Vol. 31, No. 7
CBA Professional Reform Initiative Task Force Interim Report to the Board of Governors, May 2002
In September 2001, CBA President Laird Milburn appointed a Professional Reform Task Force under the chairmanship of immediate Past-President Dale Harris. The Task Force’s Interim Report to the CBA Board of Governors is reprinted here to inform the CBA membership of the Task Force’s work and to invite input from the members. The attachments to the report are not printed here, but are available at the CBA office and on the CBA website at www.cobar.org.
At its meeting in May 2002, the CBA Board of Governors authorized the Task Force to continue its work for another two years. Please send any comments or suggestions to Dale Harris, Davis Graham & Stubbs LLP, 1550 17th St., Suite 500, Denver, CO 80202, or e-mail him at: email@example.com.
Here is the report as it was presented to the CBA Board of Governors in May 2002.
In his first president’s message to CBA Members, President Laird Milburn wrote about the public’s declining respect for lawyers and his concern that this has contributed to the public’s loss of confidence in the justice system as a whole.1 Noting that the organized bar’s traditional approaches—attempts to inform the public that lawyers do many good things and to clear up "misconceptions" about the lawyer’s role in the system—generally have failed to improve the public’s negative perception, President Milburn announced his intention to take a more "direct approach" to this problem. To that end, he appointed the Professional Reform Task Force, charging it with the responsibility of evaluating a new Professional Reform Initiative that recently was established by a group of bar leaders from the National Conference of Bar Presidents, and to report its findings to the CBA membership. As explained more fully in this report, the first initiative addressed by the Professional Reform Initiative—and hence by this Task Force—is to emphasize truthfulness, honesty and integrity as the "core of the core values of the legal profession." The initiative proceeds from the assumption that untruthfulness by lawyers—to whatever extent the problem exists—requires the systematic and long-term attention of the organized bar.
Although the Task Force believes that it has just begun to scratch the surface of this issue, I am pleased to submit this interim report to the Board of Governors based on the work of the Task Force over the past seven months. The Task Force consists of approximately 70 members from all over the state and from a wide variety of backgrounds. I want to thank them all for their work to date, and encourage them to stay involved with this project. I especially want to thank the chairs of the five working groups who have comprised an informal steering committee: John Baker, Joe Dischinger, Cathlin Donnell, David Juarez, and Tony van Westrum. As always, Chuck Turner and his staff, especially Dana Collier Smith, have given us much valuable support.
May 11, 2002
Dale R. Harris
PRI Task Force
The Professional Reform Initiative ("PRI") is a project of the National Conference of Bar Presidents. Its membership consists of judges, lawyers and non-lawyers who have adopted the following mission statement:
To increase public trust and confidence in the justice system and maintain the relevance of the legal profession in that system by promoting and nurturing effective professional reform.
The first "initiative" undertaken by the PRI group is to emphasize truthfulness, honesty and candor as "the core of the core values of the legal profession." PRI believes that while most lawyers are honest and trustworthy, a substantial number of lawyers do engage in some form of dishonest behavior; and that such behavior contributes to the widely reported low esteem in which lawyers are held by the public. This, in turn, leads to a loss of trust and confidence in the justice system as a whole.
Recent surveys confirm the low regard the public has for our profession. For example, last month Columbia Law School reported the results of a survey of one thousand people. Forty percent of the survey respondents thought lawyers were either "especially" or "somewhat" dishonest. Only politicians scored worse on this question. A second survey released by the American Bar Association in April found that only 19 percent of Americans are "very" or "extremely" confident in lawyers and the legal profession.2
There may be many explanations for the public’s perceptions, and the legal profession hardly is alone when it comes to examples of dishonest behavior. Well-known journalists and historians recently have admitted fabricating stories and plagiarizing some of their work; business leaders are falling by the dozens for misleading their stockholders; and respected college coaches have lost the most sought-after positions when it is learned they have falsified their resumes. Our society rewards winners, and the temptations to shade the truth, or to lie, in order to win are ever present.
