Certification of Trial -A Judicial Effort To Restructure the American Legal Profession?* Harry Cohen** Introduction Although lawyers have been the object of much endemic and maybe ineradicable disparagement in the past,' there are particular criticisms more in style from time to time. Today, the specific areas of condemnation are twofold. On the one hand, a few powerful and vocal members of the federal judiciary have taken the view that many lawyers are not competent, especially in the area of trial advo- cacy. These critics have urged a certification system for courtroom . At the same time, it has become the custom among some academics to brand lawyers and the profession as "elitist," and to suggest strong lay regulation. The certification issue has gained some measure of notoriety, probably because the source of the suggestion is a powerful, en- trenched minority, but the "elitism" argument has been either brushed off as the rantings of a few academics or merely snubbed. Nevertheless, both charges are significant and it behooves us to investigate and analyze not only what is being charged but also to weigh the consequences of any meaningful action which may be forthcoming.

Legal Competence and Structuring the Profession-The English Comparison For the past few years we have heard and read of Chief Justice Burger's criticism of lawyers. Recently he has even taken his views

* A similar article has or will appear in the Hofstra Law Review and I thank the editors for allowing me to utilize my original efforts in this article. ** Professor of Law, University of Alabama. B.A., J.D., Tulane University. 1. The best recent statement about the probable inherent nature of unpopu- larity and criticism of lawyers is found in Manning, If Lawyers Were Angels: A Sermon in One Canon, 60 A.B.A.J. 821 (1974). As Dean Manning put it, people do not want to hear the bad news lawyers often must transmit. Lawyers interpret the law which makes demands on people who do not wish to abide by it. To a large segment of the population, the adversary system is a process of competitive lying and the legal profession is an intricate part of it. If we then add the constant, usually critical press and media coverage of the legal profession, lawyers are contin- ually placed in a defensive and delicate position. 28 The Journal of the Legal Profession to England where he told the Royal Commission on Legal Services that probably around fifty percent of all America's practicing law- yers are not adequately qualified to represent their client^.^ Some time ago, he threatened dire consequences for the profession if st.r- ner disciplinary processes and measures were not acc~mplished.~ Thereafter, he called for a rooting out of incompetence in the trial courts by allowing only certified advocates to try cases.4 Following his lead, lower federal have become bolder in their declara- tions about the profe~sion.~ Irving R. Kaufman, for example, (who should know something about those who are criticized when carrying out a diffi- cult task, and who has been the recipient of sympathetic aid)6has taken the competency issue from the Chief Justice and has vigorously espoused it.' He has tossed the incompetency charge around without much particularized or researched basis, as was

