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TCL > March 2013 Issue > Thanks for Letting Me Hang at Your Bar—What You Taught Me

March 2013       Vol. 42, No. 3       Page  5
In and Around the Bar
CBA President's Message to Members

Thanks for Letting Me Hang at Your Bar—What You Taught Me
by Mark A. Fogg



About eight of us gathered around the table at Wallbanger’s restaurant on Highway 50 in Salida. It was September 6, and I was making my local bar association visit to the Heart of the Rockies Bar Association with CBA Deputy Executive Director Greg Martin. We had a table tucked off to the side and, by a split vote (kidding), we turned off the big screen TV hockey game because we thought the body slams may be inconsistent with my CLE talk, which included the topic of professionalism. Of course, the practice sometimes feels like body slams are legal.

All of my visits to the local bar associations were great. I have now visited twenty-five of the twenty-seven local bars, with Denver and Larimer left to go. I have a special memory of my visit to Salida. The newest lawyer in town was there. So was the local bar president, Pete Cordova. When our discussion got around to professionalism and mentoring, the new lawyer listed all the things that Pete did to make her feel welcome in the legal community and to support her, including introducing her to local lawyers and judges and helping her with practice start-up issues. The admiration for Pete was apparent in her eyes. It confirmed my long-held belief that when we leave this legal practice one way or another, close colleagues and clients will tell stories about the type of person and lawyer we were, but those we mentor—those on whom we impress the true honor of being a lawyer—will be the ones to best tell stories of the richness of our professional lives.

In this article, I want to give you my perspective on the discussions I’ve had with more than a thousand lawyers around the state about the status of our profession. I was told many times that the issues that confront Denver lawyers are markedly different from what Western Slope lawyers, for example, have to contend with. There is some truth to this, but there is no question in my mind that the values that bind us overwhelmingly outweigh any small differences. These are the main things I learned from you.

Honor and Trust—The Ties That Bind Us

The economy has hit many lawyers hard, and trying to make a living is a front and center issue for many of us. However, if I were to articulate an almost universal need of lawyers from my discussions, it is the hunger for honor as reflected by trust. All individuals desire it in some form or another, but it is especially important to professionals. Trust is the bedrock of all professional relationships. I would suggest that trust, with all that it entails, is our greatest dignity.

The science and mechanical professions require trust unique to their specialties. In law, we use vague concepts such as "justice" and the "Rule of Law." Clients have to trust that we know how to obtain justice. The public has to trust that our legal system will fairly, without prejudice, administer justice. Lawyers have a keen sense that, unlike other professions, the degree of erosion of the public trust in the legal profession is substantial.

During my local bar association visits, many of my talks and subsequent interactive discussions were on the great honor it is to be an attorney in what I believe is the best legal system the world has ever known. We have our problems, but it is a fact that 90-plus percent of the world lives without a meaningful Rule of Law. I used everyday examples in my talks to reflect the substantial impact we have on other people’s lives regardless of what areas of law we practice. Scores of attorneys approached me following these meetings to share with me how important it is to them to re-instill the sense of honor in practicing law.

Much of this erosion of trust is our fault. Many of us stopped trusting each other. Many of us stopped trusting that there is a system that is greater than ourselves and our individual cases. It is extremely important that we act as good advocates for our clients, but many of us seem to have lost the perspective that being a good advocate necessarily includes our ability to grasp the whole and that it is important that the Rule of Law apply. Many of us have no idea how to resolve this huge system-wide problem of lack of trust; many of us aren’t even sure whether it is within our ability to resolve.

I believe it is. The Roman emperor and philosopher Marcus Aurelius said: "The soul becomes dyed with the color of its thoughts." In other words, the color of our thoughts becomes the color of our souls—or ourselves. If we consciously make greater efforts to trust other lawyers and strive to have greater faith in our legal system in each of our interactions, we can break this cycle.

Our assumption should be that we are interacting with an attorney of honor. I am not naïve. I lived in the trenches. I understand that attorneys can obtain our distrust. However, I personally have witnessed on many occasions that the first position is one of distrust. This core value of trust must be upheld by us and passed on to new lawyers by the nature of who we are, or we are lost as a profession. To paraphrase one of my favorite quotes attributed to St. Francis of Assisi: At all times teach the importance of trust to others; when necessary, use words.

