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Setting New Standards: An Interview With Chancellor Alan M. Feldman

by Daniel A. Cirucci

Spring 2006, Vol. 69, No. 1

Daniel A. Cirucci: Why did you want to become Chancellor of the Philadelphia Bar Association?

Alan M. Feldman: I confess that being Chancellor has been a dream of mine for many years. I became involved with the Bar Association shortly after I became a lawyer, and I quickly learned that Bar Association activity could be both enjoyable and rewarding. Over time, I learned that the Chancellorship, in particular, was a position in which you really had an opportunity to make a difference: for my colleagues, for the judicial system of which we’re a part and for our larger community. That prospect of being able to make policy and produce positive change was and is very exciting to me and has always motivated my Bar service.

You became involved in the Young Lawyers Section (now the Young Lawyers Division) right from the beginning. What made you join?

I had participated as a volunteer in a program called LegalLine and spoken at a seminar for the Young Lawyers that related to my own trial work. These nice experiences caused me to become interested in what the YLS was doing. I was also intrigued by the fact that the young lawyers serving on the Executive Committee of the Young Lawyers Section were folks I would not normally have come into contact with if I just confined myself to my office and my trial practice. I decided it was time to broaden my horizons, so I ran for Executive Committee of the Young Lawyers in 1983, and I had the great good fortune to be elected Chair in 1986. That was a wonderful year, full of activities and projects and very rewarding experiences. I will never forget it.

You later joined other organizations and became the president of the Philadelphia Trial Lawyers Association. Would you say you’ve always been a joiner, Alan?

I would say that when I became a lawyer, I learned the importance of what we now call networking, and what I understood back then to be simply a wonderful opportunity to meet new people. My professional service, with the trial lawyers and other organizations, has I think always given back more to me than I contributed. That’s why I have always encouraged the lawyers at our firm to join and participate in our Bar and other associations because that interaction unquestionably makes us better lawyers and better people. Best of all were the relationships I formed; I count many of the friends I made in my Young Lawyer days among my best friends today.

When you were in college you started your own business. Was that out of pure necessity?

My parents worked very hard and they were great providers for me and my brother. But when it came time for college, there wasn’t money available to pay for either of us to go out of town to school. So we knew we would have to remain local, and even though college back then was much less expensive than it is today, it was still a challenge for us. I applied for and received a Senatorial Scholarship through my political volunteer work for Herb Fineman, then Speaker of the Pennsylvania House of Representatives, and for Senator Freeman Hankins. That helped to defray my college expenses a bit. I also worked for four years during college for a law firm that was then called Ettinger, Poserina, Silverman, Dubin, Anapol & Sagot, a firm that was devoted in part to civil trial work. I grew to enjoy and take an interest in the kind of work that the lawyers did, and they were kind enough to allow me to learn more about some of the cases.

So, was it when you were working for a law firm that you developed your interest in the law?

Working for the firm really fueled my interest in becoming not only a lawyer but becoming a trial lawyer. Once I was exposed to the courtroom and to examination and cross-examination, I knew what I wanted to do. My clerkship with Judge Stanley Greenberg, during which I had a chance to see really great trial lawyers in action, sealed it. I wanted to be a trial lawyer.

What was it that appealed to you? Was it the drama, the causes, the personalities?

I think it was all of those things and also the fact that trial lawyers must be able to respond extemporaneously to situations that develop on the ground. You’ve got to be able to deal with surprising testimony or exhibits that you didn’t expect or rulings that are confounding and adapt to them. I guess I liked the challenge.

Returning to your year as Chancellor, you have set judicial independence as a major priority this year. What moved you to make it a priority?

For a long time, judicial independence was something I simply took for granted. I assumed that judges were apolitical, that they would call them as they saw them and make decisions solely based on the law and the facts, without worrying about political repercussion. What changed for me was the Terri Schiavo case, in which a domestic dispute that historically had been under the jurisdiction of the state courts was decided consistent with the law and the facts, and reviewed according to that state’s appellate practice and confirmed. But there were some highly placed politicians, who in this case happened to be quite conservative, who didn’t agree with those rulings. And turning the thing on its head, they accused the judges who had decided the Terri Schiavo case in state court of being activist judges. These politicians demanded jurisdictional changes that took the case out of state court and gave it to the federal courts. It was the most activist kind of interference with judging you could ever imagine—creating a special jurisdiction for federal courts to hear a particular case in the express hope that the federal judges would arrive at a different decision.

