Vol. 30, No. 7
CBA President's Message to Members
by Laird T. Milburn
During the next twelve months, I intend to emphasize two related areas of concern that I believe need critical attention if our justice system, and the role we lawyers play in it, are to survive without changes that none of us will like. My first concern is the continued decline in the public’s respect for lawyers. My second concern is the effect that declining respect has had on the public’s trust in the justice system as a whole. Therefore, as my term in office as your President progresses, I will announce two programs that will be designed to begin a process to effect positive change. The first of these two programs, which I address in the remainder of this message, concerns my belief that there is a need for professional reform.
For some years, Bar presidents have concerned themselves with declining respect for the legal professional and its corrosive effect on public trust in the justice system. They have recognized that increasing the public’s respect for lawyers is essential to any effort to improve public confidence in the justice system. Nevertheless, in the past twenty-five years, public respect for the legal profession has continued to decline. I doubt I need to prove that to some of you because your years in practice go back as far as mine, but for those who have not been in practice as long, I submit the proofs are numerous and quite simple.
— For the first ten or fifteen years of my practice, few, if any, bar associations concerned themselves with "improving the public image of lawyers," but by the late 1980s virtually every Bar president had that at the top of his or her list.
— From the beginning of my practice in 1972 until at least 1985, we told "lawyer jokes" about ourselves and laughed when others told them in our presence. In those days, not very long ago, we could make fun of ourselves because we were confident that ours was an honorable profession that the public respected and that the profession was healthy enough to laugh at its own foibles. Ten years later, all that has changed. Lawyers have stopped laughing at lawyer jokes—and the public no longer thinks of them as jokes.
— In a message to members, published in September 2000, the CBA President felt compelled to devote an entire article to the public’s belief that lawyers are not truthful and will do or say anything that it takes to win or advance the position of their clients.1
— In addition to these obvious signs of and reaction to declining respect in the last few years, survey results have confirmed plummeting public respect for the legal profession. In a nationwide survey conducted in 1994 for the American Bar Association,2 where Americans were asked to rate their attitudes toward nine professions, only 22 percent of the respondents thought lawyers were honest and ethical, a ranking just above auto mechanics. In a similar survey conducted by the ABA three years ago,3 only 14 percent of the respondents said they were "extremely" or "very" confident in lawyers. The only group generating less confidence was the media—at 8 percent. Finally, in a survey just completed by the CBA,4 where our members were asked to identify the three most significant problems our legal system and profession are currently facing, Colorado lawyers identified "the reputation of lawyers" and "lawyers behaving with integrity" as numbers one and two, respectively. While these polls may not be perfect reflections of public sentiment, it seems safe to say that in terms of our reputation for ethics and honesty, the past ten years have not exactly been a decade of progress.
What is the Concern?
We can debate the importance or significance of such public opinion. However, if my suspicions are correct, it may be particularly important to the long-term stability of the justice system that the public does not trust the lawyers who steward its laws and its justice. As long as the people do not trust the integrity of the lawyers who administer the legal system, they will never find it easy to trust the system as a whole—and the distrust of lawyers runs deep. The documented cynicism about lawyers’ ethics and trustworthiness, therefore, is no trifling concern. It is a valuable measure of how well the justice system is performing as a whole and how well the profession is performing its responsibilities of self-regulation. I submit it also is an ominous invitation to intervention by those outside the profession who may, or may not be, genuinely interested in the integrity of lawyers, let alone the continued viability of the American Justice System.
I think it is important to understand that we need to take a different tack in addressing professional problems that have arisen or worsened significantly in little more than two decades. There are those who would prefer to dodge the tough tasks that must be undertaken if we are to regain public respect, and those who will be quick to remind us that lawyers have never been "liked." They may suggest remedial measures, but such measures will not work unless they are aimed at the reasons that have caused the public to lose respect for us. Educating the public about matters that have been troublesome for lawyers for decades is not likely to make much of a dent in the public’s antipathy toward the profession that has developed in the past twenty years. What we need to do is determine why the public has lost so much respect for us in this relatively short period of time, and address those specific problems with all the energy and resources we can muster.
We have not done that, and the reason we haven’t is simple: it is not an easy or popular thing to do. A substantial majority of the lawyers in this country are hardworking, ethical, and competent. But we are "hunkered down" as a result of the criticism leveled at the profession by the public and the media. Bar leaders sense that their members want us to defend the profession and fend off criticism with that most convenient of all defenses: "The public just doesn’t understand lawyers and the complex nature of what we do." Because most Bar leaders come to office for just a short period of time, we have given what our members want instead of what they need. The time has come for that to change.
Happily or unhappily, we have reached the point in our professional history when it may be easier to deal with tough reform than it would have been just a few years before. Futurists are predicting that lawyers in certain areas of practice may be out of business in the not-too-distant future. Our members have seen our brothers and sisters in the medical profession lose their right to control their practices in just a single decade. Insurance defense lawyers have had more than a taste of what is coming for the rest of us if we cannot persuade the public that the services our profession renders are best selected, delivered, and controlled by lawyers under our present system of self-regulation.
The current concerns with multi-disciplinary and ancillary business practices are the symptoms of what ails us, not the cause. The causes are (1) the public’s belief that too many lawyers have become more concerned about money than they are about their clients and/or the justice system they serve, and (2) the public’s belief that too many lawyers are not sufficiently concerned about the truth and are willing to bend or break the rules to gain advantage, with little fear that the system or our self-regulating profession will sanction them for it.