2. N.Y. Times, Dec. 1, 1977, at 27. 3; Chief Justice Burger's criticisms are categorized and discussed in Cohen, Lawyer Certification, Civility, "Good Moral Character, " and Pressures for Conformity, 1 J. LEGALPROF. 59, 60 (1976). 4. Burger, The Special Skills of Advocacy, 42 FORDHAML. REV. 227, 238-39 (1973). 5. Soon after Chief Justice Burger's barrage, it was reported that a number of lower court federal judges felt similarly, but it is interesting to note that these judges also complain that the lawyers leave too much work for the judges. The judges complained about many things, for example, that many lawyers do not know how to evaluate a case, turning down settlements, while getting nothing from a jury. Wall St. J., Feb. 24, 1975, at 1 and 21. The New York Times has reported that many successful trial lawyers agreed with these judges. N.Y. Times, Mar. 11, 1975, at 16. The latter quoted former federal judge and experienced tiral lawyer Simon H. Rifkind as saying no law school can teach such skills as an "appetite for work, endurance, an elephantine memory, instant recall, uncanny perception of behaviour, the gift of tongue, commanding presence and good voice." N.Y. Times, Sept. 12, 1975, at 54. 6. Judge Kaufman was, of course, the trial judge in the Rosenberg case. He has been criticized for his conduct in that case because he is alleged to have had private communications involving the case which may have influenced his judicial conduct. His critics charge that he breached a canon of judicial ethics which is now Canon 3(A)(4) of the Code of Judicial Conduct. A group of lawyers have defended the Judge, and former Federal Judge Simon Rifkind was appointed chairman of an A.B.A. committee to "counteract unwarranted criticism" of Judge Kaufman. N.Y. Times, June 11, 1976, at A20. 7. Kaufman, The Court Needs a Friend in Court, 60 A.B.A.J. 175 (1974). Judge Kaufman appointed a committee to come up with qualifications for lawyers seeking to practice in the Second Circuit and has given speeches on the subject. N.Y. Times, Mar. 11, 1975, at 16. Certification of Trial Lawyers 29 demonstrated when one respected New York federal district court judge described "the quality of representation in my court to be generally high."R All of this suggests a feeling that some federal judges may be thinking of adopting something similar to the English approach to structuring the legal profession, where trial advocates are certified and only those lawyers appear in courts. Chief Justice Burger seemed to suggest this notion when presenting his views on the subject of incompetence in our trial court^.^ What is not generally known or is usually sloughed off are the great disadvantages in the English system. Long ago the English set apart a small minority of the legal profession called the whose members are known as . Barristers practice only as solo practictioners and may not enter direct lawyer-client relationships without being retained by a solici- tor, the lawyer who daily deals with the public and who is normally not a trial . may not appear as an advocate in the higher trial courts or in the appellate courts. Such right is reserved for barristers who must be members of one of the ancient . Barristers are the only lawyers who may become judges in the higher courts, and even then, they continue as members of the Inns of Court so that the barristers and the Judges remain unified. The barristers are the most powerful segment of the English legal profes- sion, and their brother-colleagues, the Judges, bolster this power.I0 The solicitors hire barristers for their clients both for briefing on law and for litigation. The result is the necessity that a client hire two lawyers.

8. Judge Jack Weinstein, U.S. District Judge in New York, as well as others, have probably felt that many of these charges are highly exaggerated. Wall St. J., Feb. 24, 1975, at 1. 9. The Chief Justice has been enamored with the English barristers system for years. In his speeches he talks of the high quality, Burger, supra note 4, at 229, and of the tight regulation and discipline of the Inns of Court, Burger, The Necess- ity for Civility, 52 F.R.D. 211, 215 (1971). See note 14 infra. 10. Within the bar, status and conduct is controlled by a small group at the top, especially the Lord Chancellor, and selection to the rank of Queen's Counsel silk"), and thus to the Judiciary are often based on subjective rather than objective standards. It comes as no surprise, therefore, that the English bar is homogeneous and conform- ist, with a "lack of inclination to criticize either fellow lawyers or legal institutions." In addition, the English barristers do not follow many of their own highly praised ethical precepts. Cohen, supra note 3, at 72-73. 30 The Journal of the Legal Profession

The English call theirs a divided profession and in fact it surely is. In this context the American system is fused, because the Ameri- can lawyers act as a unit for their clients. Only one fee need be paid and communication between the client and lawyer is direct. The American lawyer (unlike a ) can interview and counsel his client alone and nothing is lost in the transmission from lawyer to client. The English not only utilizes the barrister in the litigation, he often pays a fee for the barrister's legal opinion be- cause the divided system causes deep insecurity on the part of the solicitor concerning his own legal acumen." Alongside the American fused system, not the least of the many disadvantages of the English system, is the waste caused by the division of the lawyer's functions. Often barristers in England have been underemployed, and some find that they may be better suited for a solicitor's office practice than litigation. Similarly, solicitors discover that they are really better suited for advocacy or specializa- tion in a certain branch of the law or legal subject. It has also been found that one branch can be overemployed on some occasions while the other is underempl~yed.'~Yet movement from one branch to another is difficult. In contrast, the American al- lows lawyers to be utilized to the fullest extent necessary for client needs. If a lawyer finds that he has tired of doing trial work, there is nothing to stop him from doing only office work of any kind. There are absolutely no barriers to lawyers participating in any kind of legal service.

