Reflections on the unexpected privilege of the State Bar presidency
“Oyez! Oyez! Oyez! All persons having business before the Honorable, the Supreme Court of the United States, are admonished to draw near and give their attention, for the Court is now sitting. God save the United States and this Honorable Court!”
A woman wearing a formal morning coat and a no-nonsense facial expression made this traditional announcement to a packed room that a court officer had ordered to silence several minutes earlier. From behind a maroon velvet curtain appeared eight of the nine Justices of the Supreme Court of the United States.
Chief Justice John Roberts read a summary of a decision written by Justice Sonia Sotamayor, who was absent. He did a workmanlike job of making slightly less soporific a decision concerning dischargability of post-petition tax liabilities in a Chapter 12 farm bankruptcy. I could understand why such cases are assigned to junior justices. Then Georgia’s Chief Justice Carol Hunstein moved for the admission of 44 applicants, all but one of whom were members of the Young Lawyers Division. In the back of the attorneys section of the courtroom sat three Georgia Bar presidents — Gerald Edenfield (2007-08, whose daughter was being admitted), Lester Tate (2010-11) and I, along with our younger friend, YLD president-elect Darrell Sutton.
After the Justices disappeared behind the velvet curtain, we filed out quietly through bronze gates and downstairs to the Natalie Cornell Rehnquist Dining Room. Chief Justice Roberts dropped by to say a few words of greeting. Soon followed Associate Justice Clarence Thomas, the most illustrious son of Pin Point, Georgia, who spent quite some time with our Georgia Bar group. He invited questions and took time for personal chats and photos with each person. Fresh from a CLE program on the Supreme Court certiorari process, I mentioned one of my cases a decade ago in which Justice Thomas had written a vigorous dissent from the denial of certiorari. Amazingly, he immediately recalled the case, the core facts, the legal issues and a subsequent conversation at a conference with the author of the decision from which I had sought to appeal.
Just 19 days before the end of my tenure, this was one of many memorable moments in a year of unexpected privileges for an unlikely and undeserving State Bar president.
Many people who become State Bar president could have been identified as future bar leaders in law school. They progress through presidencies of their student bar association, young lawyers division and local bar association, then without missing a step smoothly ascend to presidency of the State Bar and beyond. Through long training and socialization, they are carefully groomed for the role.
However, I was not one of those natural Brahmins of the Bar. The State Bar presidency was not something that I or anyone else had expected to be part of my career. Through the decade of my thirties I practiced in a firm where any activity that was not directly billable was frowned upon. Three years after leaving that firm and hanging my proverbial shingle, at age 42 I attended for the first time a State Bar annual meeting in Savannah. Initially, it was just an excuse to park our children, then 5 and 6 years old, with my mother and take a short and incidentally deductible vacation with my wife. Knowing that I ought to attend some meeting while there, and that my bride would prefer to sleep late if possible, I signed up for the breakfast meeting of the Insurance Law Section (now Tort & Insurance Practice Section). To my surprise, I left that breakfast as secretary-treasurer of the section and one year later became the section chair.
From that one serendipitous decision to attend an annual meeting and a section breakfast cascaded scores of opportunities to speak at and chair CLE programs, publish articles in professional journals, a book deal with West, and eventually a leapfrog ascent from the board of governors to the State Bar presidency. In material terms, the networking and exposure flowing from the random decision to attend that section breakfast generated fee revenue that covered a lot of mortgage payments, groceries, tuition bills, medical bills, kids’ summer camps, sports equipment, family vacations and family vehicles.
When the opportunity arose to move up to the State Bar presidency, I had been in solo practice for 16 years. Friends jokingly told me that it was virtually impossible to practice law and make a living while serving as State Bar president, but I arrogantly assumed that my physical stamina and workaholic habits would see me through. Realizing a need for more infrastructure to support my practice while in bar office, I joined a law firm comprised of five old friends who like me had started out in insurance defense practice before switching to plaintiffs’ tort practice. They have provided moral support, logistical backup and the appearance of a firm, for which I will be forever grateful.
However, the economic reality of an essentially solo law practice remained unchanged. Working virtually full-time in the Bar presidency and also nearly full-time in my law practice, with a lot of 100 hour work weeks and no safety net was stressful and exhausting. Somehow though I finished the course in the black with my credit record intact. It may take a while to lose the weight I gained through countless dinners and 2 AM snacks at the office and 4 AM suppers when I finally got home, and to rebuild financial reserves, but in the end I am glad I made the leap of faith to take on the job.
