The West Virginia Lawyer
August 1996 Issue
| President's Page | TechTalk |
| Dean's Column | Letters to the Editor |
| YLS Section | Feature Articles |
| Tinder Box | CLE Calendar |
POLICING OUR PROFESSION - PROTECTING OUR INTEGRITY
THE BAR'S ROLE
by Richard E. Ford, Jr.
It is my belief that the single most important function of the State Bar is the self-policing of our profession. Article II of the State Bar Constitution provides that "the objects of the West Virginia State Bar shall be to protect the interests of the public; ..." Certainly the primary means by which this objective is accomplished is through the lawyer discipline process.
By Order approved May 25, 1994, the Supreme Court of Appeals created the Lawyer Disciplinary Board and adopted rule modifying the discipline process and superseding the provisions of Article VI of the By-Laws of the West Virginia State Bar. The Board consists of nineteen members, thirteen of whom are active members of the West Virginia State Bar. The Board consists of nineteen members, thirteen of whom are active members of the West Virginia State Bar and six of whom are members of the public. This Board took the place of what previously had been known as the Committee on Legal Ethics of the West Virginia State Bar, and operates independently from the State Bar with the exception that the Bar appoints the members of the Board and approves the budget for the Office of Disciplinary Counsel.
The primary purpose of the Board is not punishment of lawyers, but rather the protection of the public and the reassurance of the public as to the reliability and integrity of attorneys Committee on Legal Ethics v. Ikner, 190 W.Va. 133, 438 S.E.2d 613 (1993).
Recently, Tom Tinder and I had the opportunity to meet with Kemp Morton, Chairperson of the Lawyer Disciplinary Board, Sherri Goodman, Chief Disciplinary Counsel, and Ancil Ramey, Clerk of the West Virginia Supreme Court of Appeals. The purpose of the meeting was to review the progress of the Lawyer Disciplinary Board. It was the first of several such meetings that I, as State Bar President, will attend for this purpose. The Bar and the Court meet periodically with the Chairperson of the Lawyer Disciplinary Board and Chief Disciplinary Counsel in an effort to keep each entity generally informed as to the operation of the system.
I must confess that I was, alternatively, impressed, surprised, and troubled by some of the information provided by the Court and the Office of Disciplinary Counsel. Based upon data collected over the past five years, it appears that the average number of complaints received by the Office of Disciplinary Counsel generally ranges between 450 and 500 per year. In 1995, the Lawyer Disciplinary Board closed 620 cases, thanks to yeoman's efforts of Steve Jory, immediate past-chairperson of the Lawyer Disciplinary Board, and Sherri Goodman, Chief Disciplinary Counsel, and her staff.
At present, there are approximately 395 active complaints against West Virginia lawyers, 205 of which have been filed this year. Of those, 182 have been pending for less than six months and only 58 have been pending for more than 18 months. The Lawyer Disciplinary Board and Office of Disciplinary Counsel have closed 265 complaints this year and provided informal ethics advice on 392 occasions.
I recently spoke with Fred Smith, one of the laypersons whom I appointed to the Lawyer Disciplinary Board, and he indicated that prior to his first meeting, he was provided with a notebook detailing 90 complaints which the Investigative Panel dealt with during his first meeting. He was impressed by the organization and the efficiency of the Office of Disciplinary Counsel, as well as the dedication and diversity of the membership on the Investigative Panel of the Lawyer Disciplinary Board.
The profile of the "offending lawyer" presented by the Office of Disciplinary Counsel was surprising. Of the lawyers disciplined by the Supreme Court of Appeals in 1995, 73% were solo practitioners and 80% of the lawyers disciplined had been in practice for more than 10 years. The primary type of ethical violation resulting in discipline was lack of diligence, followed by financial irregularities, conflicts of interest and dishonesty.
By a wide margin, most of the disciplinary complaints filed in 1995, dealt with lack of diligence and failure to communicate and, perhaps not surprisingly, the areas of practice giving rise to the greatest number of complaints were domestic relations and criminal law.
