is used throughout the law, common, statutory, and regulatory. It is a favorite phrase. The Wex, maintained by the Cornell University Law School, defines it:
"A term that generally describes honest dealing. Depending on the exact setting, good faith may require an honest belief or purpose, faithful performance of duties, observance of fair dealing standards, or an absence of fraudulent intent"
The spirit of (1) and (3), supra, are seemingly not consistent with each other. In (1), there is celebration of professionalism, by rule or spirit. In (3), there is "we don't have to have honest dealing or an absence of fraudulent intent, we just have to say we do." Those two starkly contrast and paint a troubled and unfortunate picture. My pondering of them started me ruminating on potential descriptions of the seeming conflict (definitions from online dictionary):
Oxymoron - "a figure of speech in which apparently contradictory terms appear in conjunction."
Dichotomy - "a division or contrast between two things that are or are represented as being opposed or entirely different."
Antipodes - "the direct opposite of something else."
Antithesis - "a person or thing that is the direct opposite of someone or something else."
We first release oxymoron as the thoughts are too conjoined, and there is no conjunction of ideas within a phrase. This is not a combination of two opposite words within a phrase. Not an oxymoron. Certainly, there is dichotomy in the two expressions: (1) professionalism is good, (3) we don't have to act in good faith, merely say that we do. Dichotomy a contrast. It is not a bad descriptor, but not specific or descriptive enough. I thus hesitate between antipode and antithesis. Each aptly fits this dichotomy.
If a statute requires a certification of "a good faith effort to resolve," "honest dealing or an absence of fraudulent intent," then assuming the posture that there is no requirement to actually make such "a good faith effort" is antipodal and antithetical to professionalism. Perhaps, there is even a requirement of good faith despite the lack of specific, verbatim, statutory statement? Notably, there is likewise no requirement in the statute that even vaguely resembles "thou shalt not lie." However, there are some pertinent requirements in The Florida Bar Rules of Professional Conduct:
Rule 4-8.4(d) prohibits a lawyer from engaging in conduct that is prejudicial to the administration of justice.
Rule 4-8.4(c) prohibits a lawyer from engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation.
Rule 4-8.4(a) prohibits the lawyer from violating the Rules of Professional Conduct or knowingly assisting another to do so.
I would suggest that there is in fact a requirement that one engage in a good faith effort under section 440.192. Admittedly, the statute does not say "thou shalt make a good faith effort." However, it does say the lawyer will certify that s/he "has made a good faith effort." Thus, there must be a good faith effort or the lawyer is forced in the absence of one to violate the standards by which she or he is allowed to practice law.
The only way this would not be implied sufficiently is if one discounted or discarded the "thou shalt not lie" that governs all Florida lawyers, Rule 4-8.4(c). And, that is without the whole "prejudicial to the administration of justice" concept expressed later in Rule 4-8.4(d). One might argue I am splitting hairs, but it really seems to me that lawyers are obligated to tell the truth. The statute says they will represent that they are acting with "honest dealing or an absence of fraudulent intent," and it seems we can expect that representation to be true?
It is interesting that people view the world through different prisms and lenses. We all have various perceptions. But, perhaps we could all do with a little more reflection on professionalism, what it means, and what we might each consider to be its antipode or antithesis. Is it "above and beyond the rules?" Is it compliance with rules? Or, is it merely saying we obey the rules? I find myself confident in my definition of professionalism. What is yours?
Disclaimer: WorkersCompensation.com publishes independently generated writings from a variety of workers' compensation industry stakeholders. The opinions expressed are solely those of the author and do not necessarily reflect those of WorkersCompensation.com.