Then, of course, there is also that famous band of philosophers, Steppenwolf, who sang: "It’s never too late to start all over again." We each can help fix this.

Digitization—The Great Divide

A problem for lawyers throughout the state is how to handle information overload and virtual contacts. All of our meetings contained animated discussions about how e-mails and social media are questionably separating us instead of bringing us closer together. There was an especially energetic discussion at the San Luis Valley Bar Association in August. The meeting was at a beautifully restored hotel in Del Norte. The local bar association set up everything on the patio out back and it was a magical, candle-lit atmosphere. There was a good turnout of about forty lawyers and judges. Halfway through our interactive discussion, an older lawyer raised a complaint about the constant use of electronic contact between lawyers and minimal personal interaction. There was a group of four young public defenders who steadfastly supported the virtues of electronic contact both for efficiency and documentation. The debate got lively enough that I interjected (to calm things down a bit) how great it is that we were engaged in such an important, robust dialogue. At the end of the meeting, the older lawyer jokingly proclaimed that he had just gotten a text from one of the public defenders that included a happy face.

Access to Justice—A Multitude of Approaches

At our CBA strategic planning conference, it became clear that access to justice projects need to be the bar’s top priority. Approximately a year ago, I started to educate myself as much as I could about the current state of affairs regarding the availability of legal services to the indigent or modest means populations. I was struck early on by the many ways in which local jurisdictions address these issues.

Legal Services

The virtues of statewide legal services are extolled by many, but such services are limited by cuts in funding. In some jurisdictions, local legal services organizations are still going strong. However, due to budget constraints and logistics, there are many areas where needs just are not being met, and there is no clear solution in sight. Regardless of whether the Colorado Legal Services organization or another local legal services organization is providing the framework to try to meet local needs, the culture of the local bar association to encourage pro bono work and, more important, the existence of a champion(s) of pro bono work in the local bar association are key factors. My volunteer activities pale in comparison to those of numerous attorneys I met around this state, who devote a substantial amount of their time and resources to providing legal aid services to the indigent.

Modest Means Programs

Several jurisdictions have developed modest means programs for those individuals who do not qualify for indigent programs. (The current level for qualification is 125% of the poverty level, which is $28,813 for a family of four). In some jurisdictions, the bar association has created lists of attorneys who will provide reduced-rate services. In others, local courts or the local legal services organizations keep such lists. Whether such lists should be kept or who should keep them is a matter of debate among attorneys in the state.

Unbundled Legal Services

Also under significant discussion is the provision of unbundled legal services to clients. This means that an attorney can provide specific consultation for one aspect of a case or make a limited appearance—for example, at only one hearing. As a way of addressing our current condition, where approximately 70 percent of the population cannot afford the legal system, our Supreme Court has consistently supported such an approach. Judges throughout the state I spoke with agreed that having some attorney involvement in a case is far superior to there being no attorney involvement for both the client and the court.

Use of this tool is inconsistent by attorneys throughout the state. It is primarily used by domestic relations attorneys, although lawyers in several fields of practice have used it. In some jurisdictions where I had groups of thirty to forty lawyers, almost half had provided such services. In other jurisdictions with groups of the same size, maybe two or three lawyers used this tool, with many not even knowing what it is.

Attorneys are open to learning more about unbundled legal services and integrating the method into their practice. Again, lists of who will provide such services are maintained in different ways in different jurisdictions.

Pro Se Self-Help Centers

An additional strategy is the pro se self-help center. There are several centers being set up across the state as a result of the recent funding by the Colorado Legislature. Many jurisdictions, such as the Seventeenth Judicial District (17th J.D.), started a self-help center well before the recent legislation. The 17th J.D. is now a leader in establishing pathways of additional services, such as public assistance with their library program, in the development of these new pro se centers. Meanwhile, attorneys in other jurisdictions are still trying to figure out how the development of the self-help centers will affect their practice.

