May 01, 2018

Bridging the Great Divide: (Inn)formal Communication Between Judges and Lawyers

By Malinda E. Dunn

Informal communication between judges and lawyers is, and has been, the subject of much concern. No lawyer or judge wants to engage in inappropriate or unethical communication. On the other hand, as Chief Justice Donald W. Lemons, Supreme Court of Virginia, so eloquently observes, “It is unrealistic and unwise for judges to be isolated from the bar.”

Find out what a number of state and federal judges, as well as a seasoned practitioner, have to say as they share their insights on the importance of informal communication to a functioning legal profession and how it can be accomplished, acknowledging the obstacles and ethics concerns. Each contributor whose words and perspectives are featured in this article is a member of a local American Inn of Court.

Founded almost 40 years ago, the American Inns of Court is an organization with strong judicial antecedents. In the 1960s, years before his appointment to the Supreme Court, Warren Burger envisioned an American organization that would help lawyers improve their advocacy skills while emphasizing the importance of professional demeanor, integrity, and ethics. He was no stranger to the history, goals, operation, and impact of the English Inns of Court and saw enormous benefits to be realized by a similar, close, ongoing linkage between members of the American judiciary, practitioners, and law students.

In 1977, Chief Justice Burger participated in a two-week Anglo-American Exchange, during which he again observed and admired the way in which the judges and practitioners in the English Inns of Court passed on to new lawyers the decorum, civility, skills, and professional standards necessary for a cooperatively functioning bench and bar. Shortly after his return to the United States, he initiated a pilot program—an adaptation of the English Inns system geared to the realities of law practice in the United States. Former Solicitor General Rex Lee and Judge A. Sherman Christensen founded the first American Inn of Court, as a test, in 1980.

As Justice Randy J. Holland, Delaware Supreme Court 1986–2017 and presently Senior Of Counsel at Wilson Sonsini Goodrich & Rosati, points out, justices and judges collaborated to create an organization focused on improving the law and the legal system:

With the encouragement of Chief Justice Burger, the Ad Hoc Committee of the Judicial Conference of the United States on the American Inns of Court studied the concept of replicating the centuries old English tradition of having senior lawyers and judges educate successive generations of advocates on ethics, civility, professionalism, and legal excellence.1

Judge Kent Jordan, U.S. Court of Appeals for the Third Circuit, describes the next steps:

The leader of the first American Inn of Court, United States District Court Judge A. Sherman Christensen, described part of his motivation for wanting an organization like the Inns:

“I felt that I was losing personal touch as a federal judge with bar organizations [and] professional and technological developments, and I periodically invited small groups of lawyers and experts of other professions of science to catered luncheons in my chambers. . . . And it was just an interchange of ideas and I found that very helpful.” (Quoted in P. Pixton, The American Inns of Court: Reclaiming a Noble Profession, p. 56, Matthew Bender & Co., Inc., 1997)

His private luncheons did not fully serve the purpose he had in mind, though, because they lacked structure and because, as he put it, “maybe someone might think I was exhibiting favoritism.” He was thus primed to lead the effort, first in Utah and then nationally, to establish an appropriate means for regular and mutually instructive dialogue between the bench and bar. Between 1979 and 1981, Judge Christensen organized, recruited the membership for, and oversaw the programming for the “pilot” American Inn of Court—and laid the groundwork for the second American Inn of Court. He submitted a formal report on the pilot directly to Chief Justice Burger in 1981.2

In October 1983, the Ad Hoc Committee of the Judicial Conference of the United States on the American Inns of Court unanimously adopted a resolution outlining the purpose and composition of an American Inn of Court, recommending the formation of a national organization, and specifically stating that the official duties of judges are consistent with participation in an American Inn of Court. The final report was approved by the Judicial Conference of the United States at its March 6–7, 1985, meeting. Follow-on resolutions from the Judicial Administration Division of the ABA in 1994 and the Conference of Chief Justices in 1995 and 2011 have encouraged judges and senior lawyers to become involved in the American Inns of Court. These resolutions may be viewed at home.innsofcourt.org/resolutions.

