Douglas S. Lang and John Montgomery 2015-09-30 02:46:13
A white paper on increasing the professionalism of lawyers. The American Civil Trial Bar Roundtable has again advanced the cause of lawyer professionalism. An association of trial bar professional groups started in 1997, the roundtable includes both plaintiffs’ and defense lawyers who share their expert assessment of the state of the civil trial system and make recommendations for its future.1 In March 2014, the Roundtable issued “A White Paper on Increasing the Professionalism of American Lawyers.” This is another of the many accomplishments of the Roundtable, which also has included a white paper on preserving the right to a jury trial and professionalism published in September 2000 and revised in September 2006. Following on the precedent of the 2006 white paper, in March 2012, the Roundtable accepted the recommendation of the American Inns of Court Foundation’s then-President Donald Lemons—now chief justice of the Virginia Supreme Court—and then-Secretary Douglas S. Lang—a justice of the 5th Court of Appeals in Dallas—that a report be issued on the history of the legal professionalism movement, best practices in advancing professionalism, and recommendations for the future of the professionalism movement. Armed with the Roundtable’s approval, research was conducted by the Nelson Mullins Riley & Scarborough Center on Professionalism at the University of South Carolina School of Law using a cadre of law students to compile data under the direction of Dean Emeritus John Montgomery, who was the primary scrivener. In March 2014, the final white paper was presented and approved by the Roundtable. About five months later, after deliberation by the American Bar Association House of Delegates, a resolution was passed unanimously applauding the report and recommending “that bar organizations and others study the existing efforts described in the White Paper. ...” The Conference of Chief Justices passed its own resolution on January 28, 2015, that commended the paper and encouraged its members to review the findings and recommendations, which include the following: 1) Current professionalism education initiatives could be more effective if they have a central focus on supporting rule of law principles, the civil justice system, and the core values of the profession: honesty, integrity, civility, and service. Also, a new emphasis on lawyers educating their clients should be part of professionalism efforts. This, coupled with other efforts to better educate clients on the importance of civility, which should be acknowledged as an aspect of a lawyer’s professionalism responsibilities, could improve professionalism. 2) Civility oaths have been adopted in several states. These oaths serve not only as a useful reminder of the type of conduct expected of members of a learned profession, but aid lawyers in understanding the limits of appropriate conduct. Efforts to adopt civility oaths should be encouraged in states which have not yet adopted them. 3) New approaches, such as those undertaken by the Florida and Utah supreme courts and the Colorado Bar to establish boards to resolve professionalism complaints informally, should be monitored for whatever lessons about improving professionalism may be ascertained from their experiences. 4) Mentoring can take many forms and is rapidly increasing in the legal profession. It is demonstrably effective in transmitting the “culture” of a professional approach to law practice. It also is known to be one of the most effective ways in establishing new behavioral norms where education alone won’t succeed. Mentoring can be most effective in impressing on new lawyers the importance of professionalism. Its increased use in the legal profession should be strongly encouraged and supported. 5) Supreme court professionalism commissions have been the most active organizations in the profession in dealing with professionalism by bringing together all stakeholders. They operate in only about 25 percent of the states. Their creation in every state should be encouraged. 6) Hard information on the frequency of unprofessional conduct, either nationally or in individual states, is difficult to obtain and not routinely collected. Nor has the effectiveness of individual initiatives such as professionalism codes been evaluated. The only exception here is mentoring, which is evaluated in most states on an ongoing basis. More comprehensive gathering of data on professionalism and the effectiveness of various initiatives should be encouraged. As a part of this process, the Civil Trial Bar Roundtable supports the development of a “professionalism directory” for each state. This directory would be a qualitative state-by-state measure of the breadth of each state’s professionalism efforts. Possibilities for inclusion are the existence of supreme court commissions, bar committees, professionalism standards, civility oaths, bar and disciplinary counsel programs, mentoring, CLE programs on professionalism, access to justice initiatives, working with law schools, and data gathering. This is not an inclusive list. The Roundtable supports such an effort and is willing to participate in a meaningful way in its development. 