Jurists may sometimes forget that they are the caretakers and stewards for the system of justice and the rule of law that constitutes the centerpiece of America’s democracy.
In the heat of battle (and particularly in our struggle to make a living), attorneys may say or do something which tarnishes the image of this noble profession and diminishes the respect of our citizens for our courts. Erosion of confidence of the American people in the system of justice is something about which the lawyers and judges in this state and this country need to be conscious of because the very rule of law rests upon citizens’ trust and confidence in the impartiality of decisions founded in the law.
It is precisely these concerns that underlie the efforts to promote and enhance professionalism in Maryland and many of our sister states. This initiative is taking on a new face in Maryland: The Maryland Professionalism Center, Inc.
By way of background, members of the Bar who have practiced for a number of years will recall that in 2002 and 2003, the Court of Appeals created a Professionalism Task Force and then-Chief Judge Robert M. Bell, MD Court of Appeals, and Judge Lynne A. Battaglia, MD Court of Appeals, travelled throughout the 24 jurisdictions in the state soliciting input on the issue of professionalism. That outreach effort led to certain conclusions, including that there had been an erosion of professionalism which was more acute in the urban areas (in part due to the infrequency of contact lawyers and judges have with each other) and less acute in the rural areas. Domestic practice also seemed to be the area of practice that produced the most contentious relationships among lawyers. These efforts led to a recommendation to create a Professionalism Commission which the court constituted by Court Order in 2004.
The Professionalism Commission, over its tenure, produced certain memorable outcomes including the development of a mentoring program, revamping the professionalism course for new lawyers, and developing the Ideals of Professionalism, which are attached as an Appendix after Rule 8.5 of the Maryland Rules of Professional Conduct. It was recognized, however, by those on the Commission that, to better ensure professionalism remains front and center in the consciousness of Maryland judges and lawyers, there needed to be an organization and structure committed to the purpose.
As a consequence, on September 12, 2012, the Court of Appeals entered an Order rescinding the Order creating the Professionalism Commission and establishing instead a new Professionalism Center. Since the date of that Order, a non-profit organization called the Maryland Professionalism Center, Inc., has been operating. The organization has offices in the judicial training facilities just outside of Annapolis, and the Executive Director of the organization is Monise Brown, an attorney who comes to the position from a distinguished career as a prosecutor in Charles County, Maryland. Judge Battaglia is the Chair of the Board of the organization, and the Board, appointed by the Court of Appeals, consists of lawyers and judges hailing from various regions of the state, including the deans of Maryland’s two law schools. Various committees have been created with a member of the Board chairing each committee. The several committees are dedicated to revamping the professionalism course; mentoring; establishing a professionalism course for judges and courthouse staff; evaluating the need for continuing legal education; establishing outreach to law students; establishing outreach to the community; long range planning; organizing and holding convocations and symposiums; and studying the issues of aging, substance abuse and other factors affecting professionalism.
The “Aging Lawyer” subcommittee (on which the co-authors of this article are participants) is composed of a very knowledgeable group of professionals, including Glenn Grossman, Bar Counsel, Al Frederick, Jim Quinn, who serves as the Director of the MSBA Lawyer Assistance Program, Karen Federman-Henry, Judge Michele Hotten, Maryland Court of Special Appeals, Steve Kehoe, Tim Maloney, and Bill Young.
As a subcommittee, the first order of business will be to address a concern about the very significant number of lawyers (particularly “baby boomers”) who are approaching the age at which they will consider retirement or continue practicing, potentially with infirmities and impairments that develop with age. This is a national phenomenon not unique to Maryland. The National Organization of Bar Counsel (NOBC) has identified this as a priority issue for that organization. It is our expectation, as a subcommittee, that we will make a recommendation to the Professionalism Board of various steps to assist lawyers, as they age, in the transition from the practice into retirement and potentially further legal and/or public service. Senior lawyers are a valuable resource to be cherished.
Subcommittee members recognize that failure to address the “greying bar” could lead to devastating consequences for both our aging lawyers and their clients. All attorneys have probably experienced an instance in which an aging client stubbornly refuses to address such things such as the generational transition of assets or a business. The client’s state of denial stems, in part, because the client’s identity frequently is wrapped around a career or being an indispensable element of a business. Inertia, however, can cause suffering for all, particularly if the client unexpectedly becomes impaired or passes away.
Much the same is the case for some of aging lawyers who, in a state of denial, refuse to acknowledge growing impairments. The result, much like for the business and family described above, can be frustrating for the lawyers’ clients and for colleagues who find themselves unable or unwilling to confront the situation. The subcommittee has come to learn that it is not all that uncommon for a judge or a colleague to contact the MSBA Lawyer Assistance Program about a lawyer who has appeared in court or continued to represent clients but who has difficulty responding to questions, addressing legal issues, handling paper, and, in essence, no longer possesses the capacity to represent clients effectively. When contacted by representatives of the Lawyer Assistance Program, some aging lawyers may acknowledge anxiety and fear about being forced to retire. For some, their whole life (and therefore their identity) is wrapped up in the practice, and it is difficult to envision what life would be like outside of the law. The struggle then becomes finding that balance in preserving the interests of the clients and preserving the dignity of the aging professional.
The concern is not one, however, limited to age. Clients can become “lawyer orphans” for many reasons including accidental injury, illness, or other conditions that make it impossible for an attorney to continue to provide capable services.
If any Bar member would like to share his or her thoughts or anecdotes in confidence, please do not hesitate to bring them to the attention of any other member of the subcommittee.
Thomas E. Lynch III is a principal at Miles & Stockbridge. John M. “Jack” Quinn is a partner at Ethridge, Quinn, Kemp, McAuliffe, Rowan & Hartinger.