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Certification of Trial Lawyers-A Judicial Effort to Restructure the American Legal Profession?

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Certification of Trial Lawyers-A Judicial Effort to Restructure the American Legal Profession? Certification of Trial Lawyers-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 advocates. 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 judges have become bolder in their declara- tions about the profe~sion.~ Judge 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 lawyer 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 Bar whose members are known as barristers. 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 advocate. Solicitors 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 Inns of Court. 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 barrister) can interview and counsel his client alone and nothing is lost in the transmission from lawyer to client. The English solicitor 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.
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