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Bar News - March 7, 2003 Professionalism Day Brings Bar Together By: Dan Wise & Lisa Segal BUILDING ON THE success of the inaugural event, the second NHBA Professionalism Day involved close to 900 attorneys and judges in a program featuring guided, though informal, discussions of how to better serve clients and the justice system, and how to feel better doing it. This year's event was held in each county (and at both Hillsborough County Superior Courthouses) on Feb. 14, 2003, organized by the NHBA Standing Committee on Professionalism and the Continuing Legal Education Committee. The program, available for a modest $25 fee for two hours of NHMCLE Ethics credit, utilized volunteer facilitators and common materials and format. Videotaped vignettes humorously illustrating various situations sparked discussion. The program slightly outdrew the inaugural Professionalism Day, held Nov. 16, 2001. "Once again, the Bar - lawyers, court clerks, and judges - came together to confront and address professionalism issues, in a positive and constructive atmosphere. The event encouraged and sustained the highest degree of professionalism and civility," said Professionalism Committee Chair and NH Bar President-Elect Russell F. Hilliard. In Rockingham County, Superior Court Deputy Clerk Brian Kenyon set the tone for a candid, free-flowing dialogue. He illustrated the purpose of the program by recalling how he felt to be admitted to the bar and join a "special group of people," and how he admired the ability of advocates to "engage in a fierce philosophical debate and still go out afterward, have coffee and be friends." The next two hours in the jury assembly room at the Rockingham County Courthouse for a standing-room-only crowd featured Kenyon using the dilemmas posed by the vignettes to draw out observations from the group. When necessary, Kenyon, like a law professor, didn't wait for volunteers, but instead called on attorneys for their reactions to the situations presented. In Hillsborough County Superior Court - South in Nashua, attorneys broke into smaller groups that met in various courtrooms to watch and discuss the vignettes. The groups reconvened in the jury assembly room to share highlights of their discussions and to tackle other professionalism issues. The first vignette featured an overly contentious lawyer who raised technical objections to the simplest of questions at a deposition. "What do you do?" was the question put to attendees. Knowing his audience, Kenyon zeroed right in on an attorney whom he knew he could count on for a provocative answer. "Go right to sanctions," the attorney responded. Other attorneys jumped in: One recalled behaving in a similar manner as the contentious attorney when she was starting out. She related that in her situation, the opposing attorney spoke to her in private and encouraged her to consider whether her adversarial tactics were truly going to help her own client. One attorney recalled being the subject of a successful sanction motion and later the prevailing attorney's graceful gesture of forgiveness. The sanctions motion included an award of legal fees, but the winning attorney said he would not collect them. "'I am forgiving you,' he was saying. It was a very powerful lesson," the attorney recalled. In Nashua, the discussion focused on the apparent inexperience of the objecting attorney, and the need for a more senior member of the bar to offer some constructive criticism regarding this behavior. "This is where collegiality is important. You need to be able to approach opposing counsel to try to work things out, to defuse such difficulties," one attorney offered. Another said that it is a more experienced attorney's "obligation to instruct younger associates on how to practice." "There is so much day-to-day stuff that you don't learn about in law school," she said. Attorney Todd Prevett - a relatively new attorney admitted to the NH Bar in 2000 - agreed, and encouraged more experienced members of the bench and Bar to mentor young attorneys. "The benefits are immeasurable. It will help new attorneys develop a respectful attitude if you take them aside and say, 'That's not how we do that,'" said Prevett. On the other side, as a more experienced attorney, H. Scott Flegal encouraged younger lawyers to solicit help from more senior bar members. "Don't hesitate to ask if you have a question or need help with something," said Flegal. In Nashua, the first vignette also raised the issue of holding depositions at the courthouse so that a judge can intervene if there is a major problem. "People tend to behave better if they know a judge is upstairs and will intervene if necessary," said NH Supreme Court Associate Justice Linda S. Dalianis. Superior Court Associate Justice Gary E. Hicks agreed. "Trends in litigation mean that the courts will have to be more receptive to receiving such calls (to intervene)," Hicks said. In the second vignette, an associate is the target of a vituperative voice mail message from the other side's counsel in a transaction. The attorney leaving