The West
Virginia Lawyer
April 1997 Issue
| President's Page | YLS Section |
| TechTalk | Feature Articles |
| Dean's Column | Tinder Box |
| Letters to the Editor | CLE Calendar |
Mediation: an Idea for Which the Time Has Come
Although the Rules of Procedure for Court
Annexed Mediation in the Circuit Courts of West Virginia were
adopted by Order entered March 24, 1993, and effective July 1,
1993, the implementation of mediation in various Courts
throughout West Virginia, has varied widely. Recently, however,
more and more Courts are turning to mediation as a means to to
help alleviate large back-logs of cases and as an expedient and
effective way to resolve appropriate disputes. Many judges are
incorporating mediation provisions into their Scheduling Orders,
and in at least one jurisdiction in West Virginia, a civil matter
cannot be scheduled for trial until it has been through the
mediation process.
Mediation has the potential to
dramatically change the landscape of dispute resolution in our
society. The challenge for lawyers, in virtually every case, will
be to determine whether a dispute should be resolved by
negotiation, litigation, mediation or some other form of ADR. In
appropriate cases, lawyers and clients may find mediation to be
the most powerful tool to resolve business disputes early, cost
effectively and fairly. "Mediation is an informal,
non-adversarial process whereby a neutral third party, the
mediator, assists parties to a dispute to resolve by agreement,
some or all of the differences between them. In mediation,
decision-making authority remains with the parties, the mediator
has no authority to render a judgment on any issue of the
dispute." (Rule 2 of the Rules of Procedure for Court
Annexed Mediation).
I have been involved in two mediations
recently, one of which was entirely successful, and one of which
was not. Although we were unable to resolve the matters in
controversy after several attempts, the exchange of information
and ideas has helped narrow the issues and enabled the parties to
more clearly see the real areas of conflict. Certainly, mediation
will not be a panacea for all cases, but there can be little
doubt that more and more Courts will utilize mediation and we, as
lawyers, can take full advantage of the opportunities presented
by mediation by not only understanding the process, but also by
being completely prepared. Because mediation is non-binding, some
lawyers assume there is no downside and that the preparation
required for mediation is the same as for a deposition or
settlement conference. There can be significant advantages to
properly preparing one's client and understanding how the
client's interest may be advanced by influencing the design of
the mediation process.
In preparing for recent mediation, I read
an article by Bennett G. Picker excerpted from Pennsylvania
Manual on Alternative Dispute Resolution (A.D.R.), published
in March by the George T. Bisel Company. The article contained a
comparison between mediation and adjudication and listed the
advantages and disadvantages of each form of dispute resolution.
Of particular interest were the following practice pointers for
preparation for a mediation:
. Before selecting a mediator,
carefully examine the mediator's reputation, expertise,
personality, style and experience.
. Participate in the design of the mediation process.
. Be certain that all necessary parties
and decision makers will be present during the mediation.
. Make sure that representatives of
adverse parties have comparable settlement authority.
. Set aside sufficient time for the
process.
. Before the mediation, make a
cost-benefit and litigation-risk analysis.
. Review with your client its
interests, goals, objectives and business needs. Prioritize the
needs of your client and the opposing party.
. Develop your client's BATNA (best
alternative to a negotiated settlement) and WATNA (worst
alternative to a negotiated settlement).
. Educate your client about the
mediation process, and explain the roles of the mediator, the
advocate and the client.
. Assess your client's ability to be
articulate, and determine, in advance, the most effective level
of client participation.
. Prepare your client for the
likelihood that the mediator will ask questions such as "How
do you feel about the dispute?" and "What is least
important?"
. Develop a specific negotiating
strategy for the mediation. Continually reassess your strategy
and revise it, as appropriate.
. Avoid the use of emotionally charged
language. Where appropriate, express empathy for other parties'
concerns.
. Listen carefully. Parties are often
more open in a mediation session than in unassisted negotiations.
Be on the lookout for signals from opposing parties throughout
the mediation process.
. Prepare, in advance, a few good
reasons why the other party should move toward your settlement
proposals.
. Ask the mediator, where appropriate,
to present settlement options as his or her own idea to avoid
reactive devaluation.
. Decide, in advance, what steps you
and your client will take if mediation fails to achieve a
negotiated settlement.
. Anticipate the measures likely to be
taken by adverse parties if the dispute is not resolved.
. Remember that a "failed"
mediation often will be the catalyst for a negotiated resolution
of the dispute.
I found these tips to be particularly
helpful, not only in preparing my client for the mediation
process, a process which was unfamiliar to the client, but in
helping me to make the most of the opportunity presented even by
unsuccessful mediation. The trend toward mediation is growing,
and its effect on the manner in which we practice will be
tremendous. We can better serve our clients; the Courts and our
system of justice by understanding the process and using it
effectively.
Recruiting Through Outreach at the College
of Law
Applications to law schools around the
country have decreased each year since 1991, and the decline in
applications has been similarly experienced at WVU. The
combination of decreasing applications and declining employment
opportunities has influenced the College of Law to reduce the
size of the Fall, 1997 entering class.
It is my objective to provide incentives
for West Virginia's citizens to consider the study of law, so
that the law school can continue to attract bright,
highly-capable, motivated students. Several initiatives are
underway to attempt to provide information about the study and
practice of law to West Virginia's college and high school
students, so that these young persons will have information upon
which to base a decision about law school as they survey
available career options.
Pre-Law Academy. Initiated three
years ago, the WVU College of Law Pre-Law Academy is held during
a February week-end at the law school. This program has been
structured to assist students who might be interested in the
study of law by discussing ways to strengthen their academic
credentials and their test-taking skills, by introducing them to
the study of law, and by answering their questions about law
school and the practice of law.
The program begins with a Socratic class,
conducted by a College of Law faculty member, and each student
has the opportunity to participate in the dialogue of legal
analysis. This year, for example, the class analyzed the VMI
case, United States v. Virginia. Discussion focused on the
application of equal protection principles and societal
consequences of the decision were explored. Dr. William E.
Parker, an education specialist, administers a sample Law School
Admissions Test, and instructs students in improving testing
skills and results. College of Law legal writing faculty members
analyze the students' writing skills, and offer individual advice
on improving writing abilities. Representatives from the College
of Law discuss the admissions and financial aid processes and
offer advice on preparation for law school.
Several additional features of the
program are particularly significant. Students have an
opportunity to discuss the "realities" of law school
with law students, and a group of distinguished lawyers and
judges present information concerning the challenges of
practicing law and career opportunities in the legal profession.
The Pre-Law Academy has been a success in
assisting students with an interest in or curiosity about the
study of law to collect information about credentials required
for admission to law school, the study of law, and opportunities
in practice. In the Fall, 1997, several students will enter the
College of Law who are alumni of the Pre-Law Academy. Please
address concerning this program to me, or to Assistant Dean for
Admissions, Janet L. Armistead (304) 293-5304.
Governor's Honors Academy. Each
year, outstanding high school students from each West Virginia
county gather on a state college campus for several weeks to
study mathematics, science, fine arts, and other subjects. West
Virginia University will host the Governor's Honors Academy
during the summer of 1997, and the College of Law will
participate by using law school faculty and students to work with
these high school students to conduct several mock trials.
Health Sciences Technology Academy. The
Health Sciences Technology Academy (HSTA) was inaugurated several
years ago by the WVU Health Sciences Center and has been
substantially supported by a Kellogg Foundation grant, as well as
by private contributions. Similar to objectives
espoused by the Pre-Law Academy, HSTA seeks to expose students
to the analytical discipline of medicine and the health sciences
but focuses upon younger students, those in grades 9 through 12.
