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Young Lawyers’ Division of the Hawai`i State Bar Association

Posted on Oct 26, 2007 in Speeches

Graphic Hawaii State Judiciary Logo

Remarks by the

HON. RONALD T. Y. MOON

to the

Young Lawyers’ Division of the
Hawai`
i State Bar Association

HSBA YLD Breakfast Meeting
Friday, October 26, 2007
Hilton Hawaiian Village

 

GOOD MORNING, LADIES AND GENTLEMEN:

I thank the HSBA’s Young Lawyers Division for, once again, inviting me to address you. Stella and I just returned from a conference on the mainland. The other night, at dinner, one of the women sitting at our table said she worked as a receptionist in a dental office. When our dinner conversation turned to the subject of “timeliness,” she lamented about a patient who was always late and how his tardiness would back-up the rest of their appointments. On the day of one of his appointments, he called, saying he would be late. “No problem,” she said to him, “but, just so you know, we probably won’t have time to administer any novocaine.” — He arrived ON TIME!

I’m guessing that, by sharing this anecdote, you’re probably thinking, “There he goes again . . . he’s going to talk about professionalism and being on time.” Well, you can breathe a sigh of relief, because I’m not. I thought it would be appropriate to talk about the subject of pro bono service, which coincides with the recent unveiling of the Access to Justice Hui’s legal needs assessment survey, the proposed action-plan-recommendations, and how we all can and should be doing more to help. Some of you may have heard me speak about pro bono service before and, therefore, you may be tired of hearing me say how equal justice for all is the cornerstone of democracy and how it must be within the grasp of every citizen. Although I don’t relish being one of those to remind attorneys that we have been charged with the public’s trust and that becoming a lawyer meant joining a helping profession, I believe it is my responsibility as Chief Justice to try to help our nearly 7,000 attorneys meet the goals and mission of our profession. Therefore, as I prepared my remarks for this morning, I thought about that dental receptionist. I was impressed by how she solved the problem of “backed-up” appointments created by the habitually late-arriving patient by providing just the right motivation that caused him to do the right thing. I asked myself: “IS THERE ANYTHING THAT I CAN SAY OVER THE NEXT FEW MINUTES, THAT I — OR OTHERS — HAVEN’T ALREADY SAID, TO SIMILARLY MOTIVATE THE MEMBERS OF OUR PROFESSION INTO ACTION?” — Probably not, but I’ll try anyway.

Let me first say that I recognize that I’m probably speaking to many who are “in the choir,” that is, those who are already doing their fair share, and possibly even more, in helping those in need find meaningful access to justice. I certainly don’t mean to offend — and, in fact, thank and commend — those who are. It is my understanding, however, that there are a significant number who are not. According to recent figures provided by the HSBA, 1,903 attorneys or 27.4 percent of the nearly 7,000 HSBA members voluntarily reported providing pro bono services in 2006. And, as pointed out in the Access to Justice Hui’s commentary to its proposed action-plan-recommendations, “the percentage of Hawai`i attorneys reporting pro bono hours has decreased since 2003, when 28.4% of HSBA members reported pro bono hours.” With only 27.4 per cent of attorneys reporting pro bono hours, that means 72.6 per cent of the membership did not — which is not to say that nearly three-fourths of the membership did not provide any pro bono service. And, therein lies part of the problem: we don’t really know if they did or didn’t — which is one of the major reasons why the supreme court, on October 10th, adopted a mandatory pro bono reporting requirement for all attorneys. Without a systematic procedure for collecting such information, there is simply no other way to determine just how well or how badly we are doing in the pro bono arena and how much effort is needed to encourage attorneys to do better. As observed by the Access to Justice Hui, “[i]t is too early to determine how much positive impact the mandatory pro bono reporting rule will have, however, it is anticipated that this new rule will significantly increase the number of pro bono hours.” And, I add — as it has in other jurisdictions.

I understand that a great number of lawyers believe that “mandatory-anything” is repugnant because they believe lawyers are independent and should not be subjected to mandates except for the kind that are imposed equally upon other citizens; and, particularly repugnant are mandates that would — purportedly — have a detrimental affect the livelihood of attorneys in their law practice. Many attorneys view mandatory continuing legal education, mandatory malpractice insurance, mandatory pro bono hours, and, even, mandatory pro bono reporting, as being out of bounds. But, if you stop and think about it, improving our skills as lawyers through continuing legal education benefits our clients, carrying malpractice insurance protects our clients, and donating our services to those in need is exactly what our profession is all about.