It was a shameful episode in our history. Those federal judges that had the matter assigned to them, however, had the courage to look at the matter, apply legal principles and say that there was no reason to disturb the rulings of the Florida state court. That upset and excited some of those politicians even more. And they began calling for limits on the authority of federal judges and for jurisdictional changes in what sort of cases federal court judges could decide. And those kinds of threats to judicial independence continue even today. I recently received a mailing from a current United States senator, in which he sets forth his promise to the people of his state to do something about the federal courts, which have “all but declared war on our liberty and our Judeo-Christian heritage.” It’s that kind of polemic from people who should know better that directly threatens the independence of judges and is a concern to me and many others. This is an issue we can’t afford to ignore and that needs to be confronted by the Philadelphia Bar Association.

Is it fair to say that we’re involved in an ongoing struggle about the role of judges?

We are. But it’s a struggle that is not well understood by many of our fellow citizens. It’s a struggle that lawyers must specifically address because we’re the ones who understand just how serious the threat to judicial independence is to our democracy. We have to accept this challenge and respond to it, despite any political backlash. There is no one else.

Do you believe this will have a chilling effect on our judges?

If this current trend continues, it’s possible that judges may be afraid to make decisions that they consider to be unpopular. That’s particularly true in states where judges are popularly elected as opposed to appointed. Federal judges know they are appointed for life, they can make any decision that is consistent with their judicial responsibilities, and they are insulated from political repercussions. They can’t be fired and, unless they commit some sort of crime, they can’t be impeached. That’s not true, however, of state court judges who are elected, as is the case in Pennsylvania. So when a judge in Pennsylvania makes a decision that is regarded as unpopular, even if it was a decision that was compelled by the law and the facts, that judge can be tossed out of office when he runs for retention. I can’t think of any higher mission that our Philadelphia Bar Association has than to protect and defend judicial independence, by explaining how important it is to allow our courts to decide cases without fear of political reprisal.

Supporting our public interest legal community and the programs that help those who need but cannot afford legal help has always been a big priority of the Philadelphia Bar Association. Our Bar Foundation has been dedicated to that for decades. But you’re coming at it from a new direction this year. Tell us what it’s all about.

I don’t claim credit for originating these new approaches; in fact, I think it’s appropriate for us to borrow great ideas from other bar associations and jurisdictions that have had some success with creative efforts to enhance funding for legal services or to increase pro bono hours, so I looked around. And ultimately, I decided to try a two-pronged approach. One prong focuses on funding for legal services. You’re absolutely right that as a bar association and as a legal community we have historically been committed to funding legal services, but the truth is that in recent years funding has been flat. The result is that legal services agencies are simply not able to meet the demands of our fellow citizens who need help—help with important matters such as whether they can stay in their homes or apartments, whether they have heat in the winter, or food to put on the table, or the medicines they need. No ifs, ands or buts, it’s the obligation of every member of the Philadelphia legal community to support legal services to make sure that everyone who needs a lawyer for one of these fundamental reasons has a lawyer. It’s a responsibility that extends not just to me and my colleagues in the private bar but to all of us—judges, city solicitors, district attorneys, public defenders and even the people who work in the nonprofit agencies. We all have a duty to step forward and help meet the challenge of providing legal services for those who can’t afford them.

How do we do it? The Bar Foundation has been great, but I thought we could do more with a consolidated, comprehensive, top-down campaign. I consulted with an expert who has been involved with funding for legal services plans and looked at what’s being done in other communities. And what made the most sense was to establish an achievable goal that all of us could meet, but which would substantially enhance the level of funding for legal services agencies in Philadelphia. That goal is for each law firm in the city of Philadelphia—large, medium and small—to contribute $300 for each lawyer they employ. There are some firms in town that have met that goal. There are many more that have not. The bottom line is that everyone should be able to meet that level of support for this pressing and urgent need.