This summer, the College of law will participate in the HSTA
program by offering a course discussing tolerance as a societal
value. Students will learn about events in American history that
evince racial or ethnic discrimination -- slavery, the Chinese
Exclusion provisions, the interment of Japanese-Americans, the
bigotry to which newly-arrived immigrants such as Italians,
Poles, Irish and Jews were subjected. Students will then have the
opportunity to work with documentary award- winning film-maker
Jacob Young In making a movie about instances of tolerance or
discrimination from their own experience. Copies of this film
will be distributed to schools across West Virginia.
I welcome your comments and suggestions
concerning ways to make the College of Law's outreach efforts to
college and high school students even more effective.
Home Page. The College of Law home page
is now available for your perusal. Click on
http://www.wvu.edu/-law to retrieve the latest information about
the law school and its programs. Attributable to the energy,
creativity, talent and technological acumen of Library
Administrative Assistant Nancy Young, the home page is both
attractive and informative. Please make a visit, and share with
me your comments and thoughts.
YLS SECTION
ELVIS HAS LEFT THE BUILDING
(for the last time)
To the relief of many,
especially Lisa Stamm, this is my last article as chairperson of
the Young Lawyers Section. It is difficult for me to believe that
twelve months (and twelve articles) have passed since my swearing
in, but my calendar appears to be accurate. At the conclusion of
the Annual Meeting of the West Virginia State Bar in early May,
Jodie Boylen will take over as chairperson, and I will become
just another "has been" past chairperson - the
institutional memory of the YLS, I suppose.
I have been told that this is the
article in which I am permitted to stroke my own ego by telling
you that I am a great and wonderful person. I am a great
and wonderful person and leader among men (women are excluded
because I am disqualified by marriage), but I would rather pay
tribute to the people who make it possible for a group of busy
young lawyers to accomplish the work of the Young Lawyers Section
Executive Committee. It has been said many times by many
different people, but I will express it yet again: without Tom
Tinder and his capable staff, it would not be possible for the
YLS Executive Committee to function effectively. The spectrum of
YLS services, from the Lawyer Information and Referral Service to
the West Virginia Practice Handbook, would probably not exist
without the constant scheduling, staffing, cajoling, facilitating
and assisting which Tom and his staff perform every day. They are
to be commended.
On behalf of the YLS, I would also
like to express our appreciation to Bar President Richard Ford
and the members of the Board of Governors. The State Bar Officers
and Governors have for many years provided strong financial
support and encouragement to the YLS.
In addition, I would like to thank the
current past chairperson of the YLS, Carl Dascoli, for his hard
work and dedication during 6 years of service to the YLS
Executive Committee. Carl shepherded the printing of the West
Virginia Practice Handbook during his tenure and was instrumental
in establishing a firm financial footing for the Executive
Committee and its projects. Carl should be commended for his
years of service (and his parties).
Last but not least, I would like to
recognize the efforts of Lisa Stamm as Editor of this magazine.
Lisa has shown great patience with my article deadlines, but has
still been able to turn out a fine product, on time. Lisa should
be commended for her excellent performance.
Next month, Jodie Boylen will take
over the authorship of the YLS article. If any of my article
offended any of you in the past 12 months, please direct your
comments to Ms. Boylen.
Well, it has been fun, but it is also
time to go: Farewell.
"Press 1 . . . "
Numerous times in the past, I have
used this column to discuss technology in law offices and
especially the need for lawyers to use automation to more
effectively and efficiently serve their clients. A prime example
of computer utilization is the State Bar's successful TechNet
system.
But, the type of automation which has
made the greatest inroads into the practice of law, and most
every part of everyday life, is voice mail. It started out as the
simple "answering machine" in our homes and then went
"high-tech" and became voice mail in offices and
businesses around the country.
The concept is so simple - using the
telephone to communicate with one another when the one or the
other is not available. It has progressed now to the point where
you can "communicate" with another person and not
actually have to personally talk with them. Some people will
regret the lack of personal interaction; however, there are many
occasions - at home or at work - when messages and information
just need to be shared and not necessarily discussed.
According to the survey results that I
saw in a recent business publication, 80% of telephone
communications in the business world are just for the sharing of
information. One person just has a question and the other person
can provide the fact or the figure without any additional
explanation either needed or wanted.
I am a strong supporter of voice mail
telephone systems. Especially for law offices, I believe that
there are several advantages including:
1. A
significant reduction in "telephone tag" where two
people go back and forth just leaving message that they called
one another without asking or explaining what they need.
2. A reduction
in the time and utilization of a secretary, assistant, paralegal,
colleague, etc., in writing on a "pink slip" the date,
time, name of caller, telephone number of caller and message from
the caller.
3. The ability
of the caller to leave longer and more detailed messages that may
get messed up, misinterpreted or lost if given to a human being.
4. The
opportunity for staff members to accomplish more work since they
are not spending time on taking telephone messages.
5. The positive aspect of being able to leave a message at any time on any day rather than being constrained to normal working hours when there is someone there to take your call.
More than three years ago, the State Bar
went to a voice mail system with each staff member having a
direct telephone number. It has worked exceedingly will with
favorable comments from State Bar members, members of the public
and our staff. With the direct telephone lines, anyone can speak
personally with a staff member or leave a voice mail message
without being delayed by going through some type of telephone
operator.
More recently, we implemented an
automated attendant telephone system. Now, State Bar members and
members of the public have another option available to them when
telephoning the State Bar Center. A caller can listen to a
message and decide just which staff member they need to talk to
in order to get the exact information they need. The system has
been well received. Perhaps the most important part of it is that
there is the availability to reach a live person if the caller
does not understand which specific staff member to connect to.
It has been interesting to me to see
the rapidly increasing number of law offices in West Virginia -
and throughout the country - that are using voice mail and
automated attendant systems. It is another technology advancement
to better serve clients and the general public.
Of course, the next step in telephone
communications will be picture phones where you can actually see
the person you are talking to. I am not looking forward to that
next step since then you will be able to see how I have changed
from the picture in the upper right hand corner of this page!
"Technology Survey Results"
Several months ago, the State Bar's
TechNet Committee, placed a Technology Survey in the West
Virginia Lawyer magazine. The results were interesting and
informative. They are as follows:
1. What operating system does the
computer system in your office use?
A. DOS
15%
B. Windows
(3.x) 37%
C. Windows
95 34%
D. Other
14%
2. Are you planning to change your
operating system?
A. Yes
45% (80% of the people responding said
they would be changing to the Windows 95 system.
B. No
55%
3. Does your computer have a modem or
access to a modem via a network?
A. Yes
95%
B. No
5%
4. Are you subscribing to an on-line
service which gives you Internet and World Wide Web access?
A. Yes
55%
B. No
8%
C. No, but plan to
in the near future 11%
D. I do at home,
not at office 11%
E. I do at office,
but not at home 11%
F. I do, both at
home and office
15%
5. Are you a subscriber to the TechNet
system?
A. Yes
56%
B. No
44%
6. If you are a subscriber to the
TechNet system do you prefer to access the system through the
Bulletin Board Software (BBS) or through the World Wide Web (WWW)
on the State Bar's Homepage?
A. Bulletin Board Software 19%
B. World Wide
Web 19%
C. It doesn't
matter 43%
D. Don't have the
foggiest! 19%
7. If you are a TechNet subscriber, are
you having problems with the TechNet software?
A. Yes
60%
B. No
40%
8. List in order of priority, the
information you would like to see provided to State Bar members
by computer.
1. West
Virginia Supreme Court cases back to 1945.
2. 4th Circuit
Court of Appeals decisions.