The concerns surrounding communication between judges, senior practitioners, and less experienced lawyers, expressed by both Chief Justice Burger and Judge Christensen some 40 years ago, remain a subject of discussion in today’s legal community. Communication and feedback are essential to the smooth functioning of any workplace and the honest exchange of ideas and information is important within any profession. Within most workplaces and most professions, these exchanges occur daily. Within the legal profession, it is a little more challenging.

Judge David Lannetti, Norfolk Circuit Court, Fourth Judicial Circuit, Virginia, defines the issue saying, “The distance between the bench and the bar in a courtroom is short, yet the demands of decorum and formality transform this ‘no man’s land’ into an impenetrable barrier to informal communications between the judge and the lawyer.”

W. Thompson (Tom) Comerford Jr., Comerford & Britt, LLP, adds, “Judges tell me that the downside of service on the bench is isolation from lawyers in social settings.”

Echoing Chief Justice Don Lemons’s reflection above that it is both unrealistic and unwise for judges to be isolated from the bar, Chief Judge Barbara M. G. Lynn, U.S. District Court for the Northern District of Texas, notes, “the interplay between judges and lawyers is essential to advancing civility, professionalism, ethics, and mentoring and to have judges get essential feedback from the Bar.”

Judge David Lannetti concurs, observing, “without clear communications between judges and lawyers, effective working relationships are difficult to establish and the administration of justice ultimately can be hindered.”

Despite the strong role of judges throughout the history of the American Inns of Court, there are some judges who are reluctant to participate, expressing concern with regard to the interaction between lawyers and judges at Inn meetings. Judge Richard Linn, U.S. Court of Appeals for the Federal Circuit, addresses possible ethics concerns:

Federal judges have a responsibility to uphold the rule of law. In exercising that responsibility, they are faced with seemingly conflicting ethical duties and responsibilities. As noted in the Commentary to Canon 4, a judge should not participate in extrajudicial activities “that detract from the dignity of the judge’s office, interfere with the performance of the judge’s official duties, reflect adversely on the judge’s impartiality, lead to frequent disqualification, or violate the limitations set forth below [in Canons 4A through 4H].” The Commentary further notes, however, that “[c]omplete separation of a judge from extrajudicial activities is neither possible nor wise; a judge should not become isolated from the society in which the judge lives. As a judicial officer and person specially learned in the law, a judge is in a unique position to contribute to the improvement of the law, the legal system, and the administration of justice, including revision of substantive and procedural law and improvement of criminal and juvenile justice. To the extent that the judge’s time permits, the judge is encouraged to do so, either independently or through a bar association, judicial conference, or other organization dedicated to the improvement of the law.”

How, exactly, does an American Inn of Court promote informal communication between lawyers and judges? More focused than a bar association, the American Inns of Court offer structured education programs, along with dinner seating and pupilage groups designed to promote mentoring, all of which create an open, appropriate environment for judges to interact with lawyers.

As Judge Richard Linn reflects,

It is the mission of the American Inns of Court to educate all those who are involved with the administration of justice about the importance of ethics, civility, professionalism, and excellence in the practice of law. The American Inns of Court fulfills that mission by enabling judges to interact collectively with members of the bar from different firms, companies, and agencies without having to engage in the kinds of one-on-one meetings that might raise an appearance of impropriety. Inn of Court meetings are held in different venues, allowing judges who might feel uncomfortable about attending meetings in the offices of law firms that regularly appear before the court to opt out of meetings in those offices and to participate instead in meetings held at courthouses, law schools, or other “neutral” venues. Because the mission of the American Inns of Court is to promote ethics, civility and professionalism in the practice of law, judicial membership does not give rise to a reasonable inference of judicial favoritism toward attorney members. The reality is that members do not expect and do not receive more favorable treatment in court. Judicial participation in Inn of Court meetings encourages attorneys to strive for the highest quality and integrity of their work and to engage in advocacy that aids in the judicial resolution of disputes. Confidence in the courts is enhanced when judges participate as Inn of Court members, publicly demonstrating their interest and involvement in the law beyond just the bench. The American Inns of Court give judges a special opportunity to interact with members of the bar and to contribute to the improvement of the law, the legal system, and the administration of justice without detracting from the dignity of the judge’s office or presenting the appearance of impropriety.

