By: James G. Apple, Editor-in-Chief, International
Judicial Monitor and President, International Judicial Academy
One
characteristic of legal systems that I encounter in talking with judges from
other countries over a period of years that has continued to surprise me is the
relationship between judges on the one hand and the organized bar and
practicing lawyers on the other. When I was practicing law in a state in the Midwest
of the United States I was active in the local bar association, in charge of
the bar’s educational programs, which were directed to judges as well as
lawyers. To me, engaging in activities that involved judges and lawyers getting
together to learn or exchange views was commonplace. I assumed, wrongly as it
turned out, that such an arrangement and other practices that brought judges
and lawyers together in a professional setting were followed in legal systems
around the world. In my conversations with foreign judges I learned that joint
enterprises involving judges and lawyers did not occur very frequently, if at
all, in other legal systems. The practice in the U.S. appears to be unique.
What I
discovered is that not only is there little or no contact, professional and
certainly social, between the two professions, there appeared to be outright
hostility on the part of judges to the idea of such contacts. I talked about
the idea of judges and lawyers working together in projects even in the context
of “improving the administration of justice” and furthering the rule of law.
Such suggestions were met with expressions of scornfulness and disdain. The
subject would often arise when I would be discussing with judges a particular
problem or issue involving judicial or court administration for which solutions
were being sought. I would suggest that judges work with representatives of the
organized bar in their particular community as a way of improving the chances
of success of the project or at least creating solutions that would improve the
chances of success. The usual response was “absolutely not. We do not work or
associate with lawyers.”
In trying
to understand the reasons for this anomaly, and remembering some of the
comments of judges with whom I talked, I thought that a major reason for this
hostility grew from a fear that mingling with and talking to lawyers, even in a
non-social setting, would give rise to suspicions among government officials
and ordinary citizens that such contacts might suggest the planning of illicit
activities involving favoritism or other nefarious plans. In other words
judicial and/or lawyer corruption would at least be suggested by such conduct.
One of the canons of professional ethics for judges in some states in the
United States states that “a judge should avoid impropriety and the appearance
of impropriety in all activities.” Such a cautionary rule may prevent some
judges from considering the idea of working with lawyers for the improvement of
the legal system and the administration of justice.
Another
reason for the existence of such a state of affairs could be the manner in
which judges are selected in the respective legal systems, i.e., the common law
system and the civil law system. In the United States judges are selected from
the ranks of the practicing bar. That means that those who are selected to be
judges are members of a bar association and have engaged in law practice for
some period of time. In the U.S. both state and federal judges are members of
the appropriate bar association in their community or region. Judges are very
much used to regular contacts and interaction with lawyers outside the courtroom
about professional matters. The opposite is true in most countries with the
civil law system; persons in law school select the judiciary as a career at the
end of their formal legal training and do not engage in law practice. Thus they
have no exposure to and little or no interaction with judges.
A third
possible reason for the lack of contacts between the two professional groups,
not a very attractive one, is one relating to comparative social status. Judges
in most communities, at least in Europe and the United States, occupy an
exalted social status, and practicing lawyers are generally considered as lower
on the social scale. Judges with higher social status may not wish to be "tainted"'
or "contaminated"' by associations with those in a lower class.
Regardless
of the reason or reasons for judges separation from, and antipathy for,
practicing lawyers, the situation exists in more than just a few legal systems.
. However it is worthy of consideration to inquire if having judges and lawyers
work together for the betterment of the legal system of which they are a part
would not provide benefits for both groups as well as society and its citizenry
in general. Such activity is
International
Judicial Monitor