3. West Virginia
Administrative Agency Rules and Regulations
4. West Virginia
Code
5. Secretary of
State Corporations Data
6. Continuing
Legal Education Information and Calendar
7. West Virginia
Supreme Court's Syllabus of Cases
8. West Virginia
Local Court Rules for Each Judicial Circuit
9. Young Lawyers
Section Practice Handbook
10. Lawyer
Disciplinary Board's Legal Ethics Opinions
11. US Bankruptcy
Court Information
9. Have you ever visited the State Bar's
Homepage?
A. Yes
30%
B. No
70%
ABA Launches Campaign to Identify More
Disability Lawyers
The American Bar Association's
Commission on Mental and Physical Disability Law is initiating a
voluntary campaign to assemble the names and addresses of lawyers
who have a special interest in disability law by virtue of their
legal practice or their own disabilities. The collected
information will be used to form a disability lawyer registry and
a directory of lawyers, firms, organizations and agencies that
specialize in disability law. This effort marks the first time
any national organization has attempted to compile a
comprehensive list of disability lawyers. To accomplish this
goal, the ABA requests that attorneys who practice disability law
and/or who have disabilities, mail, fax or e-mail their names,
addresses, phone numbers and areas of concentration, as well as
any other pertinent information, to the Commission. For more
information about this data collection effort or to contribute
information you may have that will help this effort, please
contact the ABA Commission on Mental and Physical Disability Law,
740 15th Street, N.W., Washington, D.C., 2005-1009 or call (202)
662-1570, fax (202) 662-1032 (TTY) (202) 662-1012,
kbleyer@staff.abanet.org; attention to Kristi Bleyer, CMPDL.
Thank you in advance for your time and attention in this matter.
West Virginia Judges Attend the National
Judical College
In 1996, 15 judges from the
state of West Virginia attended The National Judical College to
gain new insight as expert members of the judiciary. The National
Judicial College provided West Virginia judges a forum for
education, the opportunity for collegial dialogue and information
on current issues.
"The National Judicial College has
served West Virginia extremely well for many years as a training
resource for the judiciary and administrative officers,"
said Judge Tod J. Kaufman, the chief judge of West Virginia's
largest state trial court, the Kanawha County Circuit Court.
"The College is a unique national facility which provides
continuing education for judges from across the country each year
-- making us better equipped as judges to deal with changes in
the law and people's perceptions of these changes."
Founded in 1963 by U.S. Supreme Court
Justice Tom C. Clark, The National Judicial College is the leader
in national judicial education in this country and throughout the
world. An ABA-affiliated institution located on the University of
Neveda, Reno campus, it remains the only institution of its kind.
The mission of the College is to provide leadership in achieving
justice through quality education and collegial dialogue.
The Master of Judical Studies program
awarded six degrees during 1996. West Virginia graduates of the
program include: Judges Rebecca S. Bromely and Thomas A.
Goldsmith. The reputation of this degree program, the only one of
its kind for state trial judges in the U.S., is growing each
year. Many judges have come to view obtaining the degree as the
pinnacle of a judicial career.
1997 WV STATE BAR DIRECTORIES
TO GO ON SALE
Every member of the West Virginia
State Bar should now have or will soon receive the 1997 WV State
Bar Directory. This directory is a comprehesive tool, designed
for use with ease and will be very beneficial to law offices
throughout the State.
The State Bar has printed
approximately two thousand additional copies above those already
distributed for anyone wishing to buy extras for secretaries,
paralegals, clerks, etc. All orders must be accompanied by
check. Directories will be sold on a first come, first served
basis and will be sold for $25.00 each.
To order your 1997 Directory, please
fill out the form below and mail to the addressed listed at the
bottom of the form..
- - - - - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
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1997 STATE BAR DIRECTOR
ORDER FORM
I wish to order __________, State Bar Directory(ies), at the
price of $25.00 each.
My Name
Is_________________________________________________________(please
print)
Firm or Company
Name__________________________________________________________
Address for
Shipping____________________________________________________________
Phone
Number_________________________________________________________________
Enclosed is my check for $ , made payable to the West Virginia
State Bar.
Please Mail Order Form To:
Lisa Stamm, Editor
The West Virginia State Bar
2006 Kanwaha Blvd., E.
Charleston, WV 25311
No Order Will Be Processed Without Prepayment!
Dear Editor:
I would thank the Office of Lawer
Disciplinary Counsel for recently providing me with such swift
and certain advice that I refrained from saddling up old Rozinate
one more time and charging full-speed-ahead-damn-the-torpedos
into yet another flock of sheep.
Pax
vobiscum,
H.
John Rogers
Dear Editor:
On behalf of West Virginia University and the WVU Foundation,
please accept our thanks for West Virginia Bar Foundation's gift
of $3,840 to the ACL Public Service Fund in the College of Law.
I recently had the opportunity to
visit the law school and talke with Dean Foster about the impact
of private funds on the school. She spoke of advancements in
their skills training program and how private gifts had helped
provide computer and audio visual equipment. The availability of
that same technology in the library has been aided through
private funds has as support of the various student programs
including the Law Review, Moot Court, and Trial Advocacy. She
also stressed how the increased costs of attending law school has
placed new emphasis on the importance of private gifts for
scholarships.
Please know that I am joined by
President Hardesty, Dean Teree Foster and her collegues and
students at the College in expressing appreciation for the West
Virginia Bar Foundation's financial support. The College of Law's
ability to ensure that our students receive a quality legal
education which will enable them to meet the challenges of the
21st century is very much dependent on the continued support of
the alumni and other friends of the University.
Best wishes to you for a healthy and
rewarding new year.
Sincerely,
D.
Lyn Dotson, JD
Vice
President for Development
Dear Editor:
I am proud to inform the West Virginia Lawyer that I was able to work with four outstanding third year law students from the West Virginia University College of Law who will be excellent lawyers that made the State of West Virginia proud in their recent efforts at the Regional Competition for the National Trial Championships that were held in Philadelphia, Pennsylvania on
February 21-23, 1997 and were sponsored by Temple University
and the Temple LL.M. in Trial Advocacy Alumni Association. As a
recent graduate of the Temple LL.M. in Trial Advocacy Program, I
have been exposed to many of the finest attorneys and teachers in
the country.
The respective teams that represented
WVU College of Law in the Competition, Chad Lovejoy and Paul
Ferrell, both Huntington natives, along with Carlos Mendoza from
Miami, Florida and Kate Enos, a Fairmont native, were as
competent as any of the students I ahve ever been exposed to in
my experiences. There were uniform comments of praise for these
four individuals in their performance and how well they
represented the WVU College of Law. Mr. Ferrell and Mr. Lovejoy
advanced to the Regional final round while Mr. Enos and Mr.
Mendoza made it to the simi-finals.
Along the way, both teams beat teams
from schools such as the University of Pennsylvania and Dickinson
College. In the final round, the team of Mr. Ferrell and Mr.
Lovejoy were involved in what was described by tournament
officials as being the closest final round in memory against
Temple who is recognized as the power in this Competition. I feel
it is important for The West Virginia Lawyer to be aware
of and commend the excellent performances by these four
individuals as members of the Lugar Trial Association which has
provided through the years, great experiences for many lawers who
practice law throughout the State.
How Long Do I Have To Keep Those Client
Files Anyway?
By Robert W. Martin, Jr., Esq.
To some, the thought of ever throwing
away a file is anathema. However, as storage space becomes
increasingly more expensive and as firms continue to grow, the
issue of file retention comes up more and more at most law firms.
Often the question boils down to how many years a file must be
kept.
Research of the issue leads me to propose
a general rule suggesting that seven to ten years is reasonable.
However, many caveats go along with that recommendation and that
is the point of this article.