The profile of the offending lawyer was somewhat troubling because it clearly demonstrates that the solo practitioners and small firm lawyers are the most likely to have discipline problems. As a small firm lawyer, providing some meaningful benefit to small firms and solo practitioners is one of my major objectives during my year as Bar President. It is my hope that programs can be implemented to help provide means for the solo and small firm practitioners, as well as other lawyers throughout the state, to avoid many disciplinary complaints by helping to improve office systems for tracking, calendaring, and docket control. In addition, establishing mentors and using the District Grievance Committees more broadly than merely for fee disputes may provide a means for resolving attorney-client problems before they reach levels which result in the filing of ethical complaints.
The Solo and General Practitioner Committee has spearheaded the creation of a Mentor-Advisor Program which will establish at least one lawyer in every county who is willing to serve as a mentor or advisor for any lawyer needing advice, but particularly for solo practitioners who do not have the luxury of walking down the hall to ask a partner for advice and guidance. This program should provide substantial benefit to a segment of our Bar in most need of assistance and support.
The Young Lawyers Section and the Solo and General Practitioners Committee are working on a West Virginia Rural and Solo Practitioner Handbook which should be published shortly and will provide a wealth of helpful information to lawyers setting up their own offices and struggling to keep those offices running. Also, the Young Lawyers Section has just completed the Fourth Edition of the West Virginia Practice Handbook which is a tremendous resource for concise information on a host of areas of practice.
Additionally, it is my hope to utilize the TechNet System to provide a means for every lawyer in the State to have access to office management and risk management assistance by way of self audits and systems evaluations. With the help of ALPS and Lawyers Mutual Liability Insurance Company of North Carolina, we hope to be able to provide self audit forms for various office systems which can be downloaded and used to evaluate office systems through a series of checklists and forms.
I am committed to attempting to provide meaningful benefits to the solo practitioners and small firm lawyers in West Virginia who, based upon the statistics available, are the most likely to run afoul of the disciplinary system. It is my sincere hope that the State Bar can provide assistance and the tools necessary to enable small law offices to improve their risk management, time management, docket control, and communications systems so that the 1996 statistics from the Lawyer Disciplinary Board and the Office of Disciplinary Counsel reflect positive changes for the solo and small firm practitioners.
Dean's Column
by Dean Teree Foster
This month's column is excerpted from the address presented by 1996 Professor of the Year, John W. Fisher, II, to the Class of 1996 at the May 11 Hooding Ceremony.
We gather here on a rainy Appalachian Spring day to present the members of the Class of 1996 with the symbol of their graduation -- a hood emblazoned with purple which signifies the high rank of law and the gold and blue of our University. It is a joyous occasion, a day to cherish and a day to remember. It is also a day that causes those of us who are asked to speak to seek an appropriate theme to search for the right words. We turn to the poets and to the authors in search of inspiration, and we seek comfort in the words of others.
As hard as we to instill a bit of humor into our remarks, it is perhaps left undone. Attempts at humor are often awkward or out of place; and sometimes, what may be funny to one person is offensive to another. The English poet Percy Bysshe Shelley set forth in verse the nature of the two-edged sword of humor as follows:
We look before and after
and pine for what is not;
Our sincerest laughter
with some pain is fraught;
Our sweetest songs are those that tell of saddest thought.
In other words, the Rule of Shelley in such case is that one should not seek laughter at the expense of another. Shelley did not say anything about a bad play on words.
While we gather here today for the common purpose of celebrating the graduation of the members of the Class of 1996 from the College of Law, to each of us this day has special significance. For the family and friends of our graduates, this is a day of enormous pride, one on which hopes have been realized and dreams and promises fulfilled. You, the family and friends, have supported the graduates both emotionally and financially, and your plans have been preempted by the demands placed upon them by their studies. It is the family and friends of those we honor today whose sacrifice and unselfishness has helped to make this day possible for our graduates.
For the faculty, today signifies the end of another cycle in the academic life of the College of Law. For three years, these graduates were our students; they became a part of our lives. We learned from them at the same time we taught them. We rejoiced in their achievements and successes and shared their disappointments. They have been part of our community; they enriched it by their presence, and they leave it a better community today than it was when they first joined us.
While family, friends and faculty share the joy and satisfaction of this day, it is the graduates that we honor. Today, we mark the end of our student-teacher relationship and welcome you, the graduates, as members of the legal profession -- you have earned the right to be called a lawyer. Reflect for a moment what that means -- as a lawyer, you assume one of the most important roles of our society. To the lawyer we entrust the duty of safeguarding our individual rights and freedom and the protection of our wealth and our property. It is a Doctrine that no Worthier Title can be bestowed upon an individual than lawyer.