Justice is Accessible

The key theme I picked up on in my visits around the state is that there are several strategies to practically and philosophically approach access to justice problems. There is some overlap in method, as well as inconsistency in implementation. I believe that some of these strategies, such as the pro se help centers, have come about partly because the practicing bar has not found a way to cost-effectively provide legal services to this large percentage of the population who cannot afford the system. We need to come up with professional solutions to this quandary and support those pro se centers in ways that allow our lawyers to continue to make a living.

Incivility is a Problem for Us All

Incivility between attorneys plagues us all. I do believe Colorado has one of the most collegial bars in the country, but we can do better. The Denver metro area still seems to have the most problems. However, jurisdictions outside the metro area are experiencing an uptick of incivility for a variety of reasons, including changing demographics and an influx of out-of-state lawyers who have not assimilated into the bar. Another problem is that many lawyers outside the metro area perceive that they are looked down on and treated unprofessionally by Denver lawyers. I assure you that Denver holds no monopoly on brilliant legal talent in this state. I also strongly believe that 90-plus percent of all interactions between attorneys perceived as uncivil are the product of assuming the worst about the other lawyer’s motivations and the incident exploding from there. However, another reality is that there is a percentage of lawyers who have just learned to be bullies or are passive-aggressive, and are reactively stuck per Pavlov’s theory. They will never be great lawyers.

I am going to get a little "high-horsey" here. Frankly, we as a bar and a legal system need to ostracize the bullies regardless of which type of party they represent. Over the years, I have heard lawyers tell others "you are the worst lawyer ever," and called them "greedy," "heartless," and "unethical," and proceeded to make other personal attacks on the lawyers, their mothers, and their dogs. I have seen lawyers threaten to "take it outside." Rather than advocate professionally, lawyers oftentimes demonize the other side.

Several years ago, I had a case with an out-of-state lawyer who recently had established a second practice in Colorado. We set up an initial telephone call to discuss the case, issues, and scheduling. We did it by phone because he was out of state. Within minutes, I was being charged with "churning a file" and having "no regard for human life" by a lawyer I had never previously met or even talked to. At the end of the conversation, my associate, who had been present during the call, agreed when I said I needed to take a shower.

The case proceeded and my interactions with the other lawyer did not get any better. However, there was a young associate who was working with the lawyer whom I quickly came to admire as having potential to be a great lawyer. I had great concern for the young lawyer, given the poor role model, and candidly stated the same on one occasion. Perhaps you disagree with me for doing so. However, at a local bar association meeting this past year, the young lawyer approached me and told me that after our conversation, the lawyer left the firm and established a satisfying, successful practice. The lawyer wanted to thank me for the concern I had expressed and advise me of the impact it had.

Thanks for the Hospitality

Many thanks to all of you who welcomed me. Some meetings were up to eighty or ninety folks, while others comprised seven or eight of us having dinner together and discussing the issues in our profession. I cherish those discussions. I had the privilege of handing out many fifty-year practice pins, and I made a point of learning about each lawyer’s career before doing so. My travels once again confirmed my love for this beautiful state.

I also want to thank Deputy Executive Director Greg Martin and Assistant Executive Director Dana Collier Smith, who, along with Chuck Turner, accompanied me on several trips. Greg and I (maybe to his chagrin) can talk nonstop for hours. He is one of the most down-to-earth people I know. His background is fascinating, having grown up in Nebraska and having a PhD in Animal Husbandry and Genetics.

Dana, like the others, has a strong devotion to our members. She consistently works very hard on many, many programs. One Dana story. During a Western Slope visit, we had some down time, so Dana and I visited the Black Canyon National Park. We walked out to several viewing points. Dana was wearing a dress and three- or four-inch stiletto heels. Whenever we came upon groups, I would just whisper, "New York."

On a final note, a couple of weeks ago, I received a warm welcome in Boulder at an Italian restaurant orchestrated by the Boulder County Bar’s great Executive Director Christine Hylbert. I had previously committed to give an hour-long teleconference lecture at 1 p.m., and we had planned for me to go to the association’s offices to use a land line. Time got crunched and I got worried, so I asked the manager if I could use a restaurant land line to give the lecture. He readily agreed and led me through the Byzantine kitchen to a back desk near an employee who was cutting meat. In the first few minutes of my lecture, somebody asked what the whirring noise was. I told them it was the guy cutting pepperoni.

Thanks, also, for the memories.

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