Interestingly, some people perceive an
advantage to throwing away files in the event of a subsequent
malpractice claim. Any such advantage seems spurious. If you are
in physical situation that does not require the disposal of any
files at any point during the foreseeable future, then by all
means keep them as your security blanket. As noted above, fewer
and fewer firms, however, have unlimited space, so for them the
question is, "When can a file be safely disposed of and how
should it be done?"
What do the ethics experts say?
Besides checking with your
malpractice carrier as many firms do, it is also a good idea to
see if there have been any ethics opinions issued in your
jurisdiction that address the issue. For such opinions in four
states deserve some attention. At first blush, the opinions are
notable for their differences. However, certain common threads
run through them. One such thread is that there is no clear
answer to the question. Many factors must be considered and,
hopefully, some of those factors will influence how lawyers go
about closing files and indeed what documents they retain in
closed files prior to destruction and what documents they return
to clients.
In Opinion 92-19 (August 1992), for
example, the Ethics Advisory Committee of the South Carolina Bar
stated that a lawyer may dispose of his or her client's files
only when it becomes "reasonable" to believe that such
disposal will not adversely prejudice the client's rights. The
opinion suggests six years as a good rule of thumb. As in all
legal matters, the focus should not be on the simple answer of
six years but on the more complicated issue of what is
"reasonable" under the circumstances. If you have
original documents that belong to the client, you should have
returned those documents at the time that the file was closed. If
the file contains income tax information relative to
"basis" or if the file involves a personal injury
action concerning an injured minor, then obviously six years
would not be a sufficient amount of time and consequently would
not be "reasonable."
The Ethics Committee of the State Bar
Association of North Dakota, in Opinion 9211 (September 1992),
does not focus on a time frame but instead focuses on the issue
of not destroying "documents belonging to the client"
unless the client consents. It goes so far as to suggest that if
a client cannot personally be notified, the attorney should
consider publication of a notice in a local newspaper. The
important concern raised in this opinion seems to be to make sure
that all original documents are returned to the client at the
same time the file is closed so as to insure that the remaining
documents in the file belong to the attorney and not to the
client.
Of course, that raises the question of
who owns the material in the files. This is a question that again
must be addressed on a jurisdiction by jurisdiction basis. For
example, Florida has unequivocally stated that the material in
the client's file belongs to the lawyer not the client. See
Opinion 88-11 of the Professional Ethics Committee of the Florida
Bar (May 1993).
Once we get beyond that issue, the North
Dakota opinion does encourage the lawyer to "exercise
discretion" in determining how long to retain files. Once
again, we are in the "Dangerous" area where rule are
determined by post facto judgment as opposed to edicts or
directions. Finally, the North Dakota opinion encourages
attorneys to keep an index of files that have been disposed of,
and states that trust fund records should be preserved
indefinitely.
Although the opinion also states that
lawyers are encouraged to dispose of files without violating
confidentiality in North Dakota, such would presumably be an
instruction to lawyers everywhere. Merely throwing files into a
dumpster would presumably not comply with that invocation but
shredding or incinerating documents would seem to comply.
Additionally, numerous commercial operations will dispose of
files and guarantee confidentiality.
Meanwhile, the Ethics Committee of the
State Bar of Montana, in Opinion 910510 (May 1991), relied to a
great extent upon "common sense" as a guide for lawyers
as to how long files should be retained. The opinion talks about
a "reasonable" length of time and, like North Dakota's
opinion and others on the topic, it contains the normal caveats
about maintaining an index of all those files destroyed. Finally,
it states that records relative to trust account disbursements
should be retained indefinitely and that the client should be
notified when files are about to be destroyed. Interestingly,
South Dakota merely references a 17-year-old informal American
Bar Association Opinion. See Ethics Committee of the State Bar of
South Dakota, Opinion 94-6 (March 1994) which cites ABA Informal
Opinion 1384 (March 1977). As one reads the various opinions of
the state bars and consults the informal opinion of the ABA, one
realizes there is much debate about how long to retain files and
very few concrete recommendations. it also becomes clear that the
ABA opinion remains the best source of answers, as oblique as it
appears.
In pertinent part, the ABA Informal
Opinion states:
We cannot say that there is a
specific time during which a lawyer must preserve specific files
and beyond which he is free to destroy all files. Good common
sense should provide answers to most questions that arise.
With the following limitations in mind,
we suggest considerations set forth below:
1. Unless a
client consents, a lawyer should not destroy or discard items
that clearly or probably belong to the client. Such items include
those furnished to the lawyer by or in behalf of the client, the
return of which could reasonably be expected by the client, and
original documents (especially when not filed or recorded in the
public record).
2. A lawyer
should use care not to destroy or discard information that the
lawyer knows or should know may still be necessary or useful in
the assertion or defense of the client's position in a matter for
which the applicable statute of limitations period has not
expired.
3. A lawyer should use care not to destroy or discard information that the client may need, has not previously been given to the client, and is not otherwise readily available to the client, and which the client may reasonably expect will be preserved by the lawyer.
4. In determining
the length of time for retention of disposition of a file, a
lawyer should exercise discretion. The nature and contents of
some files may indicate a need for longer retention than do the
nature and contents of other files, based upon their obvious
relevance and materiality to matters which can be expected to
arise.
5. A lawyer
should take special care to preserve, indefinitely, accurate and
complete records of the lawyer's receipt and disbursement of
trust funds.
6. In
disposing of a file, a lawyer should protect the confidentiality
of the contents.
7. A lawyer
should not destroy or dispose of a file without screening it in
order to determine that consideration has been given to the
matters discussed above.
8. A lawyer
should preserve, perhaps for an extended time, an index or
identification of the fields that the lawyer has destroyed or
disposed of.
Although there are many words in this
relatively brief informal opinion, the bottom line is that it is
still left up to the lawyer's "common sense,"
"discretion," and "good judgment" as to how
long to retain a file and how to dispose of it once the decision
is made that it is acceptable to do so. Put another way, for the
most part, you are on your own!
Common sense recommendation
Given the general absence of
any specific recommendations, but with due regard to those states
where there has been a stated or recommended period of time, it
seems that "good sense" would suggest that an
appropriate period of time for retention of clients' files is
generally somewhere between seven and ten years, with some
exceptions. For example, if the matter involves a minor who will
not attain the age of majority in the next 10 years, or if the
file involves estate planning information or other relevant tax
information, it might be necessary to retain the file for a
longer period of time. If one takes care when closing the file to
return all original documents to clients under cover of a letter
sent certified mail, return receipt requested, and if one take
the extra moment or two to indicate on the outside of a closed
file when the appropriate destruction date is, much time and
effort will be saved. The attorney who has been working on the
file will be the best one to judge an appropriate destruction
date and to note such determination on the outside of the file at
the time it is closed.
Conclusion
Unlike what some property and
casualty insurance are apparently starting to tell some of their
outside counsel, there does not seem to be any advantage to
destroying files unless your space or other practical limitations
so dictate. At the same time, many firms are finding themselves
in the situation where destruction of old files is a practical
necessity. In any event, all firms should properly close their
files to be prepared for the future.
About the Author: Robert Martin is
assistant risk manager for the Attorneys Liability Protection
Society in Missoula, Montana. He is a former special assistant
United States Attorney and former assistant professor of law at
Florida State University School of Law. He is admitted to
practice in Vermont, Massachusetts, New Jersey, the District of
Columbia, and he has recently applied for admission in Wyoming.