There will be many opportunities for you to use your skills as a lawyer. Each -- general practitioner, large firm lawyer, public interest lawyer, prosecutor or defense lawyer, litigator, judge, legislator -- will offer rewards and present challenges. It matters not so much which type of practice of law you pursue, but rather how you pursue that practice. What will ultimately determine your true success as a lawyer is how well you fulfill your obligation in an ethical and professional manner. Never underestimate the difference that you can make in the lives of others.
Come tomorrow, the Class of 1996 will go its separate ways, and will take with them the memories of the last three years, memories that will forever be a part of them. This class also leaves memories with those of us who remain here. One of my most cherished memories will be the honor and recognition that this class has bestowed me. I will proudly hang the plaque you gave me in my office and I will always remember the Class of 1996 with affection and appreciation.
While each of you will travel your separate paths, you will all have one important thing in common. Each of you, by virtue of your training as a lawyer, will have the opportunity to touch the lives of those you serve, to make a lasting contribution to the community in which you live -- each of you will have an opportunity to make a difference. As the poet Henry Wadsworth Longfellow tells us:
Lives of great mean all remind us
We can make our lives sublime
And, departing, leave behind us
Footprints on the sands of time.
Perhaps if Longfellow had the opportunity to while away some time in his lawyer's office, he would have elected to express his thoughts about the enduring quality of good deeds performed by a person during his or her lifetime as lasting longer than twenty-one years after some life in being at the time of such good deeds because there is no Rule Against Perpetuities for good deeds.
To the Class of 1996, I hope that you find happiness, joy, satisfaction and contentment in your life and if you do, then you will have also found success. When your career as a lawyer is over, I hope that you will be able to look back upon your career content with the decisions you made along the way and satisfied that each time you had to decide which path to follow, you made the correct choice.
MARITAL BLISS AND OTHER HERCULEAN CHALLENGES
by William Rorhbaugh
SON: "Father, where is the Taj Mahal?"
FATHER: "Go ask your Mother. She puts everything away in this house."
Comedy routine aired on the BBC
I apologize if this article is a bit rough around the edges, but I have been working under difficult conditions of late. My in-laws came to visit last week, and I have been unable to locate ordinary items, such as pens and paper, ever since. You see, my mother-in-law is a consummate "organizer." There is one way, and only one way, for a house to be arranged - the Dixie way (which is subject to change at any given moment). Don't misunderstand me. I love my mother-in-law and get along with her uncommonly well, but it takes my wife (Trudy) and me a few months after a visit to re-discover essential household items, like the television remote control and our electric can opener. (Going through closets after my mother-in-law has "re-organized" gives me the same kind of thrill I experienced as a child on Christmas morning.)
Last week when my mother-in-law walked through the front door, two days earlier than expected, I knew immediately that significant changes were about to occur. The first words which my mother-in-law uttered were: "How can you two live like this?" She then proceeded to take an inventory of the kitchen where she declared: "Nothing is in its proper place." As a whirlwind of activity ensued, I mustered a few sarcastic comments such as, "Where do we file the aluminum foil, now?" And, "Which drawer did you put the cat in?" I soon succumbed to the inevitability of my situation, however. Everything would be put in its proper place.
With a Dominican cigar in one hand and my beverage of choice in the other, I repaired to the back porch with my father-in-law for the ensuing vigil. After numerous trips to my humidor and more numerous trips to my refrigerator over the next few days, the grand reorganization was finally completed. Anxiously peering into the rooms which I had once called home, I was pleasantly surprised that the basic structure of the rooms remained intact. The family room was still where I remembered it to be, the kitchen still looked remarkably like a kitchen, and the aluminum foil was only 12 inches from its pre-reorganized location. In fact, I am optimistic that we will find Rush Kitty by the end of the month. But I digress.
My experiences with my mother-in-law's organizational preferences are not unlike the experiences of many young lawyers upon joining a law firm after graduation. Regardless of what the recent graduates' writing styles may be, the more experienced lawyers with whom they work will likely have very well defined stylistic preferences which differ from their own. Whether drafting a simple complaint or an appellate brief, the new lawyers will find that they must adapt their writing styles to satisfy their employers.
