65 CBJ 265. STRENGTHENING THE LEGAL PROFESSION: WHAT IS NEEDED.

• Author: By QUINTIN JOHNSTONE

Connecticut Bar Journal

Volume 65.

65 CBJ 265.

STRENGTHENING THE LEGAL PROFESSION: WHAT IS NEEDED

STRENGTHENING THE LEGAL PROFESSION: WHAT IS NEEDEDBy QUINTIN JOHNSTONE(fn*) Last spring, the Connecticut Bar Foundation, in cooperation with the Connecticut Bar Association and the Yale Law School, sponsored a one-day conference on "Strengthening the Legal Profession, What Is Needed." Some of the more significant weaknesses in the profession were considered, as well as how such weaknesses should be dealt with to improve the profession. The conference was held at the Yale Law School and was open to all lawyers in the state and to law office support staff. An introductory presentation reviewed the legal profession's principal weaknesses and was followed by five panel discussion sessions, each focusing on a particular problem area. The luncheon speaker was John J. Curtin, President of the American Bar Association.(fn1)

The legal profession is a highly successful enterprise by any of the usual criteria for evaluating occupations, including importance of services rendered, influence, prestige, per capita income, and numbers of active practitioners. However, as the conference underscored, the legal profession has weaknesses that impair its effectiveness, detract from its desirability as a calling, and threaten its future. These weaknesses should be recognized, faced up to, and viable proposals made to overcome them. The conference sought to do just that insofar as feasible in a one day meeting.

This report summarizes the conference proceedings, covering the weaknesses on which the panels concentrated their attention, the Curtin remarks, several additional legal profession weaknesses raised during the day, and finally, a few conclusionary observations. The conference concentrated on the legal profession in Connecticut but in some instances panelists from outside the state discussed issues and solutions in other states of relevance to Connecticut. In the presentations and discussions that took place during the conference, a high degree of agreement was apparent as to what are the legal profession's weaknesses. There was considerable disagreement, however, over how these weaknesses should best be dealt with.

1. CORREMNG SERVICE DEFICIENCIES

   One of the panels focused on failure of the legal profession to fill the legal service needs of certain segments of society, most particularly the poor and persons of moderate means. Except for matters customarily handled by contingent fees, notably personal injury claims, the poor cannot afford legal services. Nevertheless, it is common for poor people to need legal advice and representation in a variety of matters, including, for example, eviction, divorce, child custody, welfare claims, bankruptcy, and criminal defense. Legal aid and public defender services are the major means available for providing legal services to the poor. Public defender lawyers provide fairly comprehensive coverage for the poor charged with crimes in Connecticut, but legal aid can accommodate only a minority of the Connecticut poor needing legal assistance in civil matters. A majority of those who apply and are qualified for legal aid in Connecticut, are rejected, due to insufficient staff to handle applicants' problems. Many other poor persons are in need of legal aid assistance but do not seek help, either because unfamiliar with available sources of aid or because of the belief that they will be rejected. Present pro bono services by Connecticut lawyers and the IOLTA program that supplements legal aid agency funding are both helpful in making more legal services available to the poor, but fall far short of solving the insufficient staffing problem.

   How can programs for providing legal services to the poor in Connecticut be strengthened? Considerable panel attention was given to mandatory pro bono - every lawyer in the state required to give a contribution of time or money to provide legal assistance to the poor. Some panelists and commentators favored mandatory pro bono, others opposed it. The usual arguments in opposition to mandatory pro bono were advanced: likelihood of inferior representation when coerced, lack of competence if nonspecialists are assigned typical legal problems of the poor, and the inequity of lawyers being forced to carry this burden when no other occupation essential to the poor is required to donate its services. But those supporting mandatory pro bono argued that voluntary pro bono schemes are not working, as the percentage of those in the bar participating remains far too low, so the obligation should be made compulsory. Background training programs and legal aid agency supervision of at least some pro bono legal work, it was asserted, would take care of the incompetence risk. Some supported the mandatory pro bono option of permitting any lawyer to provide funds rather than services, the funds to be used to hire others to provide legal services to the poor. The monetary equivalent of five billable hours of a lawyer's time was the annual funding option strongly pushed by one panelist.(fn2)

   Other proposals suggested for strengthening legal service programs for the poor were a statutory requirement for state funding of attorneys' fees and costs in civil liberties and certain other kinds of cases brought on behalf of the poor, costs to include reimbursement of expert witness expenses; more law school clinics and externships for poverty law to enhance the number and quality of legal aid and public defender recruits, as well as to generate increased professional interest in this essential type of practice; and improved communications between private practitioners and those in legal aid and public defender offices so that each will work more understandingly with the other. More important, but with little prospect of near-term success, was the proposal that government at all levels substantially increase its financial support of legal aid agencies, these agencies being seen as fulfilling obligations of the entire community that should be more heavily underwritten by government.

   The unmet legal representation needs of moderate income persons also were considered, moderate income persons being those whose incomes range from just above what would qualify for legal aid up to lower middle-income. Many in this financial range are not receiving needed services of lawyers because they cannot or will not pay for them at going rates, do not know how to select a lawyer well qualified to serve their particular needs, or are unaware until it is too late that they have legal problems. One panelist, highly experienced in providing legal services to those of moderate income and just above, described two relatively new formats for serving these groups: legal clinics and employerfunded group legal plans for employees.(fn3) Legal clinics are private law offices efficiently structured to take care of the legal service needs of ordinary people, commonly on a volume basis and frequently relying on advertising to attract clients. Employerfunded plans cover some or all legal service needs of employees, analogous to employer-funded health service coverage. Many of these plans are provided for in employer collective bargaining agreements with trade unions. It was argued that the organized bar should be more supportive of legal clinics and employerfunded plans, rather than being apathetic or opposed, as frequently is the case, for both formats not only further clients' interests but the bar's interests as well.

2. STANDARDS OF PROFESSIONAL CONDUCT

   The panel on standards of professional conduct was of the opinion that although professional behavior of some Connecticut lawyers is a matter of concern, the Rules of Professional Conduct now in effect basically are satisfactory, as are the means by which the Rules are formally and informally interpreted. In the panel's view, however, there is a problem with compliance, and there is a question of...