ATTORNEYS
-
INSIDE THE LEGISLATURE
House
J. D. Beane (D)
Parkersburg, WV
Mark Forest Underwood (D)
Huntington, WV
Evan H. Jenkins (D)
Huntington, WV
Lacy Wright, Jr. (D)
Welch, WV
W. Richard Staton (D)
Mullens, WV
Robert S. Kiss (D)
Beckley, WV
Warren R. McGraw II (D)
Beckley, WV
Jon Amores (D)
Charleston, WV
Larry L. Rowe (D)
Malden, WV
Mark A. Hunt (D)
Charleston, WV
Rusty Webb (R)
Cross Lanes, WV
Mike Buchanan (D)
Morgantown, WV
Barbara Evans Fleischauer (D)
Morgantown, WV
Charles S. Trump IV (R)
Berkeley Springs, WV
Senate
H. Truman Chafin (D)
Williamson, WV
Lloyd G. Jackson, II (D)
Hamlin, WV
William R. Wooton (D)
Beckley, WV
Joseph Allegretti to Speak
At St. Thomas More Catholic Lawyers' Society Seminar
When Joseph Allegretti told a
friend he was writing a book on the relationship between
religious faith and the practice of law, his friend replied,
"But Joe what will you do with the rest of the page?"
For many lawyers, reconciling our
faith with our practice is not a laughing matter. We may feel
torn between church on Sunday and the office on Monday.
Allegretti, who will speak to the
Saint Thomas More Catholic Lawyer's Society on May 15 in
Charleston, can offer lawyers insight into reconciling these two
worlds.
Allegretti is the author of the
acclaimed book, "The Lawyer's Calling: Christian Faith and
Legal Practice." Allegretti, an ethics professor at
Creighton University Law School with a Masters from Yale Divinity
School, says he wrote the book because lawyers are in a time of
crisis. "Held in low public esteem, today's lawyers find it
increasingly harder to get a sense of meaning and fulfillment
from their work," Allegretti explains.
Despite the negativity surrounding the
legal profession, Allegretti finds that lawyers are no different
than other people. "They want to have a successful career,
provide for their family, and contribute to their community and
their world," Allegretti says. "They want to be both a
good lawyer and a good Christian." Allegretti insists it is
possible to be both.
In reaching this conclusion,
Allegretti does not write in abstracts or give lawyers the easy
way out. The Christian lawyer is first and foremost a Christian.
Allegretti observes that some lawyers
see no conflict between faith and the law. These lawyers see
themselves as amoral technicians who abdicate religious
responsibility to act as hired guns. Other lawyers recognize the
conflict, but still lead compartmentalized lives.
For Allegretti, the lawyer who leads a
compartmentalized life is unlikely to find true meaning in the
"practice" of law, which Allegretti urges us to view as
a "calling."
"In the long run, bringing
religious values into the workplace can make us more satisfied.
If we try to live totally separate lives, it can self
destruct," says Allegretti.
He urges lawyers to embark on a new
way of thinking. Lawyers should not function as unthinking hired
guns, who do a client's bidding without moral reflection. Lawyers
should enter into a "covenant" with their clients. They
should be prophets to their clients and healers of conflict.
Lawyers should look at justice as not only a matter of rights,
but as a matter of caring.
Allegretti gives us concrete examples of how we can function as faith filled lawyers. He bases his examples on religious parables and principles. For example, he explains when to mediate
and when to litigate, by applying principles from the Catholic
Church's just war doctrine.
The thought of high powered lawyers
foregoing litigation fees after an analysis based on the just war
doctrine may not be realistic, Allegretti admits. But he says
that more often, lawyers are not only talking about doing well,
but doing good.
In trying to transform their work to
encompass their faith, Allegretti recognizes that many lawyers
are not in the position to make immediate, dramatic changes.
Regardless of the situation, Allegretti says, "The Christian
lawyer must know when to draw the line."
Lawyers may need support in drawing
the moral line, and the legal profession is responding. "The
legal profession is beginning to recognize that lawyers are
concerned with ethical issues beyond the legal code,"
Allegretti says. State bar associations, like West Virginia's,
are supporting forums for lawyers to discuss issues of faith and
work.
Lawyers will continue to struggle with
conflicts between faith and the law. Allegretti does not claim to
have all the answers. But for him, the fact that lawyers are now
asking the questions brings hope to the profession.
Mr. Allegretti will be discussing his
book, as well as moral and ethical issues facing lawyers today,
on May 15 at 6:30 p.m. at Charleston Catholic High School's
Palladian Hall. A reception will proceed and follow his
discussion. The cost of attendance will be $50 for Saint Thomas
More Society members and $60 for non-members. Those who attend
will earn 1.0 legal ethics continuing legal education credits.
For more information, please contact Nick Casey, Esq., at P. O.
Box 3744, Charleston 25337 or (304) 345-2000.
About the Author: Ms Mensore is a
graduate of Washington & Lee University School of Law and was
admitted to practice law in 1993. She also holds a Masters in
Journalism from Northwestern University and an undergraduate
degree from the University of Notre Dame. She is an Assistant
Attorney General for the State of West Virginia.
Leading Lawyers:
An E ssay On Why Lawyers Lead in America
by David C. Hardesty, Jr., J.D.
President, West Virginia University
Lawyers lead in America, and always have! Abraham Lincoln, for
example, assumed numerous positions of leadership during his
career. In fact, Donald T. Phillips' popular recent book on
Lincoln and leadership1 prompted me to begin thinking about the
subject of this article - lawyers who lead - and hence the title,
"Leading Lawyers." What sparked my interest in the
topic is the number of instances in which lawyer-leaders are
found outside the profession. One would expect to find lawyers
leading law firms, the judiciary, the Adjutant General's offices,
the Attorney General's Offices, corporate law departments, law
schools and the offices of public defenders. But colleges and
hospitals? Banks and labor unions? Industry and business?
In the introduction to his definitive text book on the law of
property, A. James Casner of Harvard Law School writes: "It
is an observable fact that through some combination of
chromosomes and professional training lawyers tend to come to the
top of the barrel in the shaking and jolting of competition for
authority."2 Consider for a moment the wide variety of
fields in which lawyers lead or have led in America: government,
politics, diplomacy, business, higher education, societal reform,
the volunteer sector, the nonprofit sector, business and
industry, and labor organizations, to name just a few. In nearly
every field, lawyers have risen to the occasion and provided that
elusive spark we call "leadership."3
The literature of leadership is proliferating, happily, and
helping us to understand what leadership is and why it comes
about.4 Some of the work is serious scholarship and directed
towards those who are serious students of the subject, such as
college teachers and scholars, think tanks and strategic planning
offices around the country. More is popular writing, designed to
feed a national preoccupation with new leadership skills, traits
and habits.
Why do lawyers, regardless of their gender, race, socioeconomic
background, ethnic origin, and law school often find themselves
in a position to lead? What follows is a speculative list of
suggestions that begin (but only just begin) to answer the
question.
First, leaders must be able to think clearly, and most do. Legal
education and the practice of law foster thinking skills, across
a lifetime. The ability to comb through documents, analyze oral
presentations, and evaluate physical evidence, looking for
"truth," often translates itself into marketable skills
for the leader. Moreover, since law schooling is in large measure
an academic exercise, the notion that fashioning complex abstract
ideas and translating them into action can be accomplished by the
same person is not uncomfortable to lawyers.
For years, in many law schools, first
year students were asked to read K. N. Llewellyn's essay
(originally lectures) on our law and its study, The Bramble
Bush.5 Llewellyn introduced law students to a variety of topics
related to the study of law, one of which was the important role
that logic plays in successful lawyering. Consider this passage
from his essay:
The rules that you derive from putting cases together are therefore rules not merely of description but of ought, major premises from which one concludes that if the rule is correct, a particular further case ought to be so decided and not otherwise; to which is added
an implication in fact that the judge in a future case will be
on his job.
