Burger urges lawyers to polish ethics, help unclog courts
Las Vegas, Nev.
The nation's top jurist, chief justice of the United States Warren E. Burger, implores US lawyers to shore up their ethical standards and practices. If they don't, he says, state lawmakers and Congress may do it for them.
Polls show that lawyers rank on the bottom rungs of public credibility, as they have since Watergate.
In remarks prepared for delivery yesterday afternoon, before the American Bar Association's midwinter meetings here, the chief justice called on members of the legal profession to don the cloak of ''healer'' rather than ''warrior,'' ''procurer,'' or ''hired gun.''
''The entire legal profession - lawyers, judges, law teachers - has become so mesmerized with the stimulation of the courtroom conflict that we tend to forget that we ought to be healers of conflicts,'' Mr. Burger told several thousand ABA delegates in his annual ''State of the Judiciary'' address.
Along these lines, he built on a theme that he has been developing in recent years - namely, that lawyers should seek out alternatives to expensive, time-consuming courtroom trials. Of late, Burger has praised the use of arbitration, negotiation, and minitrials as an important vehicle for solving civil disputes.
''To rely on the adversarial process as the principle means of resolving conflict claims is a mistake that must be corrected,'' the chief justice contends. He likened some of the current courtroom processes to early civilization's ''ancient trial by battle and blood.'' And he insisted the former must go the same way as the latter.
In seeking new ways to speed up trials and dispense with costly, sometimes frivolous procedures, the US should probe the possibility of widely adopting ''cost shifting'' as other democratic nations have done, Burger suggested. This process, in effect, penalizes lawyers and their clients who litigate in ''bad faith.''
Burger cited cases of laywers using filibustering tactics to avoid bringing a case to trial. These include delaying the process by numerous, often legally questionable, pretrial motions. He urged judges to take a more active role to avoid possible misuse of the courts. ''A few carefully considered, well-placed $ 5,000 or $10,000 penalties will help focus attention on the matter of abuses by lawyers,'' the chief justice said.
Also suggested by the nation's top jurist is a possible change of rules to allow either a defendant or a plaintiff to offer a settlement in a case in lieu of going to trial.
''If the offer is refused,'' he explained, ''and the case goes to trial and results in a judgment less favorable to the 'refusing party' than the offer it rejected, that party would, with the discretion of the court, be subjected to payment of all costs the imposing party incurred after rejection of the offer.'' This would include attorneys' fees.
As he has done in the past, Burger reminded lawyers that the high cost of legal services coupled with the slow pace of justice has increasingly eroded public confidence in the judicial process and in those who administer it.
He seemed to align himself with Harvard University President Derek Bok, a former law dean, who last year sharply criticized the inefficiency of the US legal system.
Burger warned lawyers not to ''price themselves out of the market,'' indicating that American consumers could well shop elsewhere for legal services - as they turned to foreign cars when the price of US autos rose too much. The chief justice was alluding not to a boycott of the court system, but to increasing use of informal methods and alternate dispute settlements.
Further, Burger suggested that lawyers, in order to restore credibility with the public, should maintain ethical standards that are even higher than those required by law. For instance, although the Supreme Court has now ruled that lawyers may advertise, he suggested that they do so with ''restraint'' and in good taste.
An ABA study shows that only 10 to 13 percent employ this commercial practice. But the chief justice charged that some lawyers use ''the same modes of advertising as other commodities - from mustard, cosmetics, and laxatives to used cars.''
However, the chief justice added that not all developments that have given lawyers greater visibility are undesirable or unprofessional.
He praised ''storefront, street-level offices'' of legal clinics that publish notices of their availability. They help to bring low-cost legal assistance to the poor, which have long been denied proper access to the system, he said.
And the chief justice generally gave the legal profession good grades for its efforts to improve the ''quality of advocacy'' through new law-school programs and continuing legal education.
In the past, he has held that as many as one-third of the lawyers who enter US courtrooms were poorly trained and ill-prepared.