I do not suggest that a young lawyer should summarily abandon the writing style which he or she developed over 19+ years of schooling, but the new associate, if shrewd, will modify his or her style to foster a more efficient employment relationship. When I was a young associate, I worked with three different partners in the same firm who had three very distinct writing styles. As a result, the product which I produced for each partner reflected his or her individual stylistic preferences. I quickly learned that style is often simply a matter of taste, and as I gained experience, I even adopted many of my mentors' stylistic preferences as my own.
Now, I just wish I could find my electric shaver. Maybe the cat is using it.
"WWW.WVBAR.ORG"
by Thomas R. Tinder
Animated and in living color, the West Virginia State Bar's Home Page is now available on the Internet!
The State Bar has now joined some West Virginia law firms, other state bar associations, the President of the United States, ESPN, the Governor of West Virginia, and probably millions of other people, companies and organizations that have their very own Home Page on the Internet. Ours is easy to remember, it is - www.wvbar.org.
When you go on our Home Page, you will see a picture of the State Bar Center, a committee meeting in progress and individual pictures of State Bar administrative staff with a listing of their responsibilities.
The information on our Home Page is interesting and diverse. It includes:
* State Bar Officers and Board Members
* State Bar Administrative Staff
* CLE Calendar and Resources
* Announcements
* Calendar of State Bar Events and Committee Meetings
The possibilities are limitless for our Home Page. We could set up direct connections to other sources of legal and general information as well as to the Home Pages of other State Bar lawyers and law firms.
Please take a look at our Home Page and give us your comments about how we can make it even better. If you do not have Internet access yet, you better get with it. In fact, we will give everyone a chance to get on the Internet in an easy to use and very economical manner. Just check out the information contained in the TechTalk Column in this issue of the West Virginia Lawyer magazine. You have no legitimate excuse to keep from joining the Internet and enjoying its many benefits. Do it today and get your own Home Page!
AUGUST 1996 LETTERS TO THE EDITOR
Dear Mr. Tinder:
I would like to express my sincerest gratitude to you and the State Bar for the effort, time and assistance you contributed to the implementation and success of our first Spring Settlement Week. Approximately 50% of the cases scheduled for mediation were settled. We plan to further develop and expand future settlement weeks, and would welcome any comments or suggestions you might have that would enhance the success of this program.
It was a pleasure working with you, and I look forward to working with you again.
Sincerely,
Herman Jones
Executive Director
West Virginia Human Rights Commission
Dear Lisa:
I very much enjoyed your article on Rich Ford. It is truly a masterpiece, catching the essence of a very good leader. Keep up the good work. I always enjoy your writing, but felt compelled to compliment you on this opus.
John Bailey, Esq.
Dear Ms. Stamm:
Perhaps it seemed a little thing but I was very moved by your last transcript in the bio of my article published in the May issue of "The West Virginia Lawyer". Maybe it is that I've never had a place to call home before, but your welcoming me back to West Virginia was an unexpected and deeply felt joy. I will always remember your kindness.
Thank you for your help in publishing the article. My best wishes that you and those near you are healthy, successful and content.
Sincerely,
Vito Mussomeli
Assistant Prosecuting Attorney
State of the Judiciary Address
by the Honorable Thomas E. McHugh
During the 1996 West Virginia State Bar
Annual Meeting
Charleston, West Virginia
April 26, 1996
This past January I began my sixteenth year as a Justice on the Supreme Court and in April of last year I began my fourth term as Chief Justice. As I reflect on my tenure, I am concerned about the public perception of the courts and the potential threats to judicial independence.
Preserving the independence of the judiciary is a matter of critical importance to our Constitutional form of government. Courts are often called upon to resolve difficult disputes involving fundamental rights of life, liberty, and property. The resolution of these bitter disagreements occasionally exposes the judiciary to public criticism. Today, blaming the courts or judges is a game played by many politicians.
Judges must frequently decide contentious cases through the interpretation of often ambiguous and sometimes conflicting constitutional, statutory, and regulatory provisions or case law. This precedent, however, is the proper role of courts. As an example, would anyone argue that it is for the executive or legislative branches, rather than the courts, to balance the conflict between the freedom of speech provisions of the first amendment and the defendant's right to an impartial trial under the sixth amendment?
