The D.C. Bar is expected to vote today on an issue it has ducked for more than five years: whether to make public its evaluations of local judges.
The bar has been conducting the evaluations -- over the protests of a number of D.C. Superior Court and Court of Appeals judges -- off and on since 1980.
Its board of governors agreed in late 1983 to conduct two years of confidential surveys, largely to avoid a showdown with the judges over the disclosure issue.
Now, that time is up, and the board is grappling with whether to release the findings of its next batch of assessments of 18 Superior Court and four Court of Appeals judges.
The situation is particularly ticklish since the bar, to which all attorneys who practice in the District belong, is a creature of the D.C. Court of Appeals.
Those in favor of publication argue that disclosure would benefit the judges and the public. "The public should be able to know how its servants, its employes, are performing and in particular how they are viewed in their performance by the lawyers who are in front of them day to day," said John Vanderstar, who headed the bar's Judicial Evaluation Committee until last year.
Local judges are appointed to 15-year terms, and the evaluations, conducted by distributing questionnaires to lawyers who practice before those judges -- are supposed to take place every three years. Lawyers are asked to rate judges -- on a scale from "unsatisfactory" to "outstanding" -- on such things as legal ability, judicial temperament and impartiality.
The "primary objective of these evaluations . . . is improvement of the performance of the judiciary," and "public disclosure is more likely to be effective than private, confidential disclosure," evaluation committee Chairman Lawrence J. Latto wrote in a Jan. 29 report to the board.
Those who oppose releasing the results argue that too few lawyers fill out the surveys to make the results valid, that media reports would focus on the negative findings, and that there is already a mechanism, the D.C. Commission on Judicial Disabilities and Tenure, for handling complaints against judges.
"To publish willy-nilly a statistically invalid sample would do more harm than good," said board member Vincent H. Cohen. "It may make the public think that the judiciary is not functioning well when that may not be the case at all."
Opponents contend that lawyers could use the unsigned questionnaires to retaliate against judges. "There are some judges who have ruled against me in cases that I have walked out of the courtroom steaming, and if that was during the time when I had an evaluation on my desk I might be tempted to put down some comments unsigned," said board member Donald T. Bucklin.
They also point to an American Bar Association recommendation against disclosure and a report by a local polling expert who concluded that an "extraordinarily low" response rate to the questionnaires made the results statistically invalid. Although an average of about 150 lawyers generally responded to each survey out of 44,000 licensed to practice in the District, Vanderstar said, fewer than 2,000 regularly practice in the local courts, and even fewer may have had enough experience before a particular judge to feel competent to fill out a questionnaire.
As to the argument that the disabilities and tenure commission adequately monitors judges, Vanderstar said, "The point of evaluation is every three years the judge gets a piece of paper that says, for example, 'You are perceived as being too rude to witnesses.' I think it's helpful for a judge to know that if it's true, rather than wait until somebody gets exercised enough to go to the tenure commission."
Committee member Stephen W. Grafman pointed out that the evaluations have been "overwhelmingly favorable."
Another factor in the decision whether to release the survey results is the Court of Appeals' supervisory power over the bar.
"I'm not so sure I am propublication or antipublication as an abstract position," said D.C. Bar President Frederick B. Abramson. But, he noted, "One of the things that is a clear reality is that the court . . . controls the activities of the bar."
"Whether the judges . . . are right or not, the fact is they feel strongly, and it's not worth the fight," said President-elect Paul L. Friedman.
In its Jan. 29 report, the Judicial Evaluation Committee suggested that "as a first step" the bar should keep the evaluations confidential unless the judge gave written consent -- before seeing the assessment -- to making it public.
"Once the judges get in their heads that, hey, the bar is not out to crucify everybody, I think they're going to be less and less concerned about having the results confidential," Grafman said.
Persons on each side of the publication issue, however, expressed fears that judges would find the suggested compromise more distasteful and divisive than a blanket decision to release the results.
Where that leaves the issue, no one knows. "Whatever happens on this is not the end-all of the issue," Abramson said. "Judicial evaluation has been a continually evolving thing."