Now on the
level of predicting what will in fact come to pass, clearly there
are three places to attack your rule as you thus set it up. One
may attack it by challenging your logic: you have slipped in your
reasoning.... [o]r you may have so built your alleged rule that
it fails to cover some of the cases before you, or cover some of
them contrary to their holdings.... [o]r, and finally, one may
attack you on your implication about future judges; you may have
picked a premise perfectly all right and yet your future judge
may kick over the traces.6
Not all commentary about how lawyers are
taught to think is so esoteric. Consider the following passage
from The Making of the Country Lawyer, the autobiography of a
noted trail lawyer Gerry Spence, who asserts there may be a
lawyer's way of analyzing problems:
I listened to
the dean's initiating speech with mounting anxiety so heed my
words, gentlemen - there were two women in the class - and learn
to think like lawyers. Then he cast us his most generous smile,
and bestowed on us his first assignment in contracts.
Think like
lawyers the dean had said. I wondered how a lawyer was supposed
to think. Logically, without passion, I supposed. Think with
thoughts unconnected to emotions. Drive out all feelings for law
was a science and science was feelingless law was law. And, like
science, law could not be understood by the unscientific mind. I
therefore set out to think like a lawyer."7
Second, lawyers learn to communicate: in
writing, orally, and non-verbally. The closing argument, the able
brief, the serious interview, the gestures in cross examination,
and other activities continuously hone a lawyer's communications
skills. Like critical thinking, these skills often improve during
the course of a career. Think of the Gettysburg address as an
opening argument, made in an effort to heal a nation bound up in
a potentially catastrophic civil war.
Howard Gardner of Harvard University
argues persuasively that communicating, primarily through stories
and examples, is the primary tool of leadership. He defines
leaders as ôpersons who... markedly influence the behaviors,
thoughts and/or feelings of a significant number of their fellow
human beings."8 Gardner emphasizes again and again the
importance of storytelling in leading, citing numerous examples
of effective story- telling as effective leading when accompanied
by actions embodying the story told.
Moreover, good communicators are
attracted to the law. Again, Gerry Spence:
I had never known a lawyer, never met one, never seen one, even at a distance. No lawyers ever went to the Methodist Church so far as I knew. I had never been in a courtroom. I had no idea what lawyers did. I had never heard of Clarence Darrow. But Abraham Lincoln was a lawyer, and he had become president, and so were Jefferson and Madison, and I thought Roosevelt was probably a lawyer, too. All great men were lawyers.I had never heard of a doctor or veterinarian or a teacher or a preacher who became president. Even when my voice was cracking like a one celled radio at three in the morning, my speech teacher, Miss Velma Linford, insisted that I possess this wonderful voice, and that someday I would become a great public speaker. I believed her...lawyers speak in the public. They
speak to juries and they become politicians and speak to whole
crowds of people. So, on analysis, there wasn't any doubt about
it: the law was for me.9
Lawyers are lifetime learners.
Further, law and leadership both reward a classic liberal
education, although one is not required for either. Knowing
something about history, government, philosophy, economics,
science, math, foreign language and cultures, and similar core
courses is not necessary, but is useful for both practicing
lawyers and leaders. Perhaps this is because both must learn
across their lifetimes. Perhaps it is because lawyers and leaders
must relate well to numerous constituencies.
Of course, the ability to think and
communicate well are closely related. Consider a portion of
Professor Casner's charge to first year students, wherein he
comments on a lawyer' ability to think and communicate more
effectively as a result of legal training:
A lawyer's usual
field of operation is one in which the legal ingredient is large,
and to this ingredient the lawyer brings professional knowledge
as well as the basic abilities; but the fact that the nonlegal
ingredient is frequently dominant and the further fact that the
situations in which a lawyer's help is solicited are many and
varied give the lawyer the habit of tackling new problems with
confidence and skill, regardless of their nature.
Our listing of the basic qualities is
the following:
1. Fact
consciousness. An insistence upon getting the facts, checking
their accuracy, and sloughing off the element of conclusion and
opinion.
2. A sense
of relevance. The capacity to recognize what is relevant to
the issue at hand and to cut away irrelevant facts, opinions, and
emotions which can cloud the issue.
3. Comprehensiveness.
The capacity to see all sides of a problem, all factors that bear
upon it, and all possible ways of approaching it.
4. Foresight.
The capacity to take the long view, to anticipate remote and
collateral consequences, to look several moves ahead in the
particular chess game that is being played.
5. Lingual
sophistication. An immunity to being fooled by words and
catch phrases; a refusal to accept verbal solutions which merely
conceal the problem.
6. Precision
and persuasiveness of speech. That mastery of the language
which involves (a)
the ability to state exactly what one means, no more no less, and
(b) the ability to reach others
with one's own thought, to create in their minds the picture that
is in one's own.
7. And
finally, pervading all the rest, and possibly the only one that
is really basic: self-
discipline in habits of thoroughness, an abhorrence of
superficiality and approximation.
These are not
qualities which spring naturally from family background plus a
liberal arts education. You will be shocked at your deficiencies
in all of them as your professors
will point them out. But be not dismayed, for the qualities
can be acquired and developed; and the law schools of this
country are in the business of doing precisely that.10
Third, lawyers, generally speaking, have
a knowledge, however rudimentary, of the structure of leadership
institutions: the branches of government, the rules of conducting
business, and normally, the difference between right and wrong.
They get this information in law school and by practicing law,
and it is cumulative. For decades, one well known capstone course
at Harvard Law School was called "The Legal Process."
It was taught over the years by Dean Sacks and a number of other
guiding lights of the law. In it, lawyers were taught to discern
the most appropriate forum for law making (the legislature, the
courts, administrative bodies, etc.) and asked to debate the most
appropriate forum for dispute resolution of various types of
issues.11
Lawyers also are able to cross over and
into other "domains of expertise,"12 meaning that their
work often puts them in contact with and gives them empathy for
persons working in fields other than law. This talent increases
as lawyers practice their profession. The counsel who is asked to
draft an agreement between a contractor and a local government,
for example, has to empathize with the cultures of both to do a
good job. The litigator, during the course of her career, might
obtain an intimate view of, and often come to understand, the
true nature of dozens of occupations.
Next, for many lawyers, there is a
convergence of public and private interests in leadership
activity. For example, activities like serving on a school board,
doing a talk show, or leading a citizens reform effort lead to
name recognition in a jurisdiction which often overlaps with the
public forums that contain potential clients. Before lawyer
advertising, leadership activities were considered legitimate
ways to become better known.
Further, men and women with charisma
often self select into the profession, in the way that those
skilled in math select engineering or those with a proclivity in
science become doctors. The reasons men and women have or don't
have charisma are mysterious, and must include both innate and
learned talents to motivate others, serve others and communicate,
whether acquired before or after attending law school. What is
charisma? In the words of two authors (writing about the college
presidency):
Charismatic
leadership, the single most effective form of leadership is based
on the admiration and liking that people feel toward an
individual. The charismatic leader has an extraordinary ability
to inspire trust and confidence... This is not the charisma of
divine inspiration, a special gift, grace, or talent that some
have and most have not, but rather a quality of trust and
confidence that almost anyone can honestly cultivate.
Despite
popular opinion, charisma and public presence are neither genetic
nor intuitive, but simply the ability to inspire trust and
confidence. Bass, in his authoritative Bass and Stogdill's
Handbook of Leadership...concludes that charismatic behavior can
be taught and learned andpublic presence developed. Anyone of
reasonable intelligence and high motivation can develop
charismatic characteristics. Age, gender, race, height, weight,
and other obvious personal characteristics have little or nothing
to do with the ability to develop and use charismatic influence.
Virtually anyone of reasonable intelligence and strong motivation
can accomplish it.
