IT ALL STARTED in 1977 when Chief Justice Warren E. Burger told an English audience that somewhere around half of all American lawyers are not qualified to adequately represent their clients.
The question of lawyers' competency has been a favorite hobby horse of Burger's for at least 10 years. In 1973 he gave a lecture at Fordham University in which he said that the United States pays more attention to the licensing of Eletricians than we do to lawyers' qualifications.
U.S. Circuit Judge David L. Bazelon, who normally can't agree with Burger on the weather, has said that many defense lawyers in criminal cases are "walking violations of the Sixth Amendment."
The question is of more than academic interest. The 40th annual Judicial Conference of the District of Columbia Circuit opens today in Williamsburg, scheduled to take up - among other things - the question of standards for admission to practice in U.S. courts. The judicial conference, which includes all the federal judges in the circuit as well as more than 200 prominent lawyers, will be comsidering recommendations put together by the Devitt Committee of the Judicial Conference of the United States.
The committee, appointed by Burger under a resolution passed by the judicial conference, was charged with addressing the question of standards for practicing before federal courts. Chief United States District Judge Edward J. Devitt, of the District of Minnesota,is the committee's chairman.
The committee made seven recommendations that now are being considered by lawyers and bar associations in the 11 federal judicial circuits across the country. Among the recommendations:
Minimum uniform standards of competency for lawyers in federal trial courts should be implemented by uniform rules with an examination in federal practice and four trial "experiences in actual or simulated trials."
Establish performance review committees to review instances of inadequate trial performances by lawyers.
Establish continuing legal education programs on trial adovcacy.
The American Bar Association "should consider making mor specific the Code of Professional Responsibility as it relates to trial advocacy."
The basis for these recommendations, which have caused something of a stir in legal circles, is a survey conducted by the Federal Judicial Center, which sent questionnaires to all 476 federal district judges in 1977. Of those surveyed, 81 percent - 387 - responded. About 41 percent of the respondents answered "yes" to the question "Do you believe that there is, overall, a serious problem of trial advocacy by lawyers with cases in your court?"
About 2,000 lawyers were rated by 284 judges in 848 trials and 8.6 percent of the performances were rated as "very poor" or "poor" or "not quite adequate" and another 17 percent were "adequate but no better." No standards were given for the judgments rendered by the judges. The rest - about 74 per cent - were rated good or better.
The official local reaction - as expressed by the appropriate commitee of the District of Columbia - was to suggest that the Devitt Committee had over-reacted to the data it had gathered. The D.C. Bar committee chose to see the respondents' saying that 90 percent of the lawyers' performances rated were adequate or better as a positive sign and that only 8.6 percent were less than adequate. The committee did agree, though, that the "legal profession owes some duty to a prospective client about to go into a trial with a lawyer to assure that client that the lawyer has had some exposure to trial advocacy in some form."
Independently from the Devitt committee action, the National Board of Trial Advocacy announced its formation last week. The board, set up under the aegis of the Association of Trial Lawyers of America, will certify lawyers in their specialty after they take an appropriate examination and have their expertise verified by six professional colleagues familiar with the lawyer's work.
Certification by the board is voluntary. No state now requires a lawyer to belong to the board or to be certified by it. Things do seem to be moving in a direction. Twelve states now require some kind of continuing legal education for lawyers.
Of the 12, two - California and Texas - require lawyers who hold themselves out to be specialists to pass examinations administered by state boards before they can have the mandatory certification. Certified lawyers then must continue their legal education in their specialties. Florida and New Mexico have a similar requirement except that lawyers can declare themselves specialists without taking an examination.
Because of the procedure being followed by the judicial conference, no quick changes are in store. The various circuits are in the process of considering the Devitt committee's recommendations, and the reaction so far has reportedly been mixed. In September, the U.S. Judicial Conference will approve or disapprove the committee's recommendations. If approved, the recommendations still do not become effective unless an individual district - which means the district judges - adopts them.