But, as PRI stresses, "American lawyers must have the integrity and the moral courage to rise above" these temptations because, as officers of the court and stewards of the rule of law, they have special obligations to the system and to third parties that sometimes outweigh their obligations to their clients. Thus,
[L]awyers who do not tell the truth in the course of their professional activities—whether this happens often or infrequently—have a significant negative impact on the operation of the justice system. When clients, judges, and other lawyers encounter even a few instances of dishonesty, the system rapidly descends into a spiral of mistrust and inefficiency, as every point of consequence must be double-checked rather than taken at face value.
In order for lawyers to be fully restored to their necessary positions of trust, they must emphasize truthfulness and honesty as their stock-in-trade. That is the bold challenge implicit in PRI’s first project.3
To address this problem, and to develop and implement curative plans of action, PRI has challenged state and local bar associations to reach out to the judiciary, bar admission and disciplinary authorities, the law schools and to individual lawyers and the public. The Colorado Bar Association was the first state bar association to accept this challenge through the creation of this Task Force. Membership in the Task Force was open to any CBA member, and approximately 70Êmembers from around the state signed up.4 More than half of them have been active participants, including a diverse group of judges, lawyers from a wide range of practice areas and experience, and representatives of the University of Colorado and Denver University law schools.5
In order to carry out the work of the Task Force, five working groups were formed to explore the issues that may arise in several settings in which lawyer dishonesty may be observed: (1)lawyers appearing before courts and other tribunals; (2) lawyers’ relationships with their clients; (3) lawyers dealing with other lawyers; (4) lawyers and the public; and (5) law schools. The full Task Force met four times, and each working group met at least twice before issuing preliminary reports to the whole Task Force. The reports of the five working groups are attached as Appendices 4 through 8. [Available on the CBA website at www.cobar.org.]
The following section briefly summarizes the conclusions of the Task Force to date.
Conclusions of the Task Force
While there was not unanimous agreement on what constitutes "lying" or on the scope and extent of the problem, there was a broad consensus in all the working groups that lawyer dishonesty is a problem in our profession that should be addressed by the bar association. The working groups explored various forms of dishonesty they have encountered or had reported to them by others, ranging from relatively minor examples of dodging client phone calls with "white lies" to egregious examples of misrepresenting facts or law to the court, shifting blame for adverse results to judges or others, padding time records to meet billable hours targets and false and misleading advertising. We also considered more subtle forms of dishonest and deceptive behaviors including; for example, half-truths, negotiating tactics and hide-the-ball approaches to discovery. The lawyer/tribunal working group, which included several trial court judges, identified many forms of lawyer misbehavior that they have seen in their courtrooms. These examples are listed in the report of that group at Appendix 4. [Available on the CBA website at www.cobar.org.]
The Task Force believes that all these behaviors undermine the integrity of the judicial system, diminish the public’s perception of the legal profession and erode trust and confidence in our system of justice.
The Task Force recognizes, however, that complex issues are raised by attempts to analyze the causes of the behavior and attempts to address them. By way of example, many of our judge members point out that if they crack down on suspected cases of dishonesty in their courtroom, a Pandora’s box of troublesome consequences may be opened, ranging from the distraction and time lost while the court tries to determine the truth to motions for recusal by the accused lawyer. This may pose a critical problem in smaller communities where there are no other judges to step in to address the matter or to replace a recused judge. Other members have suggested that our adversarial system itself encourages many types of dishonest behavior, but that any proposal to change the system would not be a practical approach to solving the problems.
Because of the complexity of the issues, the Task Force believes that it has not had enough time to analyze all the issues and to explore whether unintended or adverse consequences of any proposed actions may outweigh the anticipated benefits. For this reason, the only recommendation offered by the Task Force at this time for action by the Board of Governors is that the Task Force, or a similar body, be established on a permanent basis with the authority to continue evaluating the issues and to develop and implement appropriate actions or programs that may help to improve the situation. Those actions or programs may include some or all of the following suggestions that have been made to date by the five working groups. The Task Force welcomes the input of the Board on these and any other suggestions for addressing the issue.
1. Suggestions of the Lawyer/Tribunal Working Group:
• Encourage judges and lawyers to be more proactive in curbing dishonest behavior by lawyers. One way to do so may be more aggressive reporting of lawyer dishonesty to the attorney regulation counsel under Rule 251.4.