The public's perception of the proper role of courts, however, shaped by what they see on television and what they read in print, is becoming increasingly distorted. Shorthand expressions like "judicial activism," "judge-made law," and "applying, not interpreting the law," or designating judges as "liberal" or "conservative," have become code words for those who seek to impose their political ideologies on an independent judiciary. Even the legitimate term "judicial restraint" has been cheapened by misuse. It is quite unfortunate that judicial campaigns have largely disintegrated into selling candidates like commercial products. Madison Avenue type slogans and packaging a product in a manner that has been market tested are used in judicial campaigns. Code words like those I have referred to are market tested. Let us refocus and stress the qualities demanded of a judge, such as legal ability, intelligence, dedication, courtesy, integrity, moral courage, impartiality, and decisiveness--qualities, I might note, sought to be measured by the recent State Bar poll. If those qualities are lacking, a person should not be given the honor of holding the office.
Most of our law is made by judges either through the centuries of decision-making that has formed the basis for the "common law," or through the interpretation of phrases like "Congress shall make no law respecting an establishment of religion," "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated," and "[N]or shall any state deprive any person of life, liberty, or property, without due process of law." What is meant by "establishment," "unreasonable," or "due process" in each of these constitutional provisions? Only judges, in the course of deciding individual controversies, can ultimately decide the meaning of these words.
Whatever one thinks of the judge's recent ruling on the admissibility of evidence in a now infamous New York drug case in federal court, we should be concerned regarding the perception that judges can be threatened with impeachment or other political retaliation whenever a decision is rendered with which someone disagrees. Since I became a Justice on January 1, 1981, through December 31, 1995, the Supreme Court of Appeals of West Virginia issued 3,699 published opinions. How many of those opinions are controversial? Media attention is only given to a minuscule number. Yet, the appearance may be that all opinions are controversial. Often the critics have not read the opinions. Certainly, there are times when a judge or a court may not have made the same decision if given another opportunity with the same facts. But, political pressures alone should not be the reason for rethinking an opinion. Circuit judges face the same dilemma as supreme court justices. A judge may be measured by only the most controversial opinions, yet he or she may have rendered hundreds and hundreds of opinions. Across our country we hear wailing about "frivolous lawsuits." In West Virginia, little attention is given to the authority, indeed the obligation, of a circuit judge to dismiss such actions and impose monetary sanctions, if appropriate.
In our own state, during the past legislative session, our court was threatened with the seizure of over one million dollars in reappropriated funds. Was that threat in retaliation for a court decision? Another statute was enacted dictating the method by which the justices of our court were to decide disqualification motions. Was that statute enacted in retaliation for a decision?
Unlike the United States Constitution, where there is no specific "separation of powers" language, W. Va. Const. Art. V, § 1, expressly provides, "the legislative, executive and judicial departments shall be separate and distinct, so that neither shall exercise the powers properly belonging to either of the others . . . ." more importantly, pursuant to the Judicial Reorganization Amendment of 1974, which consolidated the supervision of the judiciary under the Supreme Court of Appeals, W. Va. Const. Art. VIII, § 8, specifically provides, "Under its inherent rule-making power, which is hereby declared, the Supreme Court of Appeals shall, from time to time, prescribe, adopt, promulgate and amend rules prescribing a judicial code of ethics . . . ." and further that, "when rules herein authorized are prescribed, adopted and promulgated, they shall supersede all laws and parts of laws in conflict therewith, and such laws shall be and become of no further force or effect to the extent of such conflict."
Fortunately, Governor Caperton was convinced that the provisions of the bill dictating judicial disqualification procedures were in conflict with the Supreme Court's specific constitutional authority, and with the separation of powers, and vetoed the bill twice, preventing it from becoming law. We are extremely grateful to Governor Caperton for his sensitivity to the importance of judicial independence and the separation of powers. Unfortunately, because of the disqualification provisions added to the bill at the last minute, other provisions in the bill eliminating outdated language relating to appeals, which statutory language is needed, were lost when the bill was vetoed. Perhaps during a future session of the legislature, those provisions may be enacted without other, clearly unconstitutional, provisions.