the message is a law school classmate of the associate's supervising attorney, and he calls his counterpart to complain about the associate's threatening to terminate the deal because the older attorney had been dismissive of the associate's attempts to contact him. The group had warmed and Kenyon hardly had to call on anyone to get the discussion going as the audience batted the situation around from various viewpoints. Some of the issues raised: Should the associate have spoken up before issuing an ultimatum? Should the supervising attorney have been more on top of the matter? How do you undo the stalemate - to what degree is it advisable or even permissible to encourage one's own client to inform the clients on the other side that their lawyer might be interfering with the transaction's progress? One attorney even wondered whether the aggressive tactics of the female associate - criticized by some in the room - would have been targeted if the associate had been male. The discussion in Nashua of this scenario focused on what to do when opposing counsel won't respond. "We've all been in a situation in which we've made phone calls, then written letters, and received no response, and it's extremely frustrating," said attorney Kent M. Barker. "This (vignette) showed that you're at your most vulnerable when you're angry." Justice Dalianis said that every year, the Professional Conduct Committee gets more complaints about lawyers not responding to clients than any other grievances. Although it is not a violation subject to PCC action, Dalianis said, Bar members should be aware of their responsiveness to both clients and colleagues. "It is a perennial problem that the Bar ought to address," she said. The last vignette involved the conduct of a judge who was overly familiar with one of the attorneys appearing before her for a case-structuring conference. The two, "Judge" Mae Bradshaw and attorney Joseph Laplante, exchange pleasantries, with the judge being especially effusive. Every request of the other attorney, portrayed by Jill S. Mannes, is cold-shouldered by the judge. Discussion ensued about the situation and how to defuse it without jeopardizing the client's case. Further discussion concerned use of the term "brother" or "sister" for a fellow member of the Bar; scheduling policies for attorneys on maternity leave; and the need to retain collegiality without making a newer or less-known attorney feel excluded by it. Kenyon also concentrated on attempting to disabuse attorneys of the fear that asking a judge to recuse him- or herself from a case will displease a judge. With the freedom of someone not in trial practice, Kenyon asked every judge in the room, "Is recusal an attack?" The judges explained that they consider conflicts in each case seriously and do not hold a request for recusal against the attorney. Rockingham Superior Court Presiding Judge Patricia Coffey reminded attorneys that judges are not "personally invested" in the cases they are assigned, and Superior Court Associate Justice Gillian Abramson smiled and told attorneys, "You are giving entirely too much credit to my memory" to remember such incidents. In Nashua, Justice Dalianis had similar thoughts on the matter. "It's easier said than done pointing out a judge's inappropriate behavior and asking for a recusal. Is there a constructive way to do so?" asked one attorney. Dalianis responded, "The judges of this state are not arrogant idiots...but if you don't feel comfortable approaching the judge in question, you should take the matter to the supervisory judge of that court." Kenyon, who was in private practice for a number of years before joining the court as clerk, said he has seen both sides of the issue: the apprehensiveness of attorneys to seek a recusal and their doubt that judges would not hold it against them, and, now that he works in the clerk's office, the true impartiality with which judges hear cases. On the issue of gender bias, Justice Dalianis recalled an incident during her years on the Superior Court bench in which she told a male attorney to smile because "you look so cute when you smile." After having said that, she realized that had she been a male judge and the attorney a female, it would have been a very inappropriate and demeaning comment. "We all make mistakes. We need our consciousness raised sometimes," she pointed out. As in the case of the inaugural Professionalism Day program, evaluations were generally positive, although the substance as well as the format differed from location to location. "It is a great reminder of our goals," wrote one attendee. Another said he appreciated "the safety of the environment for a constructive exchange of ideas." "My thanks to the Bar staff, particularly CLE Director Joanne Hinnendael, who invested enormous efforts to make Professionalism Day the success it is. Feedback from each session will be compiled and reviewed by the Professionalism Committee, and reported by the Bar in these pages. There will be a Professionalism Day III, date to be determined," said Hilliard.
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