Discussion on the Feasibility of Attorney Evaluation

Introduction

Calls for judge evaluation (excluding official performance appraisal systems) have long been resounding. During this period, the Taipei Bar Association conducted two evaluations, yet only published the list of competent judges while failing to disclose poor-performing ones, leaving much to be desired. Currently, the Judicial Reform Foundation is vigorously engaging in judicial evaluation work. Beyond commending outstanding judges, it will also, after rigorous verification procedures, publish a list of unsuitable judges, the impact of which can be readily imagined.

Attorneys have long enjoyed the reputation of being "jurists out of office" and constitute an indispensable part of the judicial system in a state governed by the rule of law. Therefore, the competence and character of attorneys directly concern the soundness of the judicial environment while closely relating to the rights and interests of ordinary citizens who act as parties. Consequently, even though the legal profession is a liberal profession, should it remain entirely free from oversight? If the answer is negative, who should exercise oversight? How should it be conducted? How should it be effectively implemented? And how should the results of such oversight be handled? All these questions await our further deliberation.

Explanation of the Necessity for Evaluation

Law is a liberal profession. Some argue that letting market forces naturally weed out the inferior is sufficient to retain the elite. However, hampered by the underdevelopment of information in the legal market, ordinary citizens—aside from relying on personal introductions or admiring well-known senior attorneys frequently exposed in the media—have virtually no appropriate channels to obtain information for retaining an attorney that suits their specific needs. Under such blind reliance on personal referrals or superstition regarding big-name lawyers, it remains doubtful whether citizens' own rights and interests can be best maintained and protected.

Some commentators may argue that a disciplinary system is already in place to constrain attorneys, making further evaluation redundant and potentially undermining the spirit of attorney self-governance through excessive checks and balances. At first glance, such concerns do not seem groundless, but upon closer scrutiny, they are actually unfounded. Although the attorney disciplinary system is generally comprehensive, its implementation in practice is appalling (please refer to the review of the current state of attorney discipline in this issue). Furthermore, attorney discipline is initiated by courts, prosecutors' offices, and bar associations only when an attorney violates the Attorney Regulation Act or the Code of Ethics for Attorneys. Yet, courts, prosecutors' offices, and bar associations are frequently constrained by networks of complicity and personal sentiments, choosing to remain silent. Parties who are genuinely victimized by attorneys violating the Attorney Regulation Act or ethical norms are instead reduced to mere whistleblowers, and the limited effectiveness of this mechanism is thus clearly apparent. Therefore, as mentioned above, since attorneys are part of the judiciary and serve as jurists out of office, just as sitting judges necessitate evaluation because their exercised powers directly impact people's rights and judicial dignity, attorneys—even as a liberal profession—should likewise be subject to evaluation for the same reasons. This serves to weed out the inferior and retain the superior, thereby upholding the dignity of attorneys and the judiciary while protecting the rights and interests of parties.

Discussion on the Feasibility of Establishing an Attorney Evaluation System

While fully recognizing the necessity of attorney evaluation, how should evaluation be conducted? Who should conduct the evaluation? And how should the results be handled afterwards? There are numerous technical hurdles that urgently need to be overcome. Below, based on the author's modest opinions, I offer some thoughts on its feasibility:

1. How to Evaluate
   Judge evaluation can be carried out through courtroom observation and judgment evaluation. Attorneys might also be subject to courtroom observation; however, because attorneys do not have fixed court dates like judges that can be systematically observed, one can only rely on random sampling, which may lack objectivity. Additionally, since attorneys must maintain confidentiality regarding their practices, bar associations also find it difficult to conduct case-handling evaluations for attorneys akin to those for judges' judgments. A more feasible approach would be for bar associations to commission organizations such as the Taiwan Judges Association, the Taiwan Women Judges Association, and the Association for Prosecutors Reform to conduct the evaluations. The bar associations would provide the membership roster in advance, along with items subject to evaluation and standardized evaluation forms. When judges and prosecutors encounter attorneys acting as defense counsel, litigation agents, or agents for private prosecutors during proceedings, they could simultaneously evaluate those attorneys as part of the case-handling process.
   Naturally, this approach also has blind spots. First, attorneys specializing in non-litigation matters and senior partners in large law firms rarely have the opportunity to appear in court, resulting in rare opportunities for evaluation. Second, due to significant variations in attorney caseloads, attorneys who frequently appear in court may inadvertently be evaluated with vastly different frequencies. Third, judges and prosecutors in metropolitan areas are already overburdened with paperwork; whether they have the spare capacity to conduct evaluations on behalf of others, and whether they can conduct them conscientiously, also remains questionable.
   Any system has its flaws, so one must consider whether these flaws can be overcome and whether the disadvantages outweigh the advantages. Regarding the three blind spots of the aforementioned evaluation method, statistical methods already exist to resolve and adjust for errors in the second point. For the third point, thorough communication can be conducted beforehand with organizations willing to cooperate in attorney evaluation work, combined with statistical methods to adjust scores. Only the first blind spot is relatively difficult to overcome; nevertheless, if the number of attorneys falling into this category is small, this evaluation method still retains its value. Moreover, if supplemented by anonymous peer evaluations conducted by fellow attorneys who have co-counseled or litigated against each other in the same cases, the objectivity should be even higher, making it well worth a try.
   
2. Evaluators
   Since ordinary parties are unfamiliar with the law and find it relatively difficult to accurately evaluate attorneys, the author believes that, in addition to being hosted by bar associations based on the principle of attorney self-governance, appropriate evaluators should simultaneously include judges, prosecutors, and attorneys themselves, evaluating from various perspectives to achieve higher accuracy and credibility.
   
3. Handling of Evaluation Results
   If there is no further action taken after evaluation, the evaluation loses its meaning. As for how the results should be handled, neither the current Attorney Regulation Act nor the Code of Ethics for Attorneys provides explicit provisions, which thus requires exploration. This will be reviewed from two aspects:
   
   1. Evaluation results can be ranked from best to worst. Should this ranking order be published? The author believes that a comprehensive publication is inappropriate; it may be advisable to publish only the top and bottom several tiers. The reasons are, first, to avoid causing excessive shock to the entire legal profession. Second, publishing the rankings of attorneys falling between these two extremes holds little significance regarding the purpose of evaluation, whereas publishing the best and worst attorneys serves as an encouragement and a warning.
   2. Attorneys identified as the best upon publication could be considered for commendation on Attorney's Day. For the worst-performing attorneys, consideration could be given in the future to amending the Code of Ethics for Attorneys to add disciplinary bases—such as issuing a reprimand for appearing on the list for two consecutive years, or suspending practice for a certain number of years for appearing on the list for three or five consecutive years—to serve as a clear warning. Even if amendments or implementation prove difficult, the mere act of publishing the list should be sufficient to make all attorneys cautious, apprehensive, and conscientious in elevating the service quality of their "core profession," which still holds positive significance for the judicial system as a whole and the protection of parties' rights and interests.

Conclusion

To most fellow attorneys, attorney evaluation may be deemed utterly unacceptable. Braving universal condemnation, the author proposes this concept and attempts to explore its necessity and feasibility, seeking guidance from seniors and experts.

In the past, the effects of attorney self-governance and self-discipline have consistently been lackluster. If an attorney evaluation system can be established through this means to render attorney discipline sounder and their status and image more exalted, it would undoubtedly mark a major step forward for attorney self-governance and self-discipline.