Over a year ago, the Plain Dealer published what may turn out to be a prophetic story, because for their next act, Republicans in the Ohio General Assembly will be making an effort to place a Constitutional amendment on the ballot during next year’s primary, an election that should see a majority of their base turn out to select their presidential candidate. The amendment is simply the first step in the process of overhauling the practice of law in Ohio. Once the oversight of the practice of law is removed from the Constitution (by vote) and successfully entrenched in the Ohio Revised Code, Ohio’s lawmakers will implement an evaluation system for attorneys that will provide judges with the necessary oversight to remove unsuccessful attorneys from the courtroom. The rationale for this move is to expedite the judicial process in both civil and criminal courts, with the state expecting to realize a savings of up to $500 million annually.
First, the reason for the Constitutional Amendment:
This is quite simple. Currently, Article IV, Section 2(B)(1)(g) of the Ohio Constitution grants the Supreme Court of Ohio exclusive jurisdiction to regulate admission to the practice of law in Ohio. As a result, the Ohio General Assembly has no authority to make changes to the process of admitting individuals to practice law (to the bar) in Ohio. That authority rests solely with the Supreme Court of Ohio. In order to implement the evaluation system they desire, the legislators must first amend the Ohio Constitution to remove that one small line. And what better time to get this on the ballot than when many Republican voters will be selecting a presidential candidate and Democratic voters are staying pat with President Obama?
Concurrently, Governor Kasich and his buddies in the statehouse will be enacting a bill to accompany the amendment that will not only spell out the process of getting admitted to the bar, it will also contain substantial changes to the process that are intended to increase attorney accountability and, as mentioned previously, save Ohio millions of dollars in expenditures that are a result of perceived inefficiencies in the current legal system.
An exclusive excerpt from this not-yet-released legislation:
Sec. 119.093. (A) Not later than July 1, 2013, the Supreme Court of Ohio, in consultation with judicial representatives from the Courts of Common Pleas, shall adopt a standards-based attorney evaluation policy that conforms with the framework for evaluation of attorneys developed under section 119.0931 of the Revised Code. The policy shall become operative on the date of enrollment of the policy and shall be enforced without prejudice upon all attorneys licensed to practice law in the state of Ohio.
(B)(1) The judicial representative of the Court shall conduct an evaluation of each attorney at least once each calendar year, except as provided in divisions (C)(2) and (3) of this section. The evaluation shall be completed by the first day of May and the attorney shall receive a written report of the results of the evaluation by the twentieth day of May.
(2) If the Court has entered into a professional practice improvement contract with the attorney pursuant to section 119.0932 of the Revised Code, the Court shall evaluate the attorney at least twice in any calendar year in which the Court may wish to declare its intention to disbar the attorney pursuant to division (B), (C)(3), (D), or (E) of that section. One evaluation shall be conducted and completed not later than the fifteenth day of June and the attorney being evaluated shall receive a written report of the results of this evaluation not later than the twenty-fifth day of June. One evaluation shall be conducted and completed between the tenth day of July and the first day of October and the attorney being evaluated shall receive a written report of the results of this evaluation not later than the twentieth day of October.
(3) The Court may elect, by adoption of a resolution, to evaluate each attorney who received a rating of accomplished on the attorney’s most recent evaluation conducted under this section once every two calendar years. In that case, the biennial evaluation shall be completed by the first day of May of the applicable calendar year, and the attorney shall receive a written report of the results of the evaluation by the twentieth day of April of that calendar year.
(C) Each evaluation conducted pursuant to this section shall be conducted by one or more of the following:
(1) A judge with at least six years of experience in the practice of law who has been elected by majority vote;
(2) A judge with at least six years of experience in the practice of law who was appointed by the Governor to fill a judicial vacancy;
(3) An attorney designated to conduct evaluations under an agreement providing for peer review entered into by Supreme Court of Ohio and approved by a majority vote in the General Assembly.
(D) The Court shall include in its evaluation policy procedures for using the evaluation results for decisions regarding disciplinary action, continuing legal education, and for disbarment of poorly performing attorneys. Years of experience in the practice of law shall not be the basis for a decision to disbar an attorney.
Sec. 119.0931. (A) Not later than October 31, 2012, the Supreme Court of Ohio shall develop a standards-based state framework for the evaluation of attorneys. The framework shall establish an evaluation system that does the following:
(1) Provides for multiple evaluation factors, including the decision of a judge or jury, which shall account for fifty per cent of each evaluation;
(2) Is aligned with the Ohio Rules of Professional Conduct adopted by The Supreme Court of Ohio;
(3) Requires observation of the attorney being evaluated, including at least two formal observations by the evaluator of at least thirty minutes each in the courtroom;
(4) Assigns a rating on each evaluation in accordance with division (B) of this section;
(5) Requires each attorney to be provided with a written report of the results of the attorney’s evaluation;
(6) Identifies measures of professional conduct and legal proficiency for specializations and practices for which the courtroom dimension prescribed does not apply;
(7) Provides for legal education and mentoring to accelerate and continue attorney growth and provide support to poorly performing attorneys;
(B) For purposes of the framework developed under this section, the Supreme Court of Ohio also shall do the following:
(1) Develop specific standards and criteria that distinguish between the following levels of performance for attorneys for the purpose of assigning ratings on the evaluations conducted under section 119.093 of the Revised Code:
(2) For specializations and practices for which the courtroom dimension prescribed under section 119.093 does not apply, develop a list of legal examinations assessments that measure mastery of the content for the appropriate specialization, which may include the Ohio Bar Examination or the Multistate Bar Examination.
Another section of the bill requires the lowest performing 5% of attorneys to re-take the bar. After all, we need to make sure they know their content.
Ok, so I made that all up. Well, sort of. What you just read was the language from Ohio’s newly signed budget bill about the evaluation of teachers, modified to apply to attorneys and still just as absurd to try and implement.
The major assumption I made about evaluating attorneys based on their court outcomes is a similar flaw made by the Republicans who have adopted the budget. Just as there are many attorneys who rarely, if ever, stand in front of a judge or jury, the budget proposes to use standardized test data that exists for only 30% of teachers. The rest will just be made up later (contradictory research be damned).
But, since the Republicans DID choose to adopt this evaluation system for teachers, then I challenge them to adopt similar requirements for ALL professions that have an impact on the state budget. So why not start with attorneys?