I would wager that a great majority — if not all of you — when applying for law school wrote in your personal statement regarding “why I want to be a lawyer” that you wanted to help people, that is, that you understood that the essence of the profession was one of public service — helping people, that is, both the disadvantaged and the not-so-disadvantaged. In fact, whenever I interview law students applying for a judicial clerkship, I always discuss the image of the profession with each and every applicant and ask what they believe is the one thing that lawyers can do to elevate the profession’s image and the public’s trust and confidence in it. Without doubt, every single one of them cite to pro bono service as the means to achieving that goal. I am, therefore, concerned by what has happened to our profession. For whatever reason, something occurs between crafting an eloquent personal admissions statement — espousing high ideals consistent with what the legal profession stands for — and the actual practice of law. Over the years, the primary reason I’ve heard is — “I’m too busy trying to make a living.” However, I’m certain that so are the one-quarter of attorneys who reported they are doing pro bono work. Therefore, the task at hand is to determine how to convince the remaining members of our profession to sacrifice some time towards fulfilling their obligations and responsibilities.

The events surrounding 9-11 were, indeed, unfortunate and devastating; however, it served as a wake-up call to the entire nation about how self-centered and complacent we had become regarding the freedoms we enjoy and how much we had come to take our democratic form of government for granted. I recall that, prior to 9-11, while attending UH and high school football games, I would stand up, along with everyone else, for the traditional playing of our national anthem. While the music played, I would quietly mouth the words — as I have difficulty carrying a tune! — and I would notice others who, although standing, were talking and laughing; some even continued eating, while others stood with baseball caps and hats still on their heads. I remember thinking how sad it was that our citizens have come to the point where even the most basic display of respect for our national anthem and American flag — indeed, symbols of our freedom and democracy — are ignored. But, after 9-11, I noticed the attitude and mind-set appeared significantly changed. Most of the men took off their baseball caps and others — men and women alike — placed their hand over their hearts; you could even hear the audience singing the words of the Star Spangled Banner.

Have the members of our profession become so complacent and numb to the results of survey after survey — nationwide — that have repeatedly demonstrated the public’s lack of trust and confidence in the legal profession? For the past four decades at least, lawyers have been consistently ranked, in terms of respect, near the bottom of the list of professions or occupations, second to last to used car salesmen in the 60s and 70s; to politicians in the 80s and 90s; and to the media in 2000. Why is that? Survey results indicate it’s because the public perceives lawyers as unethical and greedy and that lawyers cost too much, make too much money, or are not doing enough to help those who can’t afford an attorney. I am apprehensive that a day may come — and, perhaps, not in the too distant future — when the public will rise up and say, “The legal profession needs help and more guidance.” If and when that occurs, I submit we will not appreciate the nature of the help. What could happen?

I submit that the worst case scenario, in my view, is that the public will seek legislation that will end our self-regulating authority. If that happens, we will join the myriad professions that are currently regulated and overseen by the legislative and executive branches. Based on a brief review of the Hawai`i Revised Statutes, there are currently twenty-eight professions or occupations that are regulated by state boards, which members are appointed by the governor, or overseen by the Department of Commerce and Consumer Affairs or Department of Health, both of which are part of the governor’s cabinet. For example, doctors — whether practicing in the fields of general medicine, surgery, chiropractic care, dentistry, naturopathy, podiatry, psychology, radiology, or veterinary medicine — are subject to regulation by a board appointed by the governor or established within the DCCA. Acupuncturists, nurses, physical therapists, engineers, architects, CPAs, real estate brokers and salespersons, and undertakers are similarly regulated. In fact, Title 25 of the HRS, entitled “Professions and Occupations,” covers all of these aforementioned professions and more. However, conspicuously missing from this section are attorneys, who are included in Title 32 under “Courts and Court Officers.” Under chapter 605, entitled “Attorneys,” the sole power to examine, admit, remove, or suspend any practitioner is vested in the judicial branch, specifically the supreme court. We in the legal profession are the only ones allowed to regulate ourselves, which is, indeed, a privilege, but one that comes with great responsibility.

In fact, the importance of that responsibility is reflected in the Preamble to the Hawai`i Rules of Professional Conduct. With regard to “self-governance,” it states:

the legal profession is unique in this respect because of the close relationship between the profession and the processes of government and law enforcement. This connection is manifested in the fact that ultimate authority over the legal profession is vested largely in the courts.

To the extent that lawyers meet the obligations of their professional calling, the occasion for government regulation is obviated. Self-regulation also helps maintain the legal profession’s independence from government domination. An independent legal profession is an important force in preserving government under law, for abuse of legal authority is more readily challenged by a profession whose members are not dependent on government for the right to practice.

