Report

National Action Plan

A National Action Plan on Lawyer Conduct and Professionalism
A Report of the Working Group on Lawyer Conduct and Professionalism

Adopted by the Conference of Chief Justices January 21, 1999

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Comments and questions can be sent via e-mail to Paula Hannaford at phannaford@ncsc.org.

EXECUTIVE SUMMARY

In response to concerns about a perceived decline in lawyer professionalism and its effect on public confidence in the legal profession and the justice system, the Conference of Chief Justices (CCJ) adopted Resolution VII at its 1996 Annual Meeting. This resolution called for a study of lawyer professionalism and the development of a National Action Plan to assist state appellate courts of highest jurisdiction in providing leadership and support for professionalism initiatives.

With funding by the State Justice Institute and support from the National Center for State Courts (NCSC) and the American Bar Association Center for Professional Responsibility ("Center"), the CCJ Committee on Professionalism and Lawyer Competence ("Committee") carried out the resolution. Under the direction of the Committee, the NCSC and the Center surveyed state courts, bar associations and other legal organizations, and ABA-accredited law schools concerning professionalism and legal ethics programs in each state and solicited their opinions about the support that such programs need from state supreme courts.

Summaries of the responses were provided to a Working Group of 30 judges and lawyers who made recommendations about specific initiatives that should be included in the National Action Plan. In August 1998, a draft of the National Action Plan was distributed to a wide variety of legal and judicial organizations and made available from the NCSC website for public review and comment. Based on comments received, the Working Group finalized the National Action Plan for submission to the CCJ for consideration at its 1999 Midyear Meeting.

The report consists of three sections. Section I contains a detailed description of the institutional and individual responsibilities of the bench, the bar, and the law schools in promoting lawyer ethics and professionalism. In the course of conducting the study, the Working Group recognized that different components of the legal community influence lawyer professionalism in unique ways. A sustained commitment and coordinated effort by all of them is needed to effect any meaningful change in the level of professionalism demonstrated by the legal community.

Section II contains the specific recommendations of the National Action Plan. The recommendations are organized in the familiar black letter and commentary format and address seven specific topics of lawyer ethics and professionalism: (A) Professionalism, Leadership and Coordination; (B) Improving Lawyer Competence; (C) Law School Education and Bar Admission; (D) Effective Lawyer Regulation; (E) Public Outreach Efforts; (F) Lawyer Professionalism in Court; and (G) Interstate Cooperation.

The specific recommendations of the National Action Plan are:

A. Professionalism, Leadership, and Coordination
The appellate court of highest jurisdiction in each state should take a leadership role in evaluating the contemporary needs of the legal community with respect to lawyer professionalism and coordinating the activities of the bench, the bar, and the law schools in meeting those needs. Specific efforts should include:

  • Establishing a Commission on Professionalism or other agency under the direct authority of the appellate court of highest jurisdiction;
  • Ensuring that judicial and legal education makes reference to broader social issues and their impact on professionalism and legal ethics;
  • Increasing the dialogue among the law schools, the courts and the practicing bar through periodic meetings; and
  • Correlating the needs of the legal profession – bench, bar, and law schools – to identify issues, assess trends and set a coherent and coordinated direction for the profession.

