Denver Bar Association
December 2008
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Professionalism — What are the Next Steps?

by Mark Fogg

 

We received an inspiring e-mail at the bar association offices the other day. It was from Judge Tom Moorhead, a District Court Judge in the 5th Judicial District in the high country. The judges there have decided to challenge themselves by stepping forward as innovative leaders of professionalism in their legal community.

They requested a copy of the new, locally produced, DVD of vignettes on professionalism, and the accompanying teaching manual, from the Professionalism Coordinating Council. Setting this goal is no small challenge. We applaud the judges for taking on this leadership role.

The new DVD (see article in this issue, p. 5) is just part of a dialogue on professionalism in Colorado that is building momentum. These professionalism vignettes are being shown and discussed in the law schools, law firms, governmental agencies, Inns of Court and bar associations around the state.

Led by CBA Chair Jack Eckstein and DBA Chair Donald Alperstein, the Professionalism Coordinating Council has been very busy, and not only with the DVD.

First, a lot of effort went into updating the DBA Principles of Professionalism last year. The new principles cover the practice of transactional law, not just litigation. Next time you’re online, see what long-time, successful attorneys should aspire to, listed at www.denbar.org under "Governance" and then click "Principles of Professionalism." You’ll even find metadata tips there.

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Lawyers and judges need to understand
that a lack of professionalism is a shared
problem with shared solutions.

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Another resource is available from the bars, beyond the DVD and new principles. More than 30 lawyers continue to voluntarily assist in the resolution of professionalism disputes through the DBA Metropolitan Professional Conciliation Panel. Chaired by DBA President-Elect John Baker, the panel has lawyers from bar associations throughout the Denver metropolitan area, from all aspects of practice.

The panel is most effective in situations where a judge has made a referral order. There also are referrals from lawyers. A lot of effort goes into trying to help resolve the situation. Panel members typically meet with lawyers separately, and then bring everyone together to review pleadings or the source that may have caused hard feelings. Often, lawyers just want to talk through a difficult situation when they have nowhere else to turn. Panel members often get follow-up telephone calls from the judges and the lawyers, thanking them and acknowledging that the situation improved.

Our bars’ professionalism tools aren’t just for veteran lawyers. Both law schools in Colorado have welcomed bar association members to teach interactive classes on professionalism. Under Dean Beto Juárez, the Sturm College of Law at the University of Denver recently included professionalism training during first-year orientation. Attorney Julie Haines recruited and coordinated 12 Council members to lead classes of about 25 students each. A recent Carnegie Foundation study on the failure of law schools to deal with practical ethics and professionalism provides an opportunity for systemic change. At the University of Colorado Law School, professionalism is a major theme in orientation, ongoing lectures and the externship program. In fact, CU Law Dean David Getches last month at the Board of Governors’ meeting shared his views about the current movement toward "experiential education" in law schools. The movement goes beyond the case law Socratic method from the 19th century and provides greater integration of the clinical programs.

So, what are next steps? What can the Colorado legal community do to continue the momentum as a national leader on professionalism issues? Have we involved all the necessary individuals to help achieve improvement? Are these just feel-good measures with immeasurable goals? I believe there are clearly some areas to improve that can help maximize our prospect of measurable success.

We need an improved forum to define the model for an ethical and professional identity for lawyers in the 21st century. What are the stressors that lead toward our image problems? Is it greed or is it survival? Should pro bono work be mandatory?

We need more judges like the judges in the 5th J.D. to get involved in the discussion on professionalism. As Bar leaders, we could be better about recruiting judges. Before his retirement, Judge José Márquez provided valuable insight as a member of the Professionalism Coordinating Council. We have failed to recruit other judges to take his place. I hope all judges understand that their active participation in professionalism projects inspires lawyers to participate.

Lawyers and judges need to understand that a lack of professionalism is a shared problem with shared solutions. All too often, lawyers blame the judges for failing to penalize unprofessional lawyers. Likewise, judges blame lawyers taking up their time with silly antics. Considering all the time constraints and sacrifices of judges, they are tremendous role models on professionalism issues and can have a major impact on the success of any efforts to improve professionalism.

We also could look to other states’ professionalism efforts. More than a dozen states have developed "Professionalism Commissions." Some commissions are collaborative efforts among the state’s Supreme Court, the law schools and the bar associations. The missions of the commissions vary widely, depending on the culture of the state’s bar, whether the bar associations are mandatory or voluntary and the method by which judges are selected.

I am not convinced that a commission is the best route for Colorado. We do have an ad hoc committee, led by Richard Pennington, contacting each of these states to ask a series of questions of how the commissions are working. I am convinced that we need an organization that includes the law schools, judges, private practice lawyers, government counsel and corporate counsel to discuss these issues, set goals and establish programs emphasizing professionalism. It could very well be that our active Professionalism Coordinating Council is where this should take place.

Colorado is a national leader on professionalism and should continue to be so.


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