The legal profession’s relative autonomy carries with it special responsibilities of self-government. The profession has a responsibility to assure that its regulations are conceived in the public interest and not in furtherance of parochial or self-interested concerns of the bar. Every lawyer is responsible for observance of the Rules of Professional Conduct. A lawyer should also aid in securing the observance of the rules by other lawyers. Neglect of these responsibilities compromises the independence of the profession and the public interest which it serves.

I submit that a lawyer’s responsibility to observe — and secure the observance of others of — the rules of professional conduct includes adhering to — and securing adherence by other lawyers to — the attorney’s oath, which all of us took upon admission to the bar. At that time, we each promised to support and defend the Constitution of the United States and the Constitution of the State of Hawai`i — I believe we all try our best to do so.

We promised to conduct ourselves in accordance with the Hawai`i Rules of Professional Conduct — and, for the most part, I believe we all do our best in this area, too. I suspect that all of us have, at some point, read the code and, perhaps, read parts of it more than once; BUT, I wonder just how many attorneys have actually read the Preamble to the code. Some of you may be surprised to learn that it specifically provides:

A lawyer is a representative of clients, an officer of the legal system, and a public citizen having special responsibility for the quality of justice.
. . . .
As a public citizen, a lawyer should seek improvement of the law, the administration of justice and the quality of service rendered by the legal profession. . . . A lawyer should be mindful of deficiencies in the administration of justice and of the fact that the poor, and sometimes persons who are not poor, cannot afford adequate legal assistance, and should therefore devote professional time and civic influence in their behalf. A lawyer should aid the legal profession in pursuing these objectives and should help the bar regulate itself in the public interest.

We also acknowledged our responsibility to conduct ourselves with dignity and civility towards judicial officers, court staff, and fellow professionals — and, I believe a majority in our profession do. Finally, we promised to faithfully discharge our duties to the best of our abilities, giving due consideration to the legal needs of those without access to justice — and THAT is our pro bono promise.

I was, therefore, encouraged when the proposed rule amendment calling for mandatory pro bono reporting first went out for comment in May of 2005. At that time, the (1) Legal Services Providers Network, representing nine legal service organizations, including the Legal Aid Society, which also wrote separately, (2) Hawai`i Women Lawyers, and (3) the Gay & Lesbian Education and Advocacy Foundation, as well as 99 lawyers, including 9 past bar presidents, wrote or signed petitions in favor of the rule amendment. Back then, the concept of mandatory pro bono reporting was also essentially approved by HSBA Board of Directors. But, two years later at its July 2007 meeting, the current Board voted — reportedly 8 to 7 — to oppose the proposed amendment. To be perfectly honest, I was totally disappointed and dismayed! It is perplexing to me that mandatory reporting — not mandatory pro bono services — could garner any opposition, especially when you consider: (1) the representations we all presumably made to help us gain admission into law school; (2) our privilege of self-governance; (3) the purpose of our professional conduct code; and (4) the pro bono promise embodied in our oath of office.

Ladies and gentlemen — I thank and commend all of the members of the Access to Justice Hui — the ACLU of Hawaii, Domestic Violence Clearinghouse and Legal Hotline, Hawaii Justice Foundation, Hawaii State Bar Association, Legal Aid Society, Native Hawaiian Legal Corporation, Na Loio, University of Hawaii Elder Law Project, Volunteer Legal Services of Hawaii, the William S. Richardson School of Law, and, the Judiciary — for the enormous amount of time and energy invested in assessing the legal needs of our fellow citizens and in crafting an impressive and challenging list of action-plan-recommendations. IT IS NOW UP TO US!

On our part — that is, the Hawai`i Supreme Court and the Judiciary as a whole, — I have begun the process of exploring — among other recommendations — the implementation of the Hui’s first recommendation, which is the establishment of an Access to Justice Commission charged with the broad task of engaging in ongoing assessments of civil legal needs and developing, coordinating, and overseeing initiatives to respond to those needs. I strongly encourage the leadership of the Bar Association to also explore the many constructive recommendations of the Hui’s proposed action plan, such as the feasibility of “providing free continuing legal education courses, access to online legal research and/or malpractice insurance” to those members who meet the 50-hour aspirational goal of pro bono service specifically provided in the Code. I also strongly urge our many law firms — as proposed by the Hui — to actively encourage, support and reward pro bono legal assistance by, for example, “including within the firm’s annual billable hours requirement a number of pro bono hours.” And, finally, to each individual member of the Bar, I encourage you to examine closely the Hui’s report and — more importantly — its proposed action plan and to identify those areas where your time, talent, and expertise can be dedicated towards making a positive contribution.

We in the judiciary look forward to working with all of you in fulfilling our professional responsibilities and obligations to those who are without access to justice. In so doing, we will not only live up to our pro bono promise and meet the obligations of our professional calling, but will preserve the independence of our profession.

I thank you for your attention.