The challenges that we face now and the challenges we will face over the next five or so years will test our abilities as both judges and managers of the court system. As lawyers it is so important for you to examine the forces that are causing the dramatic shifts in court activity so that we may respond to the public's needs. Certainly we must plan for even greater changes that must be made to allow us in the legal profession to address the challenges of the 21st century.
Let me briefly review some important issues with you. You have witnessed and experienced the issues I want to review. The problems we face in West Virginia are the same problems faced by every court system in the country.
Pro Se Litigation
The number of litigants coming to court without attorneys in domestic cases is rising at an alarming rate. The tremendous increase in pro se litigants has imposed additional demands on judges, the family law masters, and the staff in the circuit clerk's offices. The stressful environment often found in domestic relations cases necessitates that judges and family law masters exert greater influence and control over courtroom proceedings. Accommodating the needs of pro se litigants in domestic relations cases without losing control of proceedings or creating the appearance of favoritism is very challenging.
The issue we face is meaningful access to justice, which is often hampered by a lack of citizen understanding of the justice system and by the difficulty that litigants have obtaining effective legal assistance. The increase in pro se litigants is directly related to the cutbacks in civil legal aid for the poor in West Virginia.
Legal Aid For Those Without Adequate Income
There is an immediate problem of providing legal aid for those without adequate income because of the decline in federal support of programs for those persons. There are a number of short-term steps that can be taken to fill some of the gaps in service. Some of the legal aid offices may be combined to eliminate duplication in support staff. Certainly we should strive to increase the participation of lawyers in the pro bono program. These short-term or interim steps will not solve the problem. This is an issue that will require a long-term solution and a lot of work by all of us. The State Bar and President Tom Flaherty are to be complimented for their leadership on this matter.
Juvenile Issues
As all of you are aware, there is a growing problem with the juvenile justice system. In 1994 the National Conference of State Legislatures conducted a survey on the concerns of lawmakers. Two-thirds of the respondents reported that redesigning their states' juvenile justice systems would be a priority for 1995. More than half expected to consider legislation that would make it easier to transfer juveniles to criminal court and ease confidentiality requirements regarding juvenile arrests and conviction records. Legislators also expressed interest in increasing punishment and retribution for the most violent offenders, and providing treatment for non-violent and status offenders.
These are the same issues that our legislature has addressed for the past two years. In addition to these issues we must address the community services available to the courts and assess the facilities available to house our most difficult juveniles. We must ask ourselves what is the appropriate mix of community services and detention beds? How are we going to address the increasing number and cost of out-of-state placement of juveniles? How are we going to develop the in-state facilities to address the increasing demand for secure detention?
I do not envy the dilemma circuit judges face on a daily basis in trying to deal with these very difficult cases. The resources necessary to both protect the community and provide treatment to juveniles are simply not available or are inadequate.
Family Issues
We are rapidly reaching the point where the current court structure will not be able to adequately deal with all the issues that face families in West Virginia. Considering that divorce, domestic violence, juvenile, mental hygiene, guardianship, and abuse and neglect cases constitute almost fifty percent of the docket in many circuits, the magnitude of the problem becomes evident.
I am sure many circuit judges feel more like social workers on certain days than judges. Many of the cases involve multiple parties with multiple lawyers. Scheduling is difficult and moving the case to a final disposition is very difficult. As we look to the future, we must address the current court structure to determine if it can continue to handle these cases in an effective manner in the next century.
Court Security
For the past three years the number one issue identified at our annual Judicial Summit Meeting has been the need to increase security in our court system. The Legislature has now addressed this issue. The creation of a Court Security Board and the funding that will be provided by the increase in filing fees and court costs is a significant step forward in solving this critical problem. One of the key provisions of this legislation is the requirement that every county develop a security plan and file that plan with the Board for review. This requirement, along with the requirement that each county undergo a security audit, should help identify and resolve many of the security problems court staffs face on a day-to-day basis.
Intergovernmental Relations
If we in the legal profession are to be effective and address the issues I have outlined, it is important for us to have the support and cooperation of the Legislature and county government. In regard to this issue, the last legislative session was not one of our better sessions. There was a harsh approach to the judiciary that has not been present for the past five years. We have to rely on the legislature to assist us with the passage of appropriate and workable statutory changes. We have to rely on the county commissions to provide the support services necessary to operate the circuit courts.
