Alert: Civility Monitors Recommended
by Craig Eley
New rule would have retired attorneys evaluate legal profession.
The Joint Bar/Bench Task Force on Professionalism and Civility has put the final touches on its long-awaited report, which among other things, proposes a plan to evaluate the level of legal professionalism in Colorado.
The task force was appointed six years ago, and consists of bar members and court personnel who were, at the time, the immediate five past presidents and vice-presidents of the association and some retired judicial officers. The charge of the task force was to determine the state of professionalism and civility within the legal community.
The task force consulted practitioners, judges, educators, sociologists, psychologists, court reporters, court clerks, and a number of others during its research, and has met twice a month since its creation. It concluded that since the only data available was anecdotal, a clear picture of the level of professionalism cannot be obtained. Therefore, it devised a plan for measuring legal professionalism not only state-wide, but on a firm-by-firm and even lawyer-by-lawyer basis.
Under the plan, senior and retired lawyers and judges will be recruited to survey the civility of attorneys as they go about their daily routines. Called "professionalism observers" ("POs"), they will be assigned to courtrooms to observe attorneys presenting motions and conducting trials. The POs will be as unobtrusive as possible, usually sitting in the spectator section of the courtroom. A checklist has been devised for the POs to use, and each PO will complete a checklist for every attorney and judge participating in the proceedings. It is anticipated that in the litigation setting, three POs will be assigned to a courtroom, and the results concerning any particular lawyer averaged to eliminate any bias from the survey.
Beside courtroom activities, depositions will also be observed, but because of room-size considerations, only one or two POs will normally be assigned. Similarly, mediation and arbitration sessions will be subject to observation.
For non-litigation attorneys, POs will make on-site visits to law firms and be present at client meetings, negotiating sessions, closings, and meetings with associates, law clerks, and paralegals. Procedures have also been devised for observing house counsel, attorneys employed by the government, and even those serving in the legislature or as lobbyists.
All PO assignments will be made by random selection. To obtain the data for this, attorneys, mediation services, courts, and others will either e-mail or fax their calendars and schedules to the project administrator one month at a time. A computer will then randomly choose which client appointments, depositions, trials or mediations, etc. will be observed. The task force has not yet decided whether POs will give advance notice of their attendance, or simply show up.
To begin, because of anticipated staffing shortfalls, only a small percentage of attorney activities will be surveyed. The task force is aiming at covering three percent of trials, hearings, mediations, arbitrations and depositions. As to on-site visits, from a statistical standpoint, any given law firm can expect a visit from POs no more than two times a year (naturally, the larger the firm, the more likely that it will be the beneficiary of a visit).
The task force is not oblivious to privacy and attorney-client privilege issues, which have been raised by those critical of the task force’s work, and it has devised a way around them (the issues, not the critics). The Colorado Supreme Court will be asked to institute a rule under which it will be implied that every attorney and judge who renews his or her registration consents to: 1) making his or her schedule available upon request (this includes those running mediation services); 2) being required to include in all client fee agreements and engagements letters the consent of the client, to allowing POs to observe any attorney-client interactions; and 3) the waiver of privacy for law firm activities, meetings and deliberations.
The implied consent aspect of the task force’s proposal cannot take effect until all Colorado attorneys register again, and it will take a year to cycle through the registration process. Therefore, the first observation is not scheduled to take place until April 1, 2003.
The cost of administering the PO process will be substantial, and is expected to grow as the program expands. POs will not be expected to serve without compensation, and staff will have to be hired to make the observation assignments, collect the resulting data, and issue "report cards" on individual lawyers, judges and firms. Despite these factors, it is expected that no more than $150 will be added, at least initially, to the yearly attorney registration fee.
The chair of the task force, who prefers to remain anonymous, at least for now, stated that "While there will be a number of attorneys and judges who will feel threatened by this process, the results will greatly increase the level of civility with which law is practiced in Colorado, and I am confident that our idea will eventually be adopted by every state in the Union."
The full report of the task force, consisting of 128 pages of research, findings, conclusions and the details of the plan itself, is on the CBA Web page at www.cobar.org/be/nice.