11. It is sometimes argued that the English people always have a relatively small, compact, competent group of legal specialists from which to choose, while the lack of formal division in the American system creates great difficulties when a legal specialist is necessary. The American legal profession has never been for- mally divided in any fashion between advocates and nonadvocates or between various specialized practices. At the same time, voluntary specialization, in many areas, even separation of advocates and nonadvocates, has been carried out to some extent for generations. Beginning with the emergence of the large New York law firms in the 1880's law firms have compartmentalized their lawyers into specialty areas, even to the point of delineating trial advocates from appellate advocates. Also, a great deal of referral work goes on wherein one lawyer will associate another who is considered to be an authentic specialist in a field of law, such as taxation, antitrust, labor law, oil and gas law, etc. It has been suggested that there is not enough referral work in the United States while solicitors in England tend to over refer to barristers. See A. JOHNSTONE& D. HOPSON,LAWYERS AND THEIRWORK 547 (1967). 12. Id. at 393. Certification of Trial Lawyers 3 1 There is an even more important but less obvious advantage to the American system. This involves the amorphous concepts of sta- tus and prestige. Although it would be greatly overstating the case to say that everyone today agrees that barristers are more presti- gious in England than solicitors, there is little doubt that a poll of the English people would substantiate that result. It is even argued that the status of barristers as a group vis-a-vis solicitors is justified because barristers' activities involve a greater "skill and responsi- bilit~."'~It is impossible to argue such a thing in the American legal profession. That is not to say that some few lawyers, and groups of lawyers, have not enjoyed greater prestige than others, but the fact is not governmentally institutionalized. The important point here is that a lawyer is not given instant prestige over other lawyers for the rest of his life merely because he has been called to the Bar as is the case in England. Because of this formal legal distinction be- tween barristers and solicitors, a somewhat artificial barrier is placed between the two branches of the English profession. This lowering of one group of lawyers comes in spite of the fact that the solicitor's legal education is more demanding than that of the Bar's and in spite of the fact that there is no evidence that barristers are more intelligent or capable than are solicitors. What the Chief Justice and his judicial colleagues would bring to the United States is a kind of legal caste system, what some today would call an "elite" corps of lawyers. Through the power of the State, our trial courts would be open only to a chosen few. The analogy with the English system is obvious. The American federal judges are appointed to office for life in much the same quasi- political fashion as the English judges. Some of them may now wish to create a system whereby the only trial advocates who could ap- pear before them would be those who are certified by the judges themselves. By demanding this monopoly, the next step would be the appointment of federal judges from this group of certified spe- cialists. It is significant to note that the entire basis for the Chief Jus- tice's suggestions concerning certification is, at the least, probably on infirm grounds. As was stated in an earlier article on another aspect of this problem: The British model set for the American legal profession is re- plete with contrived and exaggerated myths, even though many

13. Id. at 394. The Journal of the Legal Profession

English trial and appellate barristers are extremely fine lawyers. They are, on the whole, however, no better or worse than a similar type group of American lawyers. In fact barristers may be uniformly less competent in representing their clients than their American counterparts. They indulge in what could be called a great deal of "nonethics." Their so-called expeditious- ness in the trial of cases probably is a result of what has been called being "easy-going with each other." This may mean that the counsel who is concerned mostly with manners and offend- ing his opponent and the judge is not paying enough attention to his client's interests. By taking the concept of "officer of the court" to an extreme, it is quite probable that the society and the judicial system suffer.I4