These are areas that we need reflection on during the next few months as we seek better approaches. If we do not adequately address these concerns, we will waste a lot of energy defending the judiciary instead of moving forward with a positive agenda.
Local Rules
In recent years, there have been a number of local rules adopted in the various circuit courts. Many of these rules have dramatically improved the quality of justice. Obviously, it is beyond the ability of the Supreme Court to promulgate rules to govern all of the diverse administrative matters that arise at the local level. One of the problems with the piecemeal promulgation of local rules, however, has been their lack of accessibility. Both attorneys practicing within and outside of particular counties often have difficulty in ascertaining whether local rules exist governing particular matters. Accordingly, in 1994, the Supreme Court decided to conduct a comprehensive survey of the circuit courts to collect all of the local rules in effect and to publish those rules on an annual basis.
This month, a draft compilation of the local rules submitted to the Court is being mailed to the circuit judges for their final review and approval. Publication of the 1997 West Virginia Local Rules Volume is planned for November of this year. These rules will then govern local practice in the various circuits during calendar year 1997. If a local rule does not appear in this publication, it cannot be enforced during calendar year 1997. Thereafter, any local rule to be included in the West Virginia Local Rules Volume must be submitted to the Supreme Court no later than July 1 for review. We believe this will do a great deal to promote uniformity and accessibility with regard to local rules and will enhance the fairness and efficiency of our system of justice.
Professionalism
Over the past decade, almost every state has undertaken a study of the problem of a lack of professionalism among lawyers. These studies have largely been in response to a growing perception among judges and lawyers that professionalism and civility in the practice of law are on the decline.
Recent surveys of lawyers indicate that, as a consequence of this decline, the enjoyment and personal satisfaction derived from the practice of law is diminishing. The adversarial system is being distorted in a manner that brings out the worst in people, often transforming many decent lawyers, before they realize it, into the type of lawyer they most detest--one who "cuts corners" to achieve a result.
In addition, the public perception of the legal profession has declined considerably. More than ever, lawyers are seen as "hired guns," selling their services to the highest bidder, readily placing the narrow interests of their clients above the broader interests of the society which the law was designed to protect.
Many factors have contributed to the lack of civility and professionalism in the practice of law.Lawyers accuse judges of forgetting what it is like to be a lawyer. Judges accuse lawyers of failing to fully appreciate the role of judges. Both lawyers and judges accuse one another of dilatoriness and lack of preparation.
Lawyers observe that hard-nosed tactics are often rewarded, not punished. They see that "bully" lawyers occasionally gain an edge for their clients, encouraging the other side to resolve the dispute at any cost. Lawyers whose tactics are described as "hardball," "scorched earth," "take no prisoners," or "giving no quarter" are nothing more than "legal terrorists" and "barbarians of the bar," and should be vilified, not revered.
The decline in courtesy and morality in lawyers also reflects similar societal trends. Increasingly, it seems that the ends are used to justify the means and that the only dishonor is getting caught. Moreover, as the number of lawyers has increased, the importance of good interpersonal relationships has decreased. When one is opposed by a different lawyer every time one appears in court, there may seem to be little incentive to cultivate a good working relationship.
Clients sometimes try to interfere with the exercise of the lawyer's professional judgment. The demand that a lawyer do whatever is necessary to win and take pleasure in observing the lawyer "do battle," challenges a lawyer's resolve to adhere to the ethical principles which define the legal profession.
Several years ago, the West Virginia State Bar created a professionalism commission. In January, State Bar President Tom Flaherty asked retired Justice Thomas Miller to assume chairmanship of the Commission. On February 29, a meeting of the thirty-member commission was conducted and subcommittees were formed to draft reports on standards of professionalism, a client's bill of rights, teaching professionalism, and punishing unprofessional conduct. Drafts of the subcommittee reports are scheduled to be circulated among the members by mid-May and the Commission's next meeting is scheduled for June 13. Once the Commission's final report is prepared, it will be submitted to the Supreme Court for review.