Why Do We Have This Problem?
Some will say that I am being unduly negative and simply engaging in internal "lawyer-bashing." However, I think this approach to our problems is both positive and optimistic. I like and admire lawyers and believe that most are honest and quite scrupulous about observing what they believe is expected of them under the system’s ethical standards. Yet, it is doubtful that the legal profession’s poor reputation for honesty and ethical standards could be so persistent without some genuine foundation in lawyers’ norms or behavior. The possibility must at least be considered that there is something about the ethical standards themselves that leads lawyers to act in ways the public finds repugnant.
Let me give you an example of what I am writing about. In the summer of last year, an article appeared in the Professional Lawyer5 authored by John A. Humbach, a Professor of Law at Pace University School of Law. It is Professor Humbach’s hypothesis that the public’s view of lawyers is tied directly to negative reactions people have to two related advocacy norms that seem rooted in provisions of the Model Rules of Professional Conduct. These norms, he asserts, are typically expressed in two particular practices of lawyers: (1) pretending to disagree in the hope that, by not "conceding" a point, the lawyer might get the client an added chance to avoid a legally prescribed liability, sanction, dismissal, or other undesired outcome; and (2) fostering misunderstandings by selectively invoking confidentiality to hide material parts of the truth while vigorously (and misleadingly) asserting others.6
The first of these practices, which Humbach called "fabricating controversy," is sometimes described more charitably as endeavoring "to use legal procedure for the fullest benefit of the client’s cause."7 The second, which he called "partial-truth advocacy," emerges from a joint reading of the Model Rules on confidentiality and on diligence.8 Both of these practices, he asserts, are likely to be stoutly defended by many in the Bar, perhaps even as crucial aspects of the adversarial system. At the same time, however, neither of these practices would likely be recognized as fully "honest" or "ethical" as those conceptions are generally understood in an ordinary, non-lawyer context. Nevertheless, as long as pretended disputations are not frivolous or dilatory, many lawyers see nothing wrong with such plays on the system’s fact-finding imperfections, nor do they see anything wrong with trying to get their clients more than they legally deserve, for example, by avoiding the prescribed consequences for wrongs they have committed.
Both of these techniques—fabrication of controversy and partial-truth advocacy—tend to undercut the trial as a "search for truth" and interfere with negotiations as a search for fairness in transactions. Nevertheless, diligent advocates resort to such techniques when factual truth would ill-serve the clients’ interest at trial, and diligent negotiators do the same when truthful disclosure would likely prevent a client from getting a deal that the other party would make only if deluded. Worst of all, both of these lawyering techniques detract from the legal system’s ability to achieve the "gold standard" of justice and the rule of law, i.e., the substance of law applied to the events that actually have occurred. The very fact that many lawyers see things this way is part of the reason for the public’s negative perception of the profession.
What Can We Do About It?
To this point, the conventional and preferred approach to the problem with the public’s image of lawyers have been through "public education"—attempts to dissuade the public of "misconceptions" about lawyers and the system, and efforts to persuade, by providing information regarding lawyers’ pro bono and community service, that the public’s negative perception of lawyers is unfair. Unfortunately, although such programs have been under way for some time, they do not appear to have had the desired effect. That has led a growing number of Bar leaders across the country to believe that the public understands lawyers and the system better than we may want to admit and will respond positively only if the profession takes a more direct approach to the problem.
Such a direct approach was set forth last year in an agenda for professional reform by the National Conference of Bar Presidents ("NCBP"). It states that we must (1) identify what there is about the way lawyers conduct themselves that has caused the public’s lack of respect, (2) determine what reforms and solutions may restore that respect; and (3) formulate a long-term plan to implement appropriate reforms that recognize the short-term tenure of most Bar leaders. Toward that end, the NCBP is currently in the process, termed the Professional Reform Initiative, of putting together a group to include representatives from law schools, the judiciary, Bar leaders, and the public. This group will be charged with the responsibility 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.
I think we should give serious consideration to adopting the Professional Reform Initiative in Colorado. Therefore, I will make it my first priority to appoint a Professional Reform Task Force in our state to evaluate the merits of the Professional Reform Initiative. Thereafter, the Task Force will report its findings to our members. The Task Force will be composed of constituent groups from the judiciary, our two law schools, the civil and criminal trial bars, transactional lawyers, women and minority practitioners, and members of the public. I am proud to announce that Dale Harris, our outgoing President, has agreed to chair this Task Force. Anyone interested in joining the Task Force may contact CBA Executive Director Chuck Turner at (303) 824-5314 or email@example.com.
The CBA as a professional organization is dedicated to improving the professionalism of its members. I hope that a CBA Professional Reform Initiative will help achieve that.
1. See Harris, "Do Lawyers Lie," 29 The Colorado Lawyer 19 (Sept. 2000).
2. A Survey of Attitudes Nationwide Toward Lawyers and the Legal System (Peter D. Hart Research Associates, Inc., 1994), for the American Bar Association.
3. "Perceptions of the U.S. Justice System" (American Bar Association, Feb. 1999).
4. Colorado Bar Association Long-Range Planning Survey of Members, Spring 2001.
5. Humbach, "Abuse of Confidentiality and Fabricated Controversy: Two Proposals," 11 The Professional Lawyer 4 (Summer 2000), published by the American Bar Association’s Center for Professional Responsibility.
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