14. Cohen, supra note 3, at 73-74. When discussing the problems of quality and discipline of the barristers the Chief Justice talks about his own experience and gives no other views. I have heard it said occasionally by critics of the English legal system that ittends to be "clubby" and "establishment-~riented."~For twenty years, I have watched advocates conduct trials in more than a dozen countries, and nowhere have I seen more ardent, or effective advocacy than in the courts of England. English advocacy is generally on a par with that of our best lawyers. Burger, supra note 4, at 229. In footnote 5 of the article, the Chief Justice said that the concern existed when solicitors could not transfer to the barriesters profession but now "this has dissipated since transfer from solicitor to barrister was made possible." Id. What the Chief Justice has not done is to interview and examine many others who have thought about doing this and who have done so and then define the extensive problems inherent in the system. One solicitor-law teacher has examined the problems and finds them to be vast and complex. See M. ZANDER, LAWYERSAND THE PUBLICINTEREST 56-58 (1968). Zander observes, The difficulties of transfer are, in fact, considerable. Barristers wishing to become solicitors first have to become disbarred from their Inn of Court and then to undergo a two year period as articled clerks unless they have been in practice as barristers for five years . . . . Barristers who have been in practice for more than five years . . . are only re- quired to pass the Part I1 Examination. For the barrister, therefore, the obstacles are undergoing indignity of translating oneself into a lowly articled clerk andlor passing an examination. Although the examina- tion can be taken in sections, it is a formidable undertaking and the failure rate is high. The solicitor or solicitor's articled clerk wishing to become a barris- ter faces obstacles that are even more severe. The first problem is created by the fact that to become a barrister one must join an Inn and that no solicitor or solicotor's articled clerk can become a student mem- ber . . . if qualified for less than five years. [The solicitor] is therefore effectively deprived of the possibility of earning as a lawyer on either Certification of Trial Lawyers

Elitism, Unequal Justice, and Lawyer Stereotypes At one time a relatively small but powerful segment of the legal profession drew a distinction between "true professionals" and "tradesmen" among lawyersI5 and tried to seclude themselves from what they thought to be a lower caste of lawyers. In keeping with this philosophy, this group sought to stifle admissi~n'~to the Bar as well as try to exact harsh penalties" against those lawyers who had not sprung from the correct social levels of American society. In spite of this history, the American legal profession has been slowly democratized and, at least since the 1930's, there has been a steady movement of socially and economically disadvantaged persons into positions of responsibility and economic well being.18 But because of these early manifestations of sociological stratification of the pro- fession, present day critics continue to charge elitism in the entire profession. Exactly what this elitism concept encompasses is not entirely clear but it is increasingly utilized whenever one wants to refer to successful persons or groups, access to opportunity of any kind, or to an individual or group which either controls or wishes to control

side of the profession for at least two and usually two and a half years. Either before or after Call . . . he must do his full stint of a year as a pupil . . . [If qualified for more than five years] he has to sever all connection with his firm and then give six months notice (not including August or September) of his intention to seek Call to the Bar during which again he cannot work on either side of the profession. He must also take the Bar Examinations . . . . In light of these restrictive rules it is not surprising that transfer to the other side of the profession is rare . . . . Id. 15. A. REED,TRAINING FOR THE PUBLICPROFESSION OF THE LAW226-27 (1921). See J. AUERBACH,UNEQUAL JUSTICE 110-13 (1976). 16. J. AUERBACH,supra note 15, at 106, 116, 127, For an example of an admis- sion system which was totally lacking in due process requirements, see Douglas, The Pennsylvania System Governing Admission to the Bar, 54 A.B.A. Rep. 701 (1929). 17. J. AUERBACH,supra note 15, at 49-53, 125. 18. J. AUERBACH,supra note 15, at 5, 106-07, 118. Professor Auerbach's fine research assures its accuracy. Every movement to cancel easy access to the bar was defeated whatever the motivation behind the defender of relatively liberal admis- sion policies. His discussion of the New Deal demonstrates that before the end of the Depression era the legal profession included all types of people, even in lucra- tive law offices. Id. at 224. The Journal of the Legal Profession decision making processe~.'~It becomes readily apparent that the suggestions for creating a specialized corps of trial lawyers in this