We’ll be writing to every law firm in town to announce this plan and how it will be structured. We will be following up with the law firms to make sure that the commitments are made, with appropriate follow-through to realize the actual contributions. I’m confident that our law firms will meet this challenge, and that we will restore Philadelphia to the forefront of communities that support legal services agencies and the clients who need legal help.

For the record, this is money for legal representation and legal help for the poor, the indigent, the infirm, the disabled, abused women and children and others who need legal help but cannot afford it. There’s a tremendous need in our city.

When we were privileged enough to become members of the bar, we also undertook a responsibility to those less fortunate to provide legal assistance to them. We can still make a reasonable living and we can still focus mostly on our private practices. But all of us can take a few dollars out of our pockets—actually less than a dollar a day—to contribute to those who so desperately need our help. It’s just the right thing to do.

So, the first prong of your two-pronged plan is cash support for legal agencies. What is the second prong of your plan?

It’s our obligation under the Rules of Professional Conduct to provide pro bono services to people who can’t afford to hire us. I’ve struggled with how to increase the level of pro bono activity in our community; many of us want to help, but we’re so busy with our own practices and personal lives that some of us don’t make the effort to provide the pro bono service that is expected of us. Again, I didn’t conceive the idea, but the notion of marrying the obligation to provide legal services with our need to earn continuing legal education credits is very attractive to me. So I’ve proposed a plan that has been adopted in six other states: permitting CLE credit for qualifying pro bono service. I think it’s a terrific way of providing an incentive to lawyers to do the right thing, and to receive credit for it. I have asked a task force, chaired by Joe Sullivan, to investigate those plans in other states and to report back with evidence about whether they are as successful as they appear to be, and why. Then we can hopefully go to the CLE Board and to the Pennsylvania Supreme Court with our report and show how we can significantly increase the pro bono service of Pennsylvania lawyers. We would suggest a pilot project for a period of time to see if it works; it’s a win-win if it does. It will help our fellow citizens. It will give lawyers a chance to do good and satisfying and enriching work. And they can earn CLE credits while learning and helping others. I’m excited about the project and I’m looking forward to meeting with members of the Supreme Court after the report is completed to discuss it with them.

Now let’s switch gears and talk about merit selection and judicial selection. There’s an opportunity in front of us this year that hasn’t been here in a while. What is it?

It’s the introduction in 2005 of Senate Bill 100, which would create a bipartisan committee to appoint judges on a merit basis in the city and county of Philadelphia only. In light of the fact that there appears to be no statewide appetite for merit selection on the appellate level, Senators Vincent J. Fumo and Anthony H. Williams decided to try to limit the project to the trial courts in Philadelphia—the Common Pleas Court and the Municipal Court—and to bring merit selection initially just to our city, perhaps to serve as a model for other counties and even for the whole state if it is as successful as many of us hope it will be.

Bringing merit selection to our community is essential because the way we select judges right now just isn’t right. If the objective is to have judges who are competent, qualified and independent, then we need to look at what kind of system is most likely to produce those kinds of judges. The system we have now rewards candidates for judgeships who are well connected to ward leaders, who are effective fund-raisers and who have good ballot position or a well-known name. However, none of those things should qualify anyone to be a judge. If we’re electing a mayor or a governor or a legislator, those folks can announce what their positions are—how they’ll vote and how they stand on the issues. Judges are not allowed to discuss any issues that may come before them. In fact, judges are so handicapped from the outset in campaigning that even an informed electorate can’t truly make a decision about which judges deserve election over others.

When I advocate a merit system, I need my judge friends to understand that I am not in any way criticizing the fine judges who now serve our Philadelphia Common Pleas Courts and Municipal Courts. They are almost without exception able and hardworking judges of great integrity and keen intellect, and nice people as well. But they are not good judges because of our system; they’re good judges in spite of our system. What we want is a system that will allow even politically unconnected people or people who are not wealthy or who don’t get the top position on the ballot to still have a chance to be a judge. Serving on the court should be based upon qualifications, intellect, temperament, experience and integrity. Those are the things we believe a merit selection panel will consider and prioritize, thereby giving qualified judicial candidates, who may not have a shot in the existing system, a real chance at being judges in Philadelphia County.