The Bar presidency has broadened my perspective on our profession and justice system. One unplanned privilege was the opportunity to serve on the Criminal Justice Reform Council, seeking to help Georgia become more cost-effective about the way it deals with offenders, smart on crime as well as tough on crime. On other fronts, there were months of struggle to enable the public defender system to operate effectively within a budget while also lobbying to increase that budget. We did what we could to improve our rules and standards of professionalism regarding lawyer advertising. Countless meetings with members of the judiciary at all levels deepened my understanding of their roles, perspectives and concerns. Working with Governor Nathan Deal’s team, Attorney General Sam Olens and numerous legislators enhanced my understanding of the complexity of policy making at the state government level.
Some efforts fell short. For example, the proposed Juvenile Code passed the House of Representatives and the Senate Judiciary Committee but stalled due to new budget projections that appeared for the first time when there was insufficient time for careful evaluation. I expect this will be addressed in the context of continuing efforts of the Criminal Justice Reform Council, and will pass the legislature in the next year or two.
Reflecting on the intense experience of the past year, it has become increasingly clear that our profession and our legal system face significant challenges and some opportunities. I want to focus briefly on 3 of them: (1) economics & the law school bubble, (2) advertising & runners, and (3) court modernization & judicial pay.
1. Economics of law practice and the law school bubble.
On the east side of Forsyth Park in Savannah is the 1819 Candler Hospital building. John Marshall Law School in Atlanta is preparing to open this fall in that romantic setting the Savannah Law School, in response to the burning demand for a sixth law school in Georgia. Given their wonderful location, I expect they will attract enough students to be profitable. They may fill a real need for working adults in the Savannah area to attend their night program. On the principle that graduates of less elite law schools are on average happier than graduates of the most elite law school, and Savannah is a great city, it may be a very successful venture. I wish them well, and am tempted to apply for a faculty job.
The Savannah Law School will open, however, at a time when law school applications nationally are declining for the first time in many years in response to the huge gap in supply and demand of law school graduates. There has been much criticism of the “law school bubble” as the numbers of new lawyers produced by law schools vastly exceeds the number of available legal jobs, and universities use law schools as cash cows. Nationally, there have been reports of law schools inflating their reported statistics on graduates’ employment in order to keep up their US News ratings.
Over the past two years there has been a 23.8% decline in the number of law school applicants as bright college students begin to respond to falling demand for new law school graduates. Law schools still fill their classes, though perhaps a little less competitively. I have seen projections that the supply of law school graduates in the next decade may exceed the number of legal jobs available in the economy by over 200,000. Imagine 200,000 surplus lawyers looking for work to pay off crushing tuition loans and pursue the dreams that led them to law school in the first place.
There are many factors involved in the gaps between supply and demand and between expectations and reality in the legal profession. Time and space do not permit a detailed analysis here of:
- Impact of crippling debt burden on new law school graduates to the point that their debt load alone might cripple the ability of some to pass a fitness review for bar examiners.
- Impact of US News ratings of dubious merit upon law schools and their reporting of graduates’ employment data.
- Corporate outsourcing of back office legal work to India and China where many thousands of bright youngsters are training in American law and eager to work for peanuts,
- Large firms hiring graduates as “contract lawyers” to review documents with no career track, mentoring or training on how to be a lawyer.
- Online sellers of legal forms selling third rate, error filled legal documents to unsuspecting consumers.
- “Witness only” residential real estate closings for lenders, providing too little or no protection for consumers and hollowing out the residential real estate practice.
- Weak vetting of financial eligibility for appointment of public defenders in some judicial circuits, despite the efforts of the Public Defender Standards Council to promote adequate eligibility screening, hollowing out the private criminal defense practice.
- The “do it yourself” trend of consumers finding forms on the Internet and going pro se in the sorts of “meat and potatoes” legal work that many Main Street lawyers have lived on.
- Federal courts’ protection of “commercial speech” in lawyer advertising that leads to firms that do powerful marketing but poor legal work drawing in unsuspecting injury victims and settling their cases for 10% of value.
The net effect of these trends may be negative for both consumers and the legal profession.
2. Advertising and Runners.
One of the most common questions I encountered in speaking to civic groups around Georgia concerned sleazy lawyer advertising on television. Similarly, we lawyers have often complained about bad lawyer advertising and lawyers who use runners to unethically solicit unsuspecting injury victims. We get anecdotal reports of some (though perhaps not all) of law firms that advertise heavily doing substandard work for clients, selling them down the river for 10% of case value, and fouling up the cases so badly that many reputable lawyers are afraid to touch them when the clients finally wise up and go looking for a “real lawyer.”
A body of federal court decisions regarding commercial speech and lawyer advertising are clear that the Bar cannot regulate content or taste other than to bar false and misleading advertising. But we can require a finite set of disclosures and disclaimers relevant to consumer choice. For the protection of consumers, the State Bar Fair Market Practices Committee chaired by Gerald Davidson of Lawrenceville, has proposed amendments to lawyer advertising rules in Georgia which were submitted to the Board of Governors on June 1st, after the publication deadline for this article. Our proposal is to add prominent disclosures of who the advertising lawyers are, where they really are, if they are really just aggregating and referring the cases, and if the person on the ad is actually an actor rather than a lawyer for whom the advertisement seeks business.