B. Improving Lawyer Competence

  1. Continuing Legal Education (CLE)
    Each state's appellate court of highest jurisdiction should encourage and support the development and implementation of a high-quality, comprehensive CLE program including substantive programs on professionalism and competence. An effective CLE program is one that:
  • Requires lawyer participation in continuing legal education programs;
  • Requires that a certain portion of the CLE focus on ethics and professionalism;
  • Requires that all lawyers take the mandated professionalism course for new admittees;
  • Monitors and enforces compliance with meaningful CLE requirements;
  • Encourages innovative CLE in a variety of practice areas;
  • Encourages cost-effective CLE formats;
  • Encourages the integration of ethics and professionalism components in all CLE curricula;
  • Encourages CLE components on legal practice and office management skills, including office management technology; and
  • Teaches methods to prevent and avoid malpractice and unethical or unprofessional conduct and the consequences of failing to prevent and avoid such conduct.
  1. Law Office Management
    State bar programs should support efforts to improve law office efficiency. Effective support includes:
  • Establishing a law office management assistance program;
  • Providing assistance with daily law office routines; and
  • Providing monitoring services for lawyers referred from the disciplinary system.
  1. Assistance with Ethics Questions
    Lawyers should be provided with programs to assist in the compliance of ethical rules of conduct. State bar programs should:
  • Establish an Ethics Hotline;
  • Provide access to advisory opinions on the Web or a compact disc (CD); and
  • Publish annotated volumes of professional conduct.
  1. Assistance to Lawyers with Mental Health or Substance Abuse Problems
    Lawyers need a forum to confront their mental health and substance abuse problems. State bar programs should:
  • Create a Lawyer Assistance Program (LAP) if one does not exist;
  • Fund the LAP through mandatory registration fees;
  • Provide confidentiality for LAP programs;
  • Establish intervention systems for disabilities and impairments other than substance abuse or expand existing LAPs to cover non-chemical dependency impairments;
  • Provide monitoring services for lawyers referred from the disciplinary system; and
  • Provide career counseling for lawyers in transition.
  1. Lawyers Entering Practice for the First Time – Transitional Education
    Judicial leadership should support the development and implementation of programs that address the practical needs of lawyers immediately after admission to the bar. Effective programs for newly admitted lawyers:
  • Mandate a course for new admittees that covers the fundamentals of law practice;
  • Emphasize professionalism;
  • Increase emphasis on developing post-graduation skills; and
  • Ensure the availability of CLE in office skills for different office settings.
  1. Mentoring
    Judicial leadership should promote mentoring programs for both new and established lawyers. Effective programs:
  • Establish mentoring opportunities for new admittees;
  • Establish mentoring opportunities for solo and small firm practitioners;
  • Provide directories of lawyers who can respond to questions in different practice areas;
  • Provide networking opportunities for solo and small firm lawyers; and
  • Provide technology for exchange of information.

C. Law School Education and Bar Admission

  1. Law School Curriculum
    Law schools should prepare students for legal practice by providing instruction in the fundamental principles of professionalism and essential lawyering skills.
  2. Bar Examination
    Bar exams should reflect a focus on assessing the fundamental competence of new lawyers.
  3. Character and Fitness Evaluation
    Law schools should cooperate with bar admissions agencies by supplying complete and accurate information about students' character and fitness for legal practice.
  4. Bar Admission Procedures
    Admission procedures should be designed to identify instances of poor character or fitness. When appropriate, conditional admission may be granted.

D. Effective Lawyer Regulation

  1. Complaint Handling
    Information about the state's regulatory system should be accessible and clearly presented to both lawyers and the public. Complaints should be reviewed quickly, and non-disciplinary matters should be redirected to more appropriate mechanisms. Complainants should be informed about the status and outcomes of their complaints.
  2. Ethics Problems and Minor Misconduct
    States should offer remedial programs for lesser misconduct. These could include: law office management training, participation in a lawyer assistance program, enrollment in an ethics school or CLE, and fee arbitration or mediation.
  3. Disciplinary Sanctions
    Disciplinary systems should include a wide range of sanctions to address varying levels of misconduct. Public sanctions should be reported to the ABA's National Lawyer Regulatory Databank to maintain interstate consistency.
  4. Client Protection Funds
    Each state should maintain a client protection fund to reimburse clients for losses due to attorney misappropriation. The fund should be financed by a mandatory lawyer assessment, managed by a board of lawyers and laypeople, and publicize its availability and efforts.
  5. Other Public Protection Measures
    The regulatory system should include: mandatory trust account maintenance, random audits, malpractice insurance requirements for appointed counsel, annual reporting of trust accounts, interim suspensions for threats of harm, consideration of recertification, and a 30-day "no contact" rule post-representation.
  6. Disciplinary System Efficiency
    To increase efficiency, the system should: allow discretionary review of board decisions, permit discipline on consent, require cooperation from respondents, establish time standards, periodically review processes, and use trained professional staff for investigations and hearings.
  7. Public Accountability
    Disciplinary agencies must be transparent. This includes: public access to disciplinary decisions and lawyer records, public hearings, layperson involvement in panels, and public education about the disciplinary system.

E. Public Outreach Efforts

  1. Public Education
    Lawyers and judges should increase public understanding through: public liaison offices, community outreach materials, school partnerships, speaking engagements, and education for legislators and government agencies.
  2. Public Participation
    Public involvement in policymaking should be encouraged. The nomination process for public representatives must be transparent, and appointees should be given tools and support to participate meaningfully.
  3. Access to Justice
    Judges and the bar should expand access to justice by supporting and participating in pro bono initiatives, developing Emeritus Lawyer programs, and providing institutional support and funding for pro bono services.
  4. Public Opinion
    Courts and bars should create channels for the public to offer feedback, make suggestions, and voice concerns about the justice system.
  5. Marketing and Advertising Standards
    Standards should recognize the need for lawyers to acquire clients while emphasizing ethical obligations. Marketing must be truthful, not misleading, and should promote respect for the profession and justice system.