So the panel could consider the same kinds of things that our Judicial Commission considers, the same types of objective and independent criteria, but this panel would have real power, which our Commission doesn’t always have.

We envision a broadly representative panel composed of lawyers and non-lawyers from both sides of the political spectrum, including all segments of the community. It’s not intended to take politics completely out of the process; indeed, the panel would be indirectly representative of the people—the district attorney, the chief defender, other elected leaders and civic organizations like our Bar Association would have designees on the merit panel. I’m confident that such a broad and diverse group of people would honestly consider and evaluate the qualifications of lawyers who want to be judges, and come up with a limited number of choices that the governor can appoint from, leading to a qualified, capable and respected judiciary not tied to any political party or interest group.

Tell me about your plans for a law practice management initiative at the Bar Association. I know you’re already under way on it. What’s going on?

The Philadelphia Bar Association has always done a terrific job in working with our courts and our community. But the Association, in my view, needs to do more to support the growth of law practices. What I have proposed is the creation of a Law Practice Management Division, devoted exclusively to helping lawyers and law firms grow and flourish and develop their practices. The Division would offer assistance to lawyers and law firms in the areas of marketing, technology and human resources that confront those of us who must be not only practicing lawyers, but businesspeople as well. That sort of assistance has not been offered at the local level, and it’s time that the Bar Association provided tangible benefits to our lawyers who want to grow and prosper. I have appointed a task force, chaired by Debbie Weinstein, that includes among its members managing partners from large, medium and small firms. The task force has met and will continue to engage in dialogue about how to best structure a Law Practice Management Division in order to confer the greatest benefit upon all of our members. Another component of LPM will be a free management consultation benefit to every member of the Bar Association. We intend to recruit experts in the fields of practice management, technology, marketing and human resources to offer one-hour consultations to all of our members without charge. It’s a real benefit that they might normally pay $150, $200 or $250 an hour for, but that they will receive at no cost simply by virtue of their membership in the Philadelphia Bar Association.

There will probably be some bumps in the road as we move forward with the development of this project, but we’re excited about it. It’s a new and different kind of benefit that only Philadelphia Bar Association members will enjoy, in contrast to members of other metropolitan bars that have no such comparable service. Adding value to membership in our Association is something we need to always be thinking about.

Do you expect members of the Bar Association will be able to avail themselves of this service before the end of the year?

I expect that by the spring of 2006, this service will be up and running and available to every member of the Philadelphia Bar Association.

What else would you like to talk about?

There are other projects that are of great interest to me that we’ve already begun working on. For example, when Andre Dennis was Chancellor in 1993, he announced goals as part of a five-year plan to look at the extent to which Philadelphia law firms were achieving diversity. Unfortunately, there’s been no comprehensive re-examination since. Last year’s bar-wide survey suggests that the improvement in diversity in area law firms has been very incremental and not what many had hoped for. It’s time that we take a critical look at ourselves again and that we institutionalize that examination by having annual conferences devoted to how the Philadelphia legal community is doing with respect to issues of diversity. I credit Nolan Atkinson with the inspiration for this project. I will appoint co-chairs to hold the inaugural conference on diversity-related issues this spring, under the direction of Chancellor-Elect Jane Dalton. We are hopeful that an annual event will help us explore constructive ways of enhancing diversity in our legal community.

Alan, you seem to have the ability to critically and objectively examine what you’re proposing, what you’re saying and what you’re doing. Where did that come from?

Thanks for the compliment, Dan; I’m not sure others would agree! But I do try to temper my enthusiasm for exciting new ideas with real-world pragmatism; it’s a by-product of managing a law firm. And you give me too much credit; I have been fortunate to have friends, colleagues and family—my wife, Maureen, has been a particularly wonderful advisor—who discuss ideas with me, who help me refine them and who work with me to develop policies and projects that are meaningful.

It’s all quite amazing. I pinch myself every day to remind myself that I really am the Chancellor of the greatest bar association in the United States. After all, I’m a kid from Wynnefield; I worked in a luncheonette. I never dreamed for a moment when I was younger that I would ever have an opportunity like this. Now that I have it, I know I need to make the most of the one year in which I will serve as the leader of the Philadelphia Bar Association. I promise I’ll do my best.