19. It is quite fashionable today for many critics of the institutions of the Western World to use the word elite or elitist. Recently it was reported that the French and Italian universities were again confronting student unrest. At Grenoble University it was pointed out that the 1968 student revolt tried to break down the "traditional elitism in education that favored a relatively small student class . . . ." but that the filling of the schools and the subsequent labor market with more graduates than they could hold was more than the country could take. A University of Bologna professor commented that the university is "perhaps more elitist now than before" because the open doors do not automatically let most of the students take advantage of their opportunity. Most students are abandoned to themselves because their "backgrounds" have not given them the motivation nec- essary for success. N.Y.Times, May 6, 1976, at 18. The profession seems to be saying that anyone who has motivation and the ability to succeed is part of an elitist class. There are, superficially, at least four kinds of situations wherein the elitism concept could be utilized. There is institutional seniority, wherein one who has been in rank or grade for a longer time period is granted a status for some purposes over others who may in fact be more meritorious. An elitism described as a natural order results from the fact that some persons are born with an ability or talent which catapults them beyond others and with no more work or education. Often entertainers or sports figures are found in this category. Another kind of elitism is that which is, at least theoretically, based solely on one's accomplishments which involves talent, ability and strident work habits. Finally, there is inherited elitism which, even in an egalitarian oriented society, becomes a very subtle problem. Children can gain from their parents (1) biological traits, (2) a comfortable, intelli- gent and stimulating environment, and (3) wealth of various kinds. Even thorough going egalitarians argue that egalitarianism breaks down with the second genera- tion gaining any of the above and especially parental guidance. Quinton, Elitism-A British View, 45 AMER. SCHOLAR719, 724 (1975-76). It can thus be noted that even an egalitarian oriented culture is bound to be confronted with various kinds of elite types and groups. Id. at 725. Certain people will inevitably move toward power, wealth and status, and their children will grow up in such an atmosphere. Professor Quinton said it well when he wrote that elitism is used as the loathsome opposite to comprehensive egalitarianism, the principle that all goods things-in particular power, wealth, and status-should be equally distributed, id. at 719, [but], [tlhere is a question about the moral sincerity of the small group of actual enthusiasts for comprehen- sive egalitarianism. If equality is right, it is right not just between one English person and another but between everyone. The average British worker has an income at least twenty times as large as his opposite number in . If the incomes of the two nations were pooled and distributed equally between all the citizens of both, there would be about ten dollars per head per week left, or an average weekly wage of about twenty dollars for each wage earner. This would double the per Certification of Trial Lawyers 35 country comes, in the fashion of our times, when the legal profession as well as other traditional professions and institutions are being attacked as "elitist." In this vein, a recent book, Unequal Justice,20takes as its theme the notion that all economically successful lawyers are elitist, and their "national" , the American Bar Association, has a history of trying to shut out of the profession any applicants who did not fit the classic majority mold of white, Anglo-Saxon, protestant, "patriotic" and conservative. Professor Jerold Auer- bach, the author, unabashedly uses the word elitism on just about every page to describe the American legal professi~n.~~The profes- sion, he says, has never been a public profession because no substan- tial part of the profession serves the masses of publi~.~The majority of lawyers are an elite group, captured by the most powerful eco- nomic and social forces in the country." They have warped our system of justice to the point where it is more process than result or product, and means are more important than ends.24 [Tlhe lawyer's obsession with craft and process, which liber- ated his skills, also dominated his values and inhibited his social goals . . . . They assumed that how results were reached, not

capita incomes of Indians and save enormous numbers from starvation or the kind of malnutrition that leads to any early death. Only a tiny, millenarist minority of egalitarians are ready to cany their reasoning to this consistent limit. For most egalitarians, equality begins at home. Id. at 732. That elitism, whatever the definition, is always with us in some form was convincingly argued in Ferdinand Mount's article The Dilution of Fraternity, En- counter, Oct. 1976, at 17. 20. J. AUERBACH,supra note 15. Professor Auerbach argues that American lawyers and judges have created a system which is based on social values oppressive to large segments of the population. Id. at 285. The profession is symbolized by the American Bar Association and its history is intrinsically entwined with all that is wrong with the American legal profession. The book purports to trace the history of the organized bar, emphasizing its chummy relationship with legal education, its "merging capitalism, boosterism, and Americanism with legalism," id. at 133, its fear of the New Deal, id. at 191-92, and its anti-communist loyalty oath harass- ment of nonestablishment lawyers. Id. at 236-39. 21. The word elite was used three times in the first page of the Introduction. The words, "lawyer elites" or "professional elite" are used to such an extent that a conservative guess of five hundred times used would not be far off the mark. 22. J. AUERBACH,supra note 15, at 297, 307-08. 23. Id. at 292. 24. Id. at 227. The Journal of the Legal Profession