7) The Civil Trial Bar Roundtable, through local groups of its national organizations, encourages active involvement with as many law schools as possible. The experience of individuals in member organizations could be invaluable in assisting law schools to strengthen their professionalism programs. This is a time of declining enrollments and tight resources for law schools. They could benefit from the active participation of Roundtable organizations and their members in increasing the professionalism and skills of law students. On March 14, 2014, the Roundtable recognized the AICF work on the white paper by presenting a plaque inscribed “In Grateful Appreciation for Your Outstanding Service and Leadership.” The AICF intends to continue to pursue the cause of professionalism with great vigor. The work of the Roundtable remains. This white paper, with the force of leading national legal organizations behind it, is an important step forward in the continuing effort to improve the professionalism of American lawyers. Unprofessional conduct still occurs far too often. It contributes to the popular misconception that lawyers are motivated by greed and routinely engage in overly aggressive behavior. The legal profession in the public mind is too often defined by the unprofessional actions of the few, instead of the work of the vast majority of lawyers everywhere who are trusted advisers and advocates, valued public citizens, and supporters of the American justice system. There are already significant new professionalism developments since the white paper was adopted in mid-2014. Mentoring initiatives for new lawyers are being studied in California and Connecticut. Florida, in addition to its Supreme Court authorizing professionalism panels,2 has acted through its state bar to establish that professionalism is now the “expectation” of all lawyers practicing there.3 This appears to be a step toward recognizing that professionalism should be considered customary practice, something more than the usual notion of professionalism as “aspirational.” However, a recent study has noted that, while about two-thirds of the states have adopted professionalism codes and creeds, many are outdated, often internally duplicative and silent on emerging issues such as use of technology. Even accessing these codes is difficult.4 As the white paper notes, a useful “next step” in improving professionalism would be the compilation of an up-to-date professionalism directory of activities in each state. A single portal with easily accessible information on professionalism could be extremely useful to courts, bars, commissions, law schools, and legal organizations. This and other initiatives, such as increased mentoring, can only strengthen the professionalism of lawyers. Work remains to be done until we reach the point where all lawyers are known and guided by our professional values of honesty, integrity, and civility. Notes 1) Members include the American Association for Justice, the Academy of Rail Labor Attorneys, the American Bar Association, the ABA Section of Litigation, the ABA Commission on the American Jury Project, the ABA Tort Trial and Insurance Practice Section, the American Board of Trial Advocates, the American Board of Professional Liability Attorneys, the Association of Defense Trial Attorneys, the American Inns of Court, DRI-the Voice of the Defense Bar, the Federal Bar Association, the Federation of Defense and Corporate Counsel, the International Academy of Trial Lawyers, the International Association of Defense Counsel, the International Society of Barristers, and the National Crime Victim Bar Association. 2) See In re Code for Resolving Professionalism Complaints, 116 So.3d 280 (Fla. 2013). 3) Gary Blankenship, Professionalism Expectations for the Electronic Age, the Florida Bar News (March 15, 2015). The Florida Bar Board of Governors approved new professionalism expectations on January 30, 2011, and sent them to the Florida Supreme Court for approval. 4) Cheryl B. Preston & Hilary Lawrence, Incentivizing Lawyers to Play Nice: A National Survey of Civility Standards and Options for Enforcement, 48 University of Michigan Journal of Law Reform 701 (2015). DOUGLAS S. LANG is a justice of the 5th Court of Appeals in Dallas, a member of the State Commission on Judicial Conduct, a trustee and member of the Executive Committee of the American Inns of Court Foundation, a past president of the Dallas Bar Association and the National Conference of Bar Presidents, and a past chair of the Texas Center for Legal Ethics. JOHN MONTGOMERY is dean emeritus and distinguished professor emeritus at the University of South Carolina School of Law and past director of the Nelson Mullins Riley & Scarborough Center on Professionalism.
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