Judge Kent Jordan shares his recollections:

The understanding that there should be a vehicle for exchanging ideas and for training lawyers in advocacy and helping judges to understand developments in the profession is what motivated the district judge whom I clerked for to accept the leadership of a new Inn of Court in Delaware in the mid-’80s. Judge James L. Latchum often told my co-clerk, Kevin Brady, and me about the daily informal gatherings of lawyers and judges at a local restaurant when he was new in practice. It was an environment in which courthouse news was shared, cases were occasionally settled, and a fair bit of informal instruction and mentoring took place. The judge was a practical, no-nonsense man, but there was something wistful about his descriptions of a time when lawyers and judges could talk to each other, without the formality of the courtroom and the strictures of a particular case dictating the dialogue. When he heard about the American Inns of Court, he saw the opportunity to create again a way for the bench and bar to build relationships and share information that would be to the benefit of the profession and, ultimately, the public.

Judge David Lannetti comments:

Social gatherings and continuing legal education programs sponsored by voluntary bar associations may allow judges and attorneys to commingle briefly in a casual atmosphere, but the American Inns of Court program arguably is best designed to foster informal communications that can contribute to the improved administration of justice. Participation in a structured Inn of Court program can allay fears of any impropriety and lead to desired informal communications between the bench and the bar. The members of the James Kent American Inn of Court, like members of most Inns, are assigned to “pupilage” groups—with each group composed of a cross section of law students, law professors, junior attorneys, senior attorneys, and judges—and a different group is designated to deliver the presentation at each meeting. . . . Using this model, judges meet, socialize, dine, practice, collaborate, and present with students, professors, and local attorneys, a formula that engenders both informal communications and a comfortable familiarity among the diverse membership.

Adds Justice Donald Lemons:

The monthly meetings of the American Inns of Court provide an excellent opportunity for judges and lawyers to meet in a collegial environment and explore issues related to law practice and particularly the challenge of professionalism at the bench and bar. The educational programs are first-rate.

Judge Barbara Savitt Pearson, Lowell District Court, Massachusetts, discusses her experience:

We collaboratively work to raise the bar and humanize the bench. The informal communications and well-prepared team presentations elicit spirited discussions each month and provide exceptional opportunities to better understand our perspectives on and off the bench. By providing a forum for judges and lawyers to break bread, educate one another, and forge relationships, the American Inns of Court contribute most effectively to overcome any obstacles to informal communications between bench and bar.

Justice William C. Koch Jr., Tennessee Supreme Court 2007–14, and presently dean, Nashville School of Law, reflects on the formation and long-term success of the Harry Phillips American Inn of Court:

Word of the American Inns of Court movement reached Nashville in the late 1980s. Six members of the legal community, a district court judge, two state judges, a law school dean, and two lawyers decided to create an American Inn of Court. They envisioned that the Inn could be a sub-community within the larger legal community where members of the bench and bar could socialize, collaborate on educational programs, and address matters of mutual interest. Almost 30 years have passed. I am delighted to report that there has not been one reported instance of the inappropriate use of either a judge’s or lawyer’s first name and that comments made during an Inn meeting have not been misused. I also can report that both the bench and the bar have used the social and educational portions of the Inn meetings to air out substantive and procedural subjects and to promote dialogue about common challenges. By lessening the distance between the bench and bar, the Inn is fulfilling its founders’ hope that it would contribute to the smoother operation of our legal system.