what results were reached, was the only test of rsponsible gov- ernment. They appreciated that substantive results without fair process were procedurally unconscionable. But they failed to understand that process isolated from substance transformed lawyers into mere technicians in the service of power. Respond- ing to the existing allocation of power, most of them were not prepared to consider the wisdom of redistributing it.25 Thus, it is argued, since most lawyers do not really care about the results of their work, their actions are guided by, and only serve, the dominant economic and social Therefore, it is foolish for us to be pleased when large firms and successful lawyers take minor- ity group newcomers into their practices, because these people will also become part of a professional elite whose values are those of a "deeply conservative,'' "anti-libertarian" group.27AS a prime exam- ple, it is shown that although the New Deal served as an effective vehicle for social mobility and political power for many young law- yers who were not of the majority type (such as Jews and Irish- Catholics) this did little for the country because these lawyers merely became part of the legal profession elite, assuming the same values and views.28 To those with Professor Auerbach's attitude, it seems that only lawyers who go into solo practice and do not represent business enterprise or propertied interests will not fall into the prevailing scheme of things.2BThe prevailing scheme of things is the capitalis- tic and individualistic foundation of our legal system. To the Unequal Justice type of critic, lawyers who, for example, draft wills and handle the estates of their clients are dupes of the system,

25. Id. 26. Id. at 260-61. 27. Id. at 261. Although these ideas run throughout the book, Professor Auer- bach clearly stated them in an op-ed article in the New York Times. His position is an economic one, that the profit system is incorporated into the practice of law and this taints all involved therein. If profit divorced from social responsibility is a central problem in American society, will that problem be alleviated by affirmative action and preferential hiring? The answer, clearly, is no. Once outsiders enjoy the earnings, status and privileges of elite partnerships they will inevit- ably defend the system that rewards them-and discriminates against still other groups of marginal, disadvantaged people. N.Y. Times, April 13, 1976, at 33. 28. J. AUERBACH,supra note 15, at 229. 29. Id. at 279-84. Certification of Trial Lawyers 37 trapped into merely being servants of a dominant economic and social class which controls the country. These assumptions and opinions should be compared with those critics of the legal profession in high judicial office. The judges would counter these arguments with the idea that our lawyers should know full well what they are doing, and because a great number of them do not handle the "craft and process" in a clean and facile fashion, we should make sure that our advocates, at least, will be finely honed craftsmen and craftswomen. They are saying that we need another select group from the profession already selected30 to make sure the trial advocacy craft is carried out well. Quite likely their thought is that many rough hewn lawyers who actually represent the individuals and small interest groups of our multitudinous ethnic, racial and religious society, are not fitting the counselor or trial advocate sterotypes the judges envision. The judges may be branding as incompetents many lawyers who help tell the lie to detractors of the profession such as Professor Auer- bach. The persons who serve to democratize the American legal profession are said to be incompetent by a select group within the profession. Pluralism in the American Legal Profession A great deal of discussion about the legal profession in the United States assumes that lawyers are alike and are followers of the majority of their colleagues at the Bar. Strange compatriots though they may be, Judges Burger and Kaufman, along with Pro- fessor Auerbach are united on this one assumption, that the Ameri- can legal profession is a unified and cohesive entity. The judges are quoted as lamenting the low level of trial court advocacy in the United States, while the Professor assumes that most lawyers, what- ever their race, creed, color or political persuasion are swallowed up by the predominant white, Anglo-Saxon, protestant monolithic majority in the profession. These generalities, as with others of the same genre, have some truth to them. There are some inadequate lawyers and at times many lawyers agree with their colleagues about

