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Mark Fogg Council Visit

CBA President Mark Fogg Speaks to the Litigation Section Council

In early November, Mark Fogg stopped by to share his impressions and experiences as CBA President with the Litigation Section Council. Mark explained that over the past year he has visited each of the local bar associations to find out firsthand what concerns and interests members across the state. Working with various CBA members, Mark hoped to come up with a number of concrete goals to help benefit Colorado lawyers. Regardless of whether he was meeting with a large municipal bar association or a smaller rural association, Mark heard the same concerns again and again: practicing attorneys want to address problems relating to (i) the public’s access to justice; (ii) their fellow lawyers’ professionalism; and (iii) the public’s perception of lawyers.

Every member of society is entitled to some form of competent legal representation, Mark said. He discovered there are a number of legal services available at the local level, but many of these have been decimated by huge budget cuts. Each local Legal Services program requires funding to keep its doors open and everyone is working hard to find different ways to fund Colorado Legal Service and pro bono programs. In connection with his duties as CBA President, Mark reaches out to the local associations to find out what they need to keep going. In the process, he’s discovered that a number of individuals have come up with their own creative ideas, with some lawyers capping fees, or others working at reduced rates to provide services for people who might otherwise be unable to afford their representation. This kind of assistance benefits the entire legal system. Mark explained that there has been a 65 percent increase in pro se domestic relations cases in the last five years. Unfortunately, pro se litigants do not necessarily know or understand the legal system. Judges tend to be deferential to pro se litigants, but judges cannot, of course, litigate on the pro se client’s behalf. As a result, many pro se domestic relations cases get tossed out of court because litigants do not know what they’re doing. We are heading more and more to a lawyer-less courthouse, Mark said, because 75 percent of the population cannot afford an attorney. This is our collective fault, he continued, because we’ve failed to implement solutions that allow people access to justice. Very simply, we are not serving the lower and middle classes.

Mark explained that it was our duty to do more, and to somehow find a way to increase our pro bono and ‘low bono’ work. It comes down to our regard and reverence for our profession, although Mark recognizes that there are some areas of law that lend themselves more to these kind of services than others. Mark stated that “unbundled legal services” were likely the way of the future. This sort of service would allow you to provide low cost assistance to someone if he or she came to you and said, for example, ‘I have a mediation tomorrow. Can you sit down with me for an hour and help me prepare?’ or ‘Can you come to court with me for just this one hearing?’ In fact, an informal survey at one local bar association suggested that 90 percent of attorneys polled are already doing something like this, while in some areas there is very little unbundling. The Colorado Rules of Civil Procedure were recently amended to better effectuate this kind of representation (see, e.g., C.R.C.P. 121, section 1-1(5)). An unbundled practice is all about retaining and servicing a middle class clientele, while also having the benefit of allowing sole practitioners to spread some of the risk of clients defaulting on their bills.

We are in this rare slice of the planet where lawyers make more than judges, Mark explained. Mark’s father used to say to him ‘You are now a lawyer, so you get paid to worry for other people.’ These words have stayed with Mark over the years and he sees it as the lawyer’s mission to provide a service to clientele of varying means.

Mark agreed with a Council member’s point that lack of access is a societal issue, and the community and legislature need to be more involved. Moreover, the Council member said older attorneys are often isolated from new attorneys and lack any kind of awareness or understanding of the problems new practitioners face today. Schools in the United States graduate 45,000 new lawyers every year, Mark said. Today about one third of every graduating class cannot find work within the legal profession. Many of those new attorneys simply hang a shingle. We need to find a productive way to help these young lawyers, many of who are working without guidance and direction.

Mark also addressed concerns regarding professionalism among bar members. He said it was his experience that attorneys sometimes have “civility” issues, but that 90 percent of the problems lawyers have with one another are due to misunderstandings. He agreed that perhaps 10 percent of attorneys are bullies and you can’t do anything about them, but it was still worth trying to reach the other 90 percent and figure out a way to pass on professionalism to young lawyers. He rejected what one law professor told him—“We don’t teach manners in law school”—in favor of setting a better tone for people entering the profession. Judges are often reluctant to police attorney behavior, Mark suggested, because (i) they don’t want to get into the sandbox; (ii) they don’t want to be reversed; and (iii) frankly, the attorneys who scream and complain the loudest are often the only ones who fill out the judicial evaluations—and judges, like most of us, worry about being retained … although perhaps the younger judges are arguably over-concerned about retention. The courts either do not want to or cannot get involved. Judges want to go by the rules, leaving us lawyers to police our own behavior.

A lot of young attorneys Mark and other experienced attorneys speak with say their clients expect them to chew glass and be pitbulls (and worse). At some point, however, Mark said we have to tell the client ‘That’s not what I’m gonna do. If you want a guy who chews glass, it’s not gonna be me.’ It’s important to establish boundaries early in a client relationship. With regard to those infamous Friday 5:15 p.m. deliveries, faxes, and emails, Mark advocated giving opposing counsel a second chance. He suggested that perhaps 10 percent of attorneys out there employ this kind of tactic for the sole purpose of being contemptible, but recommended not assuming the worst in your peers.

A Council member suggested discovery disputes often drive these sorts of needless personality conflicts. While lip service is paid to mandatory disclosure, discovery is usually accompanied by an atmosphere of obfuscation and non-disclosure. Mark thought billable hour pressures contributed to this attitude, since discovery disputes, many of which are legend, can contribute significantly to one’s billables. Thirty or so years ago, people would propose fixed fee arrangements. Padding is terrible, but what’s worse, in Mark’s estimation, is the culture that often accompanies the billable hour. The focus—that is, what’s the best thing for the client—can often get lost as we care more about the billable hour than the client’s best interests. Today many firms eschew a professional model for a perceived more profitable business model.

Lawyers may have an image problem, but shortly before he left private practice, Mark explained he had an experience that essentially renewed his faith in our profession. Mark had a client who called him up one day and said his son was thinking about being a lawyer. Mark agreed to allow his client’s son to tag along with him and Mark took him to criminal court to watch the workaday proceedings from the back of the courtroom. Mark and his client’s son observed a hearing during which a middle aged father of three young children was brought before the judge. He had no criminal past—not even a traffic violation—but on a routine traffic stop of a car he was riding in, the police found a pound of illegal drugs in the trunk of the car. Mark said the man was literally shaking and that there was a genuine sense of pathos in the courtroom. The man’s lawyer did an artful job of explaining to the judge how and why he should reach the right decision. Mark was on the edge of his seat as the judge issued his ruling. In the end, the judge put the offender on probation, subject to some wise and onerous restrictions, but he avoided jail time. As attorneys, we don’t give ourselves enough credit on the impact we can have on others. That’s a very cool way to spend your existence on this earth, Mark explained, noting also the generosity of many lawyers. It is important to honor the profession by continually doing good in this way.

Finally, Mark spoke about the value of community service. He believes lawyers have long played an active role in community service and, further, that we should continue to play an active role. He said it is critical for all lawyers, but, perhaps, young lawyers especially, to find a balance between professionalism and community service. Otherwise, he said, the profession will drain you.

Mark concluded by telling an apocryphal story about a young Greek law student whose proud father turned to him upon graduation, congratulated him and told him “axios.” Axios has two meanings, the father said. The first meaning is “you are worthy.” The second meaning, however, is “be worthy.” We are privileged to be lawyers in the greatest legal system in the world, Mark explained. It behooves each of us to be worthy of this profession. We should embrace core values like professionalism and community service and serve as role models for the next generation of lawyers.

The Litigation Section Council thanks Mark Fogg for spending his Saturday morning with us!