Many factors
contribute to charisma: sincerity, appearance, focus, confidence,
wisdom, courage, sensitivity, discipline, vision, reliability,
and strength...13
Next, busy lawyers, like busy leaders,
learn to manage numerous initiatives at the same time. Executive
education courses sometimes include ôin-boxö exercises which
teach students to learn from and manage written information they
receive. Billing by the hour, working on a number of matters
simultaneously and being able to change thought patterns quickly
are talents which are useful to busy executives and to
lawyersùand hence to leaders.
There is, of course, the fact that
lawyers hold a special status in society. The status is conferred
by state and federal law, normally after completion of an exam,
and sometimes after an apprenticeship. Interestingly, the exam
which makes one eligible for the status is called "the
bar," albeit for reasons other than its implied exclusivity.
Despite their protestations to the contrary, Americans tend to
accept status as one criterion of leadership, whether gained by
credentials, wealth, fame or other means. Status, of course, is a
two way street, and no doubt every new member of the bar has some
sense of obligation that attends the granting of his or her
status as a "member of the bar."
Lawyers have held special status in
America since its founding. The status of the profession was
noted by Alexis de Tocqueville in his famous treatise on American
society, in which he speculated as to why lawyers achieve such
status:
The special
information that lawyers derive from their studies insures them a
separate rank in society, and they constitute a sort of
privileged body in the scale of intellect. This notion of their
superiority perpetually recurs to them in the practice of their
profession; they are the masters of a science which is necessary,
but which is not very generally known; they serve as arbiters
between the citizens; and the habit of directing to their purpose
the blind passions of parties in litigation inspires them with
certain contempt for the judgment of the multitude. Add to this
that they naturally constitute a body; not by any previous
understanding, or by any agreement that directs them to a common
end; but the analogy of their studies and the uniformity of their
methods connect their minds as a common interest might unite
their endeavors.
The government of
democracy is favorable to the political power of lawyers; for
when the wealthy, the noble, and the prince are excluded from
government, the lawyers take possession of it, in their own
right, as it were, since they are the only men of information and
sagacity, beyond the sphere of the people, who can be the object
of popular choice. Lawyers belong to the people, and to the
aristocracy by habit and tastes; they may be looked upon as the
connecting link between the two great classes of society.
In American there
are no nobles or literary men and the people are apt to mistrust
the wealthy; lawyers consequently form the highest political
class and the most cultivated portion of society. If I were asked
were I would place the American aristocracy, I should reply
without hesitation that it is not among the rich, who are united
by no common tie, but it occupies the judicial bench and the
bar.14
Obviously, leaders must also deal with
disputes relating to personnel, policy, vision and interpretation
of rules and regulations. If lawyers traffic in anything, it is
dispute resolution in the
courts, mediation, arbitration, and the like, and dispute
avoidance (through good contracting).
Again, consider the sage advice of Llewellyn advising young
lawyers:
What, then, is
this law business about? It is about the fact that our society is
honey combed with disputes. Disputes actual and potential;
disputes to be settled and disputes to be prevented; both
appealing to law, both making up the business of law. But
obviously those which most violently call for attention are the
actual disputes, and to these our first attention must be
directed. Actual disputes call for somebody to do something about
them. First, so that there may be peace, for the disputants; for
other persons whose ears and toes disputants are disturbing. And
secondly, so that the dispute may really be put at rest, which
means, so that a solution may be achieved which at the least in
the main is bearable to the parties and not distinguishable to
the lookers-on. The doing of something about disputes, the doing
of it reasonably, is the business of law. And the people who have
the doing and charge, whether they be judges or sheriffs or
clerks or jailers or lawyers, are the officials of the law. What
these officials do about disputes is, to my mind, the law
itself.15
There are many, many more similarities
and overlapping skills and aptitudes that lawyers and leaders in
a variety of contexts share: the ability to work collegially, the
ability to organize, media relations skills, an ability to work
without close supervision, and so forth. The list goes on and on.
Of course, not all lawyers lead. Some
simply do not have the opportunity. I seem to remember that Homer
said "Fate is that thing no man born of woman can
escape." Tolstoy urges us to never underestimate
"providence":
When an apple
has ripened and falls, why does it fall? Because of its
attraction to the earth, because its stalk withers, because it is
dried by the sun, because it grows heavier, because the wind
shakes it, or because the boy standing below wants to eat it?
Nothing is the
cause. All this is only the coincidence of conditions in which
all vital organic and elemental events occur. And the botanist
who finds that the apple falls because the cellular tissue decays
and so forth is equally right with the child who stands under the
tree and says the apple fell because he wanted to eat it and
prayed for it. Equally right or wrong is he who says that
Napoleon went to Moscow because he wanted to, and perished
because Alexander desired his destruction. In historic events,
the so-called great men are labels giving names to events, and
like labels they have but the smallest connection with the event
itself.
Every act of
theirs, which appears to them an act of their own will, is in an
historical sense involuntary and is related to the whole course
of history and predestined from eternity. 8
Perhaps more to the point, however, is
the fact that like other occupations and professions, law today
fosters significant specialization, sometimes resulting in a
narrowness of purpose and outlook, an unwillingness to empathize,
and motivation to excel in a field rather than promote the
public's interest through public service or other leadership
activity. There are other barriers to a
lawyer's entry into the arena of leadership as well: lack of
vision and motivation, fear of technology, lack of independent
thinking, the lure of lucrative work within the profession, and
the psychic income of serving clients within the confines of the
lawùone of the major domains of expertise that has its own
status and remunerations within our society.
Suffice it to say, however, that
lawyers often lead, skillfully crossing domains of expertise to
motivate and guide others to act in their own self interests. And
they are likely to continue doing so in America. Furthermore, the
need for lawyers to lead has never been greater, given the
complexity of the modern marketplace, the importance of good
leadership to capitalism, and the fragmentation of society's
values and visions.
Shouldn't society, through bar and law
school activities, be made aware of the skills lawyers can bring
to bear in circumstances requiring leadership? Can't lawyers
begin to project to the general population the imagery of
"servant leader" in the same way as M.B.A. degree
holders promote themselves as "excellent managers?" In
recent years, attempts to restore faith in the legal profession
have fostered a wide variety of programs, from stricter ethical
requirements to media campaigns designed to improve the image of
lawyers. Perhaps public recognition that
lawyers are well qualified to serve as leaders, and try to do so
ethically, can help restore trust in the profession, making it
one of the recognized bridges between domains of expertise in our
society.
Lawyers are part of the glue that holds
America together: not just in the court room, but in the board
room, the schoolroom, the community center, the legislature, the
executive mansion, and academe as well . Lawyers have always led.
Let's recognize that fact, clearly, and assert that they always
will, because they are prepared by their inclination and training
to do just that!
Endnotes:
1 Donald T. Phillips, Lincoln on Leadership: Executive
Strategies for Tough Times (1993).
2 A. James Casner & W. Barton Leach, Cases and Text on
Property 2 (Assisted by Donald S. Snider, 3d ed. 1984).
3 Congressional leaders (Senator Robert C. Byrd, Congressmen
Bob Wise and Alan Mollohan), diplomats (John W. Davis),
college presidents (Gordon Gee, the author), state
legislators (e.g., Speakers of the House of Delegates,
Robert Kiss, Charles Chambers, Clyde See, Joseph P.
Albright), volunteers (John McClaugherty, John Hoblitzell,
Sue Farnsworth, Cathy Armstrong, David Todd), business
leaders (A. Michael Perry, Ralph Bean), labor leaders
(Davitt MacAteer), and many, many other members of the bar
have put their leadership talents to work on behalf of
others in West Virginia.