Local Inns are strengthened by the participation of judges and lawyers at all stages of practice. As Tom Comerford notes,

The Joseph Branch American Inn of Court in Winston-Salem, North Carolina, has benefited immensely from the participation of our judge/members. . . . Federal judges, superior court judges, and district court judges from Winston-Salem, Greensboro, and surrounding communities regularly attend and participate in our programs. Many members of the North Carolina Supreme Court and Court of Appeals are regular attendees. The participation of judges has been vital in creating a vibrant Inn. Members of the bar, law professors, and law students appreciate and thoroughly enjoy the opportunity to mingle with judiciary in a relaxed atmosphere. There is no question that these meetings open lines of communication between lawyers and the bench and promote civility and collegiality.

Reflecting on his personal experience within the American Inns of Court, Judge Kent Jordan shares the following:

I have been lucky enough in my career, both as a lawyer and a judge, to watch how the insights of judges and other Inn leaders have inspired a great movement to strengthen and improve the legal profession. During conversations over dinner, I got to know leaders of my legal community whom I would likely never have met otherwise. Their example to me as a young lawyer was very meaningful, including the example they set by taking time to participate in the Inn. Because Inn programs often feature examples of legal problems drawn from real life, I was able to hear those experienced lawyers and judges talk about how to handle situations I was likely to encounter. That practical advice, offered in a supportive teaching environment, did indeed prove useful on more than one occasion. As I’ve become more “seasoned,” the Inn meetings have continued to be a benefit to me. Attorneys can talk about what is and is not helpful in a judge’s handling of litigation, and those conversations take place in a spirit of goodwill that encourages a kind of candor that would be very hard to come by otherwise. Sometimes a helpful thought is shared during a presentation or sometimes in a quiet side conversation, but the Inn is the vehicle in either instance . . . this is of incalculable worth.

“I have enjoyed the collegiality of two Inns, one only as a lawyer and one first as a lawyer and then as a judge. Both experiences have been essential to my role in the profession,” comments Judge Barbara Lynn.

 

Adds Judge Barbara Pearson:

Twenty-five years ago, in response to a Lawyers Weekly article seeking judges and lawyers committed to excellence, professionalism, ethics, and civility, I joined as a newly appointed judge. It has been the best experience of my legal career. I have formed lasting friendships with lawyers and judges with whom I might not have crossed paths. Judges from various state courts (the Supreme Judicial Court and the appeals, probate, juvenile, superior, and district courts) join with government attorneys and private practitioners every month for dinner and a team presentation. Our presentations range from theatrical to practical on historical to current issues that affect the practice of law and our courts. Because we sit with the same team members for a year, we have the good fortune of forging collegial relationships.

Describing the benefit the format brings to him and fellow Inn members, Tom Comerford reports:

One of the advantages our Inn enjoys comes from holding our meetings at Wake Forest Law School. The social event kicks off the evening and lasts for 30 to 45 minutes and then we adjourn to the courtroom for a one-hour program. If we have judges as guests, we recognize them at the beginning of the meeting. Judges typically participate in discussions and provide an important perspective to the continuing legal education provided by our programs. When the programs are completed, we move to the dining area of the commons. There we divide up so that there are judges, masters of the bench, barristers, professors, and law students at each table. We have a chance to get to know each other better, discuss the program, and talk about anything of interest to the folks at each table. This is a great time for the judges, lawyers, and law students to get to know each other as people, rather than participants in the civil and criminal justice systems. At the end of the meeting, we have picked up an hour of continuing legal education, had an enjoyable dinner, made new friends, and strengthened existing friendships. Invariably, there have been opportunities to mentor young lawyers and law students. All of this takes place in a setting where all of the participants are comfortable.

At present, there are more than 2,600 judges and more than 31,000 members involved in the 380 American Inns of Court across the country. Judges are an integral part of the education programs and the formal and informal mentoring that occur within each Inn, giving each judge the opportunity to improve the quality and integrity of advocacy. Inns provide a venue for judges to stay connected with attorneys in different practice areas, law professors, deans, in-house counsel, and others who do not have a litigation practice. Inns also provide judges the opportunity to give back to the profession; to emphasize the critical importance of professionalism, ethics, civility, and professionalism; and to build confidence in the courts through public interest and involvement in the law beyond the bench. Finally, judges benefit from the broad variety of education programs within Inns and contribute to the exchange of ideas on innovations that might benefit courts, judges, lawyers, and litigants.