The committee has also prepared an addition to the Lawyer’s Creed regarding professionalism in lawyer advertising which has been adopted by the Chief Justice’s Commission on Professionalism, and has begun work on an aspirational statement on professionalism in lawyer advertising, to condemn sleazy practices what we cannot constitutionally prohibit. In addition, the committee has also begun work on several measures ways to curb more effectively the use of runners to unethically solicit injury victims.
3. Court modernization and judicial pay.
The Georgia Constitution says we are to have a unified court system. Instead we have a fragmented, balkanized court system, and in at least once instance a turf battle that has dragged on for decades. As president, I created and appointed a Next Generation Courts Commission with a three year charge to envision what the court system should look like in 20 years, and plot a course to get there.
Chaired by Judge Lawton Stephens from Athens, the Next Generation Courts Commission includes judges, clerks and administrators from all classes of courts – superior, state, juvenile, probate, municipal, as well as a mix of practicing lawyers. Judge Stephens organized it into committees on functional topics so that folks from all the classes of courts are drawn into working together on issues. The National Center for State Courts is providing staff support. I am hopeful that out of this creative mix will generate new solutions for institutional challenges in our judicial system.
We worked hard over the past year to create a statewide electronic court filing system similar to the federal “Pacer” system, in cooperation with a cohort of excellent Superior Court Clerks and the Administrative Office of the Courts. The technology does not require reinventing the wheel. Other states that have done it have basically given Georgia their code. The IT staffs of the AOC and Superior Court Clerks Cooperative Authority, working together with vendors, could knock that out in fairly short order. The greatest challenge is political. An e-filing system must work through court clerks. We have 159 elected Superior Court clerks, almost all of whom are great, good-hearted public servants in their communities and sincerely want to move forward in the effective use of technology to improve service. The clerks in the 10 or 12 largest counties, where the bulk of the case filings occur, are eager to move forward on e-filing, and can play well with others. We were prepared to roll out the beta version of a Georgia e-filing system at the State Bar annual meeting in Savannah and install it this summer at a beta site in a suburban county. However, the effort was blocked repeatedly by a couple of strategically placed individuals guarding their turf in a Superior Court Clerks Council that still operates virtually on the county unit system that was eliminated in the legislature 50 years ago.
It is past time for Georgia to catch up with Alabama and other states on e-filing. These efforts will bear fruit sooner or later, though unfortunately not on my watch.
The more I have seen, the more convinced I have become that the balkanization of retirement systems between various classes of judges and clerks, some of which are funded in part by fees collected by their offices, helps to perpetuate turf protection and impede efforts to modernize our court system. We did not tackle this in my term as State Bar president the fragmenting effect of the array of judicial branch retirement systems, and perhaps it is beyond the reach of any Bar leadership. However, someone should address this underlying force for continued fragmentation.
Judicial pay is another chronic concern. While most judges are dedicated public servants who are not motivated by money, and lagging pay is not directly tied to instances of judicial misconduct, we can take as an axiom that you generally get what you pay for. Judicial salaries are not competitive with what a successful private practice lawyer in his or her prime can earn. It is hard for lawyers to make that sacrifice in their prime earning years when they look forward to sending their children to college. That affects the pool of applicants for judgeships.
Of course, there are always applicants for judgeships, just as there are always applicants for law schools. But the talent pool is affected by pay levels. In the 1950s, two-thirds of appointees to federal judgeships came from the private sector, from private practice. Today two-thirds of federal judgeship appointees come from the public sector. While I do not have hard data, my general observation is that pretty much the same thing happens at the state level.
It is undeniable that there are many fine judges whose prior experience was exclusively in the public sector. Some of them are among my dearest friends. But something is lacking when too many judges go to the bench with no experience in private practice or civil litigation, and who never had to represent human beings in court, who never had to deal with the economics of law practice, covering overhead, making payroll and struggling with a myriad of complicating issues that are daily headaches for practicing lawyers.
The Bar should support efforts to make judicial compensation more competitive with what successful lawyers in their prime can earn in private practice. It may never be that there will be full parity in pay levels, but we should make judicial service less of a sacrifice for families of those who otherwise could make a great contribution on the bench.
Several times in the past year, I have been reminded of a poem I was required to memorize in fifth grade at Menlo, in Chattooga County.
Isn’t it strange that princes and kings,
and clowns that caper in sawdust rings,
and common folk like you and me,
are builders for eternity?
To each is given a book of rules
a block of stone and a bag of tools.
For each must shape ere time has flown
a stumbling block or a stepping stone.
It is the role of the Bar need to provide stepping stones and work past the stumbling blocks.