Chief Judge Nominee Lippman Celebrates Bench and Bar Collaboration

Celebrating Collaboration of Bench and Bar
The New York Law Journal by Jonathan Lippman - January 26, 2009

Over the years, I have had the privilege of serving the Judiciary in varying roles that have given me a bird's-eye view of the positive changes that have taken place throughout the profession. In many respects, the legal world today is a much different place than it was 15, or even 10, years ago. Both the courts and the practice of law have been transformed on a broad range of issues.  Many of the advancements that have made the practice of law more convenient, such as the ability to view court calendars and court decisions online, have been the result of courts and practitioners taking full advantage of the technological innovations that are changing the nature of everyday life. Indeed, much of the progress in shaping our profession for the better has been the result of the spectacular partnership between the courts and the bar.  I thought it would be instructive during State Bar week to highlight just a few of the most successful collaborations that have now become staples of the court system and the profession in New York.

The Commercial Division

The existence of the Commercial Division of the Supreme Court in New York, today so often the parties' venue of choice to resolve commercial disputes, is a prime example of the outstanding things that bench and bar can accomplish together.  The impetus behind the creation of the Commercial Division was a report with recommendations by the Commercial and Federal Litigation Section of the New York State Bar Association. A joint bench-bar task force then worked to implement the Section's proposal and, as we know, the results have been strikingly effective in attracting and retaining business in our state.  The creation of a part of the Supreme Court devoted to commercial matters has improved the business community's confidence in our courts and allowed us to become a desirable and worthy forum for the litigation of complex commercial issues.  Another example of important changes generated by a joint bench-bar committee were the recommendations made by the Committee on the Profession and the Courts, more commonly known as the Craco Committee.

Work of Craco Committee

That panel was organized to examine public attitudes toward the courts and the legal profession. The combined perspectives of both attorneys and judges helped provide a comprehensive view of the profession and a superb opportunity to achieve consensus on meaningful reforms that better serve the public in our state. One such development has been the implementation of mandatory continuing legal education for all attorneys. The CLE requirement was instituted in 1998, with a more intensive "bridge-the-gap" component for newly admitted attorneys.  Initially the subject of some controversy and anxiety, CLE quickly became a valued part of the professional landscape in New York, enabling attorneys to hone their legal skills and stay abreast of recent developments in the law. The establishment of New York's mandatory, statewide Attorney-Client Fee Dispute Resolution Program has been an important tool in helping to resolve issues between attorneys and clients in a more informal, expeditious fashion and in an atmosphere conducive to producing satisfactory results for all concerned.

Fee arbitration helps ease the burden on the courts by resolving these cases through ADR while providing clients with a convenient, inexpensive means to address fee disputes, which are one of the main sources of public dissatisfaction with the legal profession. In certain jurisdictions, including the First Department, the program is administered by local bar associations. Thus, the cooperation of the legal community is critical to the program's success. Another notable outgrowth of the Craco Committee's recommendations was the creation of the letter of engagement rule (Part 1215), which requires that, prior to undertaking representation, an attorney provide a client with a letter of engagement explaining the scope of services to be rendered and detailing his or her fees, expenses and billing practices. This requirement allows clients to see up front exactly what types of charges they will incur and in this way helps to avoid misunderstandings and fee disputes.

Other significant developments arising out of the Committee's recommendations included: adoption of aspirational Standards of Civility for lawyers, judges and court personnel; amendments to court rules (Part 130) authorizing the imposition of costs and sanctions for frivolous conduct in civil litigation; and the requirement that each attorney's office post a statement of client's rights.  All of these reforms are enhancing public trust and confidence in the legal profession by promoting accountability and mutual respect. The success of the many specialized court parts that have been introduced in the New York courts over the last several years would not have been possible without the active cooperation and support of the bar.

Specialized Courts

In this regard, the introduction of Integrated Domestic Violence (IDV) Courts has had a significant impact on the court system and those who practice family law. These courts have greatly improved the legal experience for parties who are no longer shuttled from court to court, but instead have their issues addressed in a single court before a single judge who is aware of all aspects of the parties' situation.  Other types of problem-solving courts, like our drug courts or community courts, have also taken a more practical approach to justice by simplifying the court structure and adjusting the disposition to fit the realities of the situation, whether that involves incarceration or, where appropriate, drug treatment, community service or a mentoring program. These unconventional courts required considerable flexibility by and coordination with the institutional and private bars in our state in order to achieve better outcomes for litigants and society.

Jury Reform

Jury reform has likewise brought about a great improvement in the public perception of the courts.  It is by now well-documented that back in the early 1990s the jury system was greatly flawed and inefficient. The system is now vastly improved thanks in large part to the early support of the organized bar, which was so helpful in achieving the legislative elimination of automatic exemptions, including those for lawyers and judges. The profession recognized the importance of such change to improving the public's view of the fairness of the system.

Further, the cooperation of the bar has been necessary to the goals of commencing voir dire and trials without delay and reducing the perception that the impanelment of the jury is used solely to induce settlement. The continued success of jury reform in the state can in large measure be attributed to bench-bar collaboration in upgrading this bedrock of our justice system. Most recently, our Code of Professional Responsibility was substantially revised and adapted to the format of the ABA Model Rules. The new Rules of Professional Conduct harmonize New York's ethical standards with those in place throughout the majority of the country.

The State Bar issued a proposal, after exhaustive study and analysis, for a new Code in keeping with the ABA Model Rules. The Administrative Board then undertook its own process of review and revisions, ultimately resulting in the adoption of our new Code by the Appellate Divisions. There could not be a better example of the Judiciary and the organized bar collaborating productively on a matter of great significance to the entire legal community. We should all take pride in the many positive changes that have come about in recent decades due to the partnership between the members of the bench and bar. We have been able to transform the courts and the profession in so many enduring ways. Without question, this fruitful relationship will be the recipe for many more important advances in the years to come.

Jonathan Lippman
Presiding Justice, Appellate Division, First Department and
Nominee for Chief Judge Of the State of New York