Further information on the American Inns of Court is available at http://home.innsofcourt.org

Endnotes

1. Resolution Adopted Unanimously by Members of the Ad Hoc Committee of the Judicial Conference of the United States on the American Inns of Court at its meeting in Washington, D.C., October 26–27, 1983.

2. Letter from Judge A. Sherman Christensen to Chief Justice Warren E. Burger dated January 8, 1981, referring to a soon to be submitted report. Letter from M. Dayle Jeffs to members of American Inn of Court I dated April 10, 1981, referring to a report on pilot program to be made to Chief Justice Burger about May 15.

The contributors to this article

W. Thompson (Tom) Comerford Jr. is the senior partner at Comerford Britt, LLP in Winston Salem, North Carolina, and a highly experienced civil litigator with special expertise in aviation accidents. He is a member of the American Inns of Court Board of Trustees and the immediate past president of the Joseph Branch American Inn of Court.

Justice Randy J. Holland served on the Delaware Supreme Court for 31 years. Now Senior Of Counsel at Wilson Sonsini Goodrich & Rosati, Justice Holland is a prolific author, long-time professor, and noted expert in corporate law and corporate governance. A former president of the American Inns of Court, Justice Holland remains active in several American Inns of Court in Delaware.

Justice William C. Koch Jr. is a former justice of the Tennessee Supreme Court. Prior to his appointment to the court in 2007, he served 23 years on the Tennessee Court of Appeals. He retired from the court in 2014 to serve as dean of the Nashville School of Law. Justice Koch is vice president of the American Inns of Court and president of the Harry Phillips American Inn of Court.

Judge Kent A. Jordan serves on the U.S. Court of Appeals for the Third Circuit and served previously on the U.S. District Court for the District of Delaware. He serves on the American Inns of Court Board of Trustees, is a member of the Richard S. Rodney American Inn of Court, and is an honorary member of the Randy J. Holland Delaware Workers’ Compensation American Inn of Court.

Judge David W. Lannetti is a circuit court judge in Virginia’s Fourth Judicial Circuit and an adjunct professor at William & Mary and Regent University Schools of Law. He is past president of the James Kent American Inn of Court and chairs the Virginia State Bar Standing Committee on Professionalism.

Chief Justice Donald W. Lemons has served on the Supreme Court of Virginia since 2000. He is Distinguished Professor of Judicial Studies at Washington and Lee University School of Law, immediate past president of the American Inns of Court, and an Honorary Master of the Bench of the Honourable Society of Middle Temple. He remains an active member of the John Marshall American Inn of Court.

Judge Richard Linn is a senior judge of the U.S. Court of Appeals for the Federal Circuit with a deep expertise in intellectual property law and an unwavering commitment to civility and professionalism in the practice of law. Judge Linn is an active, honorary, emeritus, or alumni member of eight American Inns of Court and is renowned for his role in the formation of the more than 25 IP American Inns of Court.

Chief Judge Barbara M. G. Lynn, U.S. District Court for the Northern District of Texas, has chaired the ABA’s Section of Litigation and its Judicial Division, as well as the Committee on the Administration of the Bankruptcy System of the Judicial Conference of the United States. A member of the American Inns of Court Board of Trustees, she is also a member and past president of the Patrick E. Higginbotham American Inn of Court.

Judge Barbara Savitt Pearson, Lowell District Court, Massachusetts, is a member of the American Inns of Court Board of Trustees, serving on both the Strategic Planning and Judicial Task Forces. Judge Pearson is a past president of the Boston American Inn of Court and continues to serve on the Inn’s Executive Board.

Malinda E. Dunn

Malinda E. Dunn, Brigadier General, United States Army (ret.), has served as the executive director of the American Inns of Court since 2011. She is a graduate of the Washington & Lee University School of Law and is proud to have served more than 28 years as a judge advocate in the United States Army.