4 For an excellent copilation of readings on leadership,
see J. Thomas Wren, The Leaders Companion: Insights on
Leadership Through the Ages (1995).
5 K.N. Llewellyn, The Bramble Bush: On our Law and Its Study
(5th prtg. 1975).
6 Id at 71.
7 Gerry Spence, The Making of a County Lawyer p 224 (1996).
8 Howard Gardner, Leading Minds: An Anatomy of Leadership
p 8 (1995).
9 Spence, supra note 7, at 147-148.
10 Casner & Leach, supra note 2, at 2-3.
11 The materials have now, fortunately, been published. See
Henry M. Hart, Jr. & Albert M. Sacks, The Legal Process:
Basic Problems in the Making and Application of Law (1994).
12 I have borrowed this concept from Gardner. See supra note
4, above.
13 James L. Fisher & James V. Koch, Presidential Leadership:
Making a Difference, 38, 41 (1996).
14 1 Alexis deTocqueville, Democracy in America 273, 275-76,
278 (EverymanÆs Library, Knopf 1993).
15 Lewellyn, supra note 5, at 12.
8 Leo Tolstoy, War and Peace, reprinted in Wren supra note
4, at 58-59.
1947-1997
50th Anniversary Annual Meeting
Extravaganza
Come Join the Fun!
FRIENDS OF THE BAR ACTIVITIES
A Champagne Brunch will begin
at 9:30 a.m. on Friday morning. Max Reiser, of the Tack Room at
the Grey Fox Farm in Bridgeport, WV, will be hosting an
informative session on elegant integration of garden and home.
His innovative techniques will be sure to delight.
CONTINUING LEGAL EDUCATION
This year's Annual Meeting will
host over 17 hours of continuing legal education credits to
choose from, 6.2 of which can be earned in ethics or office
management credits. Where else are you able to find so many hours
at the very low price of only $125? Some of the interesting and
topical CLE seminars being offered this year are:
Ethics and Professionalism -
This seminar has long been the anchor of the State Bar's Annual
Meeting. Sponsored by the Young Lawyers Section, Bob Minto,
President of ALPS, heads up an outstanding presentation. He is a
dynamic speaker and his innovative approach to the subject of
legal ethics will keep you enthralled.
Elimination of Court Backlogs and
Delays by the Use of ADR, Mediation, Telephonic Hearings and
Other Techniques - Elimination of Court Backlogs and
Delays by the Use of ADR, Mediation, Telephonic Hearings and
Other Techniques - Mediation and other alternative dispute
resolution methods are being ordered more and more often by
circuit court judges and are even required, prior to a hearing,
by some insurance companies. To find out more about mediation/ADR
and the impact that it's going to have on your law practice, no
matter what type of practice it is, you should attend Harry
Deitzler's presentation on this most important topic. Sponsored
by the WV Trial Lawyers.
State of the Judiciary - Chief Justice Margaret Workman
will be the feature speaker at the State Bar's Bench/Bar Luncheon
on Friday. Providing insight into the current court structure,
how the court system is changing and what lawyers can do to
prepare for those changes, will be the focus of Chief Justice
Workman's presentation.
The Following Seminars Have Been Approved for MCLE Credit
in WV. Please Contact the Sponsor For More Information at the
Telephone Number Listed With Each Activity.
4/2/97 Comprehensive
Solutions, "Intellectual Property,"
Charleston,
304/342-1600, 4.20 credits
4/4/97 Professional
Education Systems, Inc., "WV Elder Law,"
Charleston,
715/836-9700, 7.20 credits, including
0.40
ethics
4/5/97 Office
of Chief Medical Examiner, "12th Medicolegal
Investigation
of Death Seminar," Morgantown, 304/285-3133,
9.50
credits
4/11/97 Professional
Education Systems, Inc., "Winning the Battle of
the
Experts," Charleston, 715/836-9700, 7.20 credits,
including
0.20 ethics
4/15/97 National
Business Institute, Inc., "Fundamentals of Water
Law
in WV: Protecting Water Rights, Use and Quality,"
Charleston,
715/835-7909, 7.20 credits, including 1.0 ethics
4/18/97 National
Business Institute, Inc., "Counseling the Small
Business
Client in WV," Charleston, 715/835-7909,
8.0
credits
4/23/97 National
Business Institute, Inc., "Nursing Law in WV,"
Charleston,
715/835-7909, 7.20 credits, including 1.0 ethics
4/25/97 WVCLE,
"Children in the Courtroom," Charleston, 304/293-7255
4/25/97 National
Business Institute, Inc., "Trying the Wrongful
Death
Case in WV," Charleston, 715/835-7909, 7.20 credits,
including
1.0 ethics
4/29/97 National
Business Institute, Inc., "School Law in WV,"
Charleston,
715/835-7909, 7.20 credits, including 1.0 ethics
4/29-30/97 WV Manufacturer's
Association, "Environmental Compliance
Conference,"
Charleston, 304/342-2123, 10.20 credits
5/2/97 WVCLE,
"Damages," Charleston, 304/293-7255
5/6/97 The
West Virginia State Bar, "Legal Ethics CLE,"
Martinsburg,
304/558-1044, 3.20 ethics credits
5/7/97 The
West Virginia State Bar, "Legal Ethics CLE," Fairmont,
304/558-1044,
3.20 ethics credits
5/8/97 Professional
Education Systems, Inc., "WV Workers'
Compensation
Law," Charleston, 715/836-9700, 7.50 credits,
including
0.60 ethics
5/9-10/97
The West Virginia State Bar, "1997 Annual Meeting,"
Charleston
Civic Center, 304/558-2456, 15.0 credits,
including
possibly 6.20 legal ethics/law office management
credits
5/13/97 Medical
Educational Services, "Medicaid and Medicaid
Planning
in WV," Charleston, 414/798-5242, 6.30 credits
5/16/97 WV
Network of Ethics Committees, "Moving Beyond - There's
Nothing
More We Can Do - To Providing Quality Care at the
End
of Life," Morgantown, 304/293-7618, 7.20 credits
5/17/97 WVCLE,
"Wills and Estates," Charleston, 304/293-7255
5/17-24/97 American Bar
Association, "11th Annual Family Law Advocacy
Institute,"
Houston, TX 312/988-5603
5/20/97 Professional
Education Systems, Inc., "More Medicine Made
Easy
- Part II," Charleston, 715/836-9700, 7.20 credits
5/23/97 WVCLE,
"Social Security Issues," Charleston, 304/293-7255
6/4/97 Legg
Mason, "The New Pension Simplification Act,"
Morgantown,
304/232-7333, 8.40 credits
6/5/97 Lorman
Business Center, "Collection Law in WV," Charleston,
715/833-3940,
4.50 credits
6/5-7/97 WVTLA,
"Annual Seminar," Charleston, 304/344-0692
9
6/11/97 Lorman
Business Center, "WV Insurance Law - Bad Faith
Claims,"
Charleston, 715/833-3940, 4.50 credits
6/18/97 Professional Education Systems, Inc., "WV Evidence Workshop," Morgantown, 715/836-9700, 7.20 credits, including
1.20
ethics
6/19/97 Professional
Education Systems, Inc., "WV Evidence
Workshop,"
Charleston, 715/836-9700, 7.20 credits, including
1.20
ethics
6/26/97 Lorman
Business Center, "Union Organizing Under the National
Labor
Relations Act," Charleston, 715/833-3940, 4.50 credits
7/16-17/97 The West Virginia
State Bar, "Basic Mediation Training,"
University
of Charleston, 304/558-1044
8/8/97 The
West Virginia State Bar, "Advanced Mediation Training,"
Days
Inn-Flatwoods, 304/558-1044