30. See MacCrate, Populist and Elitist Conceptions of the Bar, 5 ALI-ABA CLE REV.4 (1974). Mr. MacCrate was the immediate past president of the New York State Bar Association when he wrote this speech. He pointed out that the English Bar was an elitist conception of the profession while the present American way of doing things was in the populist tradition. 38 The Journal of the Legal Profession a subject of importance to the profession. Most American lawyers accept the capitalistic and individualistic nature of our society. But to assume that a majority of lawyers are merely dupes of the system and do not take issue with vital assumptions is just not so. The best answer to such a charge is the statement of Professors Heinz Eulau and John Sprague in their classic Lawyers in politic^:^' The charge of the legal profes'sion's captivity by business and financial interests is still common and often appears in a highly vulgar and biased form. Such conspiratorial approaches ignore altogether the fact that the lawyer has also become, to use the invidious term, the "captive" of labor unions and the govern- ment bureaucracy. Undoubtedly, the meaning of "independ- ence" has changed; but if the lawyer has become an "organi- zation man," it is all the more important to study rather than condemn the profession's relationship to the organizations in which he performs his functions. As Talcott Parsons has pointed out in a comment on the approach of the late sociologist C. Wright Mills, especially with regard to the control processes in the business world: "Mills tends to assume that the relations between law and business is an overwhelming one-way relation; lawyers are there to serve the interests of businessmen and es- sentially have no independent influence. This, I think, is an illusion stemming largely from Mills' preoccupation with a cer- tain kind of power. His implicit reasoning seems to be that since lawyers have less power than businessmen, they do not really count. "32 Quality research has demonstrated that the legal profession in the United States, unlike other professions, is not a monolithic Lawyers generally reflect their religious, racial and ethnic backgrounds, as well as the communities in which they live and practice. It has often been shown, for example, that lawyer-state legislators do not consistently support legal profession oriented leg- islation just because they are lawyers,34and instead mirror the com-

31. H. EULAU& J. SPRAGUE,LAWYERS IN POLITICS (1964). 32. Id. at 134-35, quoting F. PARSONS,STRUCTURE AND PROCESSIN MODERN Soc~m219 (1960) (emphasis in original). 33. See A. JOHNSTONE& D. HOPSON,supra note 11, at 33-35. Lortie, Layment to Lawmen: Law School, Careers, and Professional Socialization, 29 HARV.ED. REV.352 (1959); Cohen, Pluralism in the American Legal Profession, 19 ALA. L. REV.247 (1967). 34. H. EULAU& J. SPRAGUE,supra note 31, at 21. Moreoever, high lawyer cohesion, when it occurred, was not character- Certification of Trial Lawyers 39

munities they represent.35It has also been demonstrated in a study of lawyers, engineers and university professors, that lawyers are the most "independent" of the three groups because they are ranked high on "client orientation" while only medium on "colleague con- straints" or professional organization controls while practicing law.36 The numerous lawyer groups such as the Lithuanian-American Lawyers Association, the Catholic Lawyers Guild, the Italian- American Lawyers Association, the Philipino-American Bar Asso- ciation, the Mexican-American Bar Association, the Southern Cali- fornia Chinese Bar Association among others, are symbols that the legal profession is still a pluralistic collection of people.

Some Judicious Answers What an objective observer must see are the subtle goals and purposes of these various critics. Unequal Justice types use expres- sions like "elite" to characterize those they distrust; they would like to create a new legal system, without judges like the Chief Justice. They would like their own particular political, social and economic philosophy to be applied by a legal profession of their own making. On the other hand, many lawyer and judicial critics think in terms of a legal profession resembling the American medical profession, where entry to the profession is tightly controlled. Their picture of