F. Lawyer Professionalism in Court

  1. Alternative Dispute Resolution (ADR)
    Judges should promote ADR when appropriate. Programs should educate lawyers and the public about ADR options, set and enforce standards of conduct, and ensure proper judicial oversight of ADR compliance.
  2. Unprofessional Litigation Tactics
    Courts should discourage abusive tactics by enforcing procedural rules, promoting uniformity across jurisdictions, increasing judicial supervision, and encouraging referrals for misconduct.
  3. High-Profile Cases
    In high-profile cases, lawyers should avoid public commentary that could compromise litigants' rights or mislead public perception of the justice system.

G. Interstate Cooperation

State courts should coordinate efforts to ensure consistent lawyer regulation and resource sharing. Strategies include: reporting public sanctions to the ABA databank, recognizing CLE across jurisdictions, standardizing reciprocity rules, launching regional professionalism programs, and adopting tools like the International Standard Lawyer Numbering System.

Introduction

The vast majority of lawyers in this country are competent professionals. They are conscientious advocates of their clients' interests, honest in their representations to courts and to opposing counsel, civil to their legal colleagues, and generous contributors of their time and expertise to their communities. In short, they conduct themselves according to the highest dictates of the legal profession.

Nevertheless, the unprofessional and unethical conduct of a small, but highly visible, proportion of lawyers taints the image of the entire legal community and fuels the perception that lawyer professionalism has declined precipitously in recent decades. The implications of this behavior for the American justice system are extremely serious, in that the behavior contributes to decreased public confidence in legal and judicial institutions, as well as heightened stress and decreased professional satisfaction for those lawyers who endeavor to practice in a professional manner.

In response to these concerns, the Conference of Chief Justices (CCJ) adopted a resolution at its 1996 Annual Meeting calling for a study of lawyer professionalism and the development of a National Action Plan to assist state appellate courts of highest jurisdiction in reversing this trend. With funding from the State Justice Institute, the National Center for State Courts (NCSC), in cooperation with the American Bar Association Center for Professional Responsibility, undertook a national study to examine state professionalism initiatives. This report is the culmination of those coordinated efforts.

Successful efforts to improve lawyer conduct and enhance professionalism cannot be accomplished unilaterally. The objective of such efforts is a change in the very culture of the legal profession. Not only is it important to correct the behavior of lawyers who fail to live up to professional norms, it is critical that those lawyers who do conduct themselves professionally once again become the most visible members of the legal community.

Success requires a sustained commitment from all segments of the bench, the bar, and the academy. Each plays a different role, both institutionally and individually, in their contributions to these efforts. Section I of this report describes these roles in detail.

Section II of this report consists of specific recommendations for state courts to improve lawyer conduct and enhance professionalism. These recommendations are based on responses to the survey on professionalism initiatives conducted in the fall of 1997. The types of initiatives that have proven effective in the various jurisdictions cover a broad spectrum of ideas. Many of the recommendations concern programs that are not new, but were cited by a number of jurisdictions as being particularly effective in addressing lawyer conduct.

These recommendations address all areas of professionalism identified by survey respondents in the national study. In addition, they recognize that judges must lead by example in demonstrating civility and other characteristics of professionalism. An effective system of lawyer regulation is a necessary foundation for any efforts to enhance lawyer professionalism. The reverse is also true — enhancing lawyer professionalism should aid the goals of effective lawyer regulation.

This report recognizes that each state's appellate court of highest jurisdiction has ultimate authority and responsibility for ensuring that this foundation is sufficient to protect the public from lawyer misconduct of every degree — major and minor.

Professionalism is a much broader concept than legal ethics. For the purposes of this report, professionalism includes not only civility among members of the bench and bar, but also competence, integrity, respect for the rule of law, participation in pro bono and community service, and conduct by members of the legal profession that exceeds the minimum ethical requirements.

Ethics rules are what a lawyer must obey. Principles of professionalism are what a lawyer should live by in conducting his or her affairs. Unlike disciplinary rules that can be implemented and enforced, professionalism is a personal characteristic. The bench and the bar can create an environment in which professionalism can flourish, and these recommendations are intended to assist in that endeavor. But it is the responsibility of individual judges and lawyers to demonstrate this characteristic in the performance of their professional and personal activities.

Section III of the National Action Plan consists of a series of briefing papers that were prepared for the CCJ Working Group on Lawyer Conduct and Professionalism. These briefing papers summarize the state responses to the CCJ Survey on Lawyer Professionalism Initiatives. They are included for illustration purposes to provide additional information about various programs that states have enacted to enhance lawyer professionalism.