One of my goals for this year as Chief Justice is the adoption of standards of professionalism. It is a subject on which many of you know I have expressed great interest for a number of years. I want to publicly thank President Flaherty and in-coming President Ford, as well as Justice Miller and the other members of the Commission, which include Chief Judges Haden and Stamp, and Circuit Judges Hatcher, Madden, and Steptoe, for their commitment to helping me realize this goal. It is our solemn obligation to rededicate ourselves to our great profession; to reinvigorate our shared sense of public service; and to ensure common courtesy, respect, and fair dealing for one another. John W. Davis described the lawyer's mission in these terms:
True, we build no bridges. We raise no towers. We construct no engines. We paint no pictures. There is little of all that we do which the eye of man can see. But we smooth out difficulties; we relieve stress; we correct mistakes; we take up other men's and women's burdens and by our efforts we make possible the peaceful life of men and women in a peaceful state.
I hope that the work of the Supreme Court, the Commission, and the State Bar will cause all of us as lawyers to revisit our roots, to rethink who we are, and to regenerate within ourselves a spirit of humility, civility, dignity, integrity, and professionalism.
Leadership
You are the key to addressing the issues I have outlined. If we are to have any success in both the short-term and the long-term in resolving the issues and problems facing the legal profession, it will depend on the leadership of the circuit judges and members of the bar.
During my tenure as both a justice and during my turn as chief justice, the members of the Supreme Court, Justices Workman, Cleckley, Recht and Albright, and the circuit judges and the bar, have given me both support and cooperation. It is essential that we continue to work together for the improvement of the court system for the public. We must seek solutions--not create problems.
Let me close with the words of George Washington:
I have always been persuaded that the stability and success of the national government, and consequently the happiness of the people of the United States, would depend in a considerable degree on the interpretation and execution of its laws. In my opinion, therefore, it is important that the judiciary system should not only be independent in its operations, but as perfect as possible in its formation.
CLE CALENDAR
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.
9/4/96 National Business Institute, Inc., "Living Trusts and Other Estate Planning Alternatives in WV," Charleston, 715/835-7909, 7.20 credits, including 1.0 ethics
9/6/96 National Business Institute, Inc., "Advanced Workers' Compensation in WV," Charleston, 715/835-7909, 7.20 credits, including 0.50 ethics
9/6-7/96 WVCLE, "Family Law," Morgantown, 304/293-7255, WVU v/s West Michigan
9/7/96 WVCLE, "Workers' Compensation," Morgantown, 304/293-7255, WVU v/s West Michigan
9/13-14/96 WVCLE, "Medicine for Lawyers," Morgantown, 304/293-7255, WVU v/s East Carolina
9/18/96 National Business Institute, Inc., "Medical Malpractice in WV," Charleston, 715/835-7909, 7.20 credits, including 1.0 ethics
9/20/96 Professional Education Systems, Inc. "Medical Proof of Damages and Disability," Charleston 715/836-9700, 7.20 credits
9/24/96 National Business Institute, Inc., "WV Sales and Use Tax Update," Charleston, 715/835-7909, 8.0 credits
9/27/96 National Business Institute, Inc., "Drafting and Litigating Prenuptial Agreements in WV," Charleston, 715/835-7909, 7.20 credits, including 1.0 ethics
9/27-28/96 WVCLE, "Professionalism: Perspectives From the Bench and Bar," Morgantown, 304/293-7255 WVU v/s Maryland
10/4-5/96 WVCLE, "Update on the Law," Morgantown, 304/293-7255, WVU v/s Boston College
10/10/96 Lorman Business Center, "Taking Effective Depositions," Charleston, 715/833-3940, 3.90 credits, including 1.20 ethics/office management
10/22/96 Lorman Business Center, "Collection Law," Huntington, 715/833-3940, 4.50 credits
10/23-24/96 West Virginia Chamber of Commerce, "OSHA's Ten Hour
Authorized Voluntary Compliance Course,"Charleston, 304/342-1115, 13.30 credits
10/25-26/96 WVCLE, "Evidence," Morgantown, 304/293-7255, WVU v/s Miami
11/1-2/96 WVCLE, "Insurance Law," 304/293-7255, WVU v/s Syracuse
Revised: September 26, 1996
Send Comments to: pettyc@technet.wvbar.org
The West Virginia State Bar
All contents copyright (C) 1995, The WV State Bar. All rights reserved.