istic of any particular type of bill . . . Derge produced even stronger evidence in examining the voting behaviors of lawyers on roll calls directly affecting their profession six-on relating to the free structure for legal structure and organization of the judicial system. On all but one of these roll calls, the lawyer divided in approximately the same way as the non-lawyers did. Derge concludes that "there is no 'lawyer bloc' in roll-calls involving public policy intimately related to the prac- tice of the law." Id. at 21. 35. Eulau & Sprague also found that "Lawyers in legislatures will also reflect the large social environment of which the legislature is a microcosm." Id. at 26. "For all practical purposes, then, lawyers and nonlawyers do not differ in their ideological stance; and, certainly, in these four legislatures, in 1957 at least, lawyers were not more conservative than nonlawyers." Id. at 27. See also Wells, The Legal Profession and Politics, 8 MIDWESTJ. POL.SCI. 166, 186 (1964); Cohen, Confronting Myth in the American Legal Profession: A Territorial Perspective, 22 ALA.L. REV. 513, 526-27 (1970). It is also demonstrated that lawyers differ in income by location, as well as experience, type of practice and clientele. York & Hale, Too Many Lawyers? The Legal Services Industry: Its Structure and Outlook, 26 J. LEGALED. 1, 20-22 (1973). 36. Wilensky, The Rofessionalization of Everyone, 70 AM. J. SOC.137, 154-55 (1964). 40 The Journal of the Legal Profession the legal profession is one of all lawyers fitting into a mold, usually like that of the large firm types in the United States, or even like the English barristers. The stereotype of a monolithic legal profes- sion is probably responsible for the criticism of lawyer advocates. Our trial courts are full of diverse advocate types who do not play the advocacy game the way some lawyers and judges would like but who are available to their various ethnic, religious, racial, economic, political and social circles of fellow citizens. This explosive diversity invades that sense of human symmetry which pervades the stereo- type many have of the "ideal lawyer" in the large, urban firms. The judicial officers of this country have many and varied pow- ers. If judges find incompetent lawyers in their trial courts, they have the power to do something about such advocates. In criminal cases they have the right to hold such advocacy to be ineffective. In addition, they have enormous powers over the ethics of the legal profession. They have the power to bring disciplinary charges against lawyers who are negligent or inadequate in their courts. They can specify to bar associations the type of conduct which is incompetent and request that discipline follow under the applicable rules of conduct. If the bar fails to act, the final authority over such matters is in the judiciary. If there is incompetence in the legal profession, it is time for the judiciary to act. As Monroe Freedman of the Hofstra Law School said in 1976 If one-third to one-half of the litigating lawyers are inade- quate, and if it "happens regularly" that attorneys are unable to handle criminal cases assigned to them, and if Chief Justice Burger in eighteen years on the Bench has indeed seen hundreds, if not thousands, of "miscarriages of justice", caused by incompetent lawyers, then who is best able to do something about it? Who, in fact, has a constitutional and an ethical re- sponsibility to do something about it? The answer is obvious: Chief Justice Burger, and his colleagues on the bench. On the contrary, however, not the Chief Justice nor vir- tually any other judge has accepted that fundamental responsi- bility. It is, indeed, extraordinary for a judge to seek disciplinary action against an attorney on grounds of incompetence, even though it is unprofessional for a lawyer to accept a case that he or she is not competent to handle, and even though a judge is bound to prevent unprofessional conduct and to guard against the violation of constituional guarantees such as the right to effective assistance of counsel. Certification of Trial Lawyers

In fact, the courts have gone in precisely the opposite direc- tion. They have placed such a "heavy burden" upon a defendant to maintain a claim of ineffective assistance of counsel, that innumerable cases are never appealed, and in most of those that are appealed, the inadequate attorney is "~indicated."~~ The creation of more committees and even a bureaucracy in order to certify trial advocates would not only cause waste of re- sources but it could effectively negative the democratizing tenden- cies we find at work in the American legal profession. Many could come to fear those who would be chosen to certify lawyers for the advocate's role. One of the advantages to our fused system is the right of the client to have both a solicitor and a barrister in the same lawyer. It is hoped we will have the good sense to continue such a system.