• Encourage, and support, judges to use their inherent powers to sanction lawyers for dishonest behavior.
• Adopt appropriate educational programs for judges and lawyers concerning their responsibilities to the system.
2. Suggestions of the Lawyer/Client Working Group:
• The current Rules of Professional Conduct are adequate, and the group agrees that "rule changes would not make honest attorneys more honest or dishonest attorneys more honest."
• Periodic and repeated publication of articles in The Colorado Lawyer highlighting the importance of regular, open and honest communications with clients.
• The CBA should develop templates for written or video materials for lawyers to distribute to clients explaining relevant procedures and conventions. (This suggestion stems from the belief that many clients, under emotional stress, do not understand or hear what their lawyers tell them about what to expect in their case, and they later wrongly believe they were misled or misinformed by the lawyers.)
3. Suggestions of the Lawyer/Lawyer Group:
• Remove all references to "zealous advocacy" from the preamble and comments to the Rules of Professional Conduct.
• Use the occasion of the removal of zealousness from the Rules for seminars and other presentations by well-respected members of the bar on the reasons for its removal and the pernicious effects of dishonesty on a lawyer’s reputation, on the well being of clients, on the public and on the profession as a whole.
• Encourage the inclusion of education in law school and in professional seminars (and in elementary, secondary and undergraduate curricula) on the corrosive effects of dishonesty.
• Encourage individual lawyers to look inward, to examine their own behaviors and to emphasize the spiritually liberating effects of honest and truthful conduct in one’s own life.
4. Suggestions of the Lawyer/Public Group:
• Limitations on misleading advertising should be explored.
• Limitations on lawyers’ use of the media in connection with pending litigation should be explored.
• Expand our outreach in schools and civic activities to overcome the public perception that lawyers are rich, uncaring and greedy.
5. Suggestions of the Law School Group:
• Encourage the law schools to develop a continuing collaborative program with the bar association to: (a) invite qualified, selected practicing lawyers to meet with students and faculty to discuss "real world" ethical and professional dilemmas; (b) invite qualified practicing lawyers to help welcome new students during orientation and to plant the seeds of ethical and professional behavior; (c) develop teaching problems and vignettes based on real life issues and problems; and (d) develop a film series of "lawyer movies" in which professionalism and ethical issues have been explored.
• Create a standing committee of lawyers and law faculty to continue the analysis of how the organized bar and the law schools can effectively address issues of ethics and professionalism. Such a committee might institute an annual "professionalism day" at the law schools, or it might study how the bar association could be helpful in preventing, monitoring and resolving cases of student dishonesty such as cheating on exams and plagiarism.
The Task Force has found this to be a very challenging assignment. At times, it has seemed too broad a subject to come to grips with, especially since "solutions" inevitably involve attempts to change lawyer behavior. Nevertheless, most of the active Task Force members believe that the CBA should rededicate itself to the PRI proposition that honesty and truthfulness are essential to the well being of our profession and the public’s respect for it. As PRI has suggested, if we can succeed with this initiative, we should see benefits in several ways: help preserve our system of justice, increase public respect and support for the legal profession and, indeed, increase our own self-respect and job satisfaction.
These are goals worth striving for, but they cannot be achieved overnight. This is a long-term project and we seek the Board of Governor’s support for continuing the effort.
1. See Milburn, "CBA President’s Message to Members: Professional Reform," 30 The Colorado Lawyer 51 (July 2001).
2. News reports about those surveys are attached as Appendix 1. [Available on the CBA website at www.cobar.org.]
3. A more complete summary of PRI’s views is attached as Appendix 2. [Available on the CBA website at www.cobar.org.]
4. The list of members is attached as Appendix 3. [Available on the CBA website at www.cobar.org.]
5. Colorado Supreme Court Justice Greg Hobbs attended several meetings and contributed many helpful thoughts and ideas. However, he did not vote on any matter coming before the Task Force.
6. The Task Force chair and the chair of one of its working groups have agreed to present a program on this topic to the state judicial conference in September 2002.
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