1:21 PM EDT, October 22, 2012
The general public has never been especially fond of lawyers or judges. When Gallup polls Americans asking what professions they view favorably and which they view negatively, the lawyers get a thumbs down every time — although, on the bright side, the federal government and the oil industry are rated considerably worse.
Nevertheless, as the old saying goes, you can hate lawyers until you need one. That's when they become invaluable in allowing a family to adopt a child or prevent an innocent person from being convicted of a crime or in upholding terms of a business contract.
That's something voters need to keep in mind when they go to the polls in November. Of the seven statewide questions on the ballot, the first two — surely the least talked about of all the referendums and potentially lost in all the heated debate over gambling, marriage and college tuition rates for illegal immigrants — has to do with requiring Orphans' Court judges in Baltimore and Prince George's counties to be lawyers.
A lot of Maryland residents probably aren't familiar with the Orphans' Court, the three-judge probate court in each county where disputes over wills and estates are handled. It's an arrangement spelled out in the state's constitution and dates back to Maryland's founding, a time when estate settlements were far simpler than today. It even draws its name from old England of centuries ago, specifically from London's Court for Widows and Orphans.
As appealing as it may sound to have a layman handle family disputes — after all, King Solomon was no member of the Maryland bar — it's not a good policy for complex legalities where such arcane matters as the rules of evidence and civil procedures can be critical. Two years ago, we endorsed (and voters subsequently approved) a similar law to require Baltimore City Orphans' Court judges to be lawyers, and for good reason — the city court is the busiest in the state.
Baltimore and Prince George's counties' courts are not far behind in terms of caseload. The requirement that Orphans' Court judges be lawyers probably ought to be imposed statewide rather than piecemeal, county by county, but the smaller rural counties where the courts are not so busy as their counterparts in Central Maryland have long objected to the change. Thus, Questions 1 and 2 are the best remedy available.
Is there a drawback to barring non-lawyers from judgeships? We don't see one. Just as you wouldn't want someone to perform surgery, no matter of thoughtful and careful, if he or she was not properly educated in the field, there's no call to expect that from a court.
Make no mistake, a lot of Orphans' Court decisions are fairly routine. Judges may be evaluating assets or making sure distributions have been made correctly to heirs. But then District Court judges sometimes handle pretty routine matters of speeding tickets or a tenant failing to pay rent, too. That doesn't mean they don't require a law degree.
Unfortunately, sometimes estates are disputed, and that's when Orphans' Court judges must hold hearings, weigh evidence and interpret the law. Lawyers argue the cases. Large sums of money may be at stake. Surely, it's not too much to expect the judges who hear those cases to understand the law as well as the advocates who appear before them.
Under current law, lay judges must have their rulings reviewed and co-signed by a fellow judge who is a lawyer. That's not a requirement imposed on judges with law degrees. So requiring all judges to be so qualified should also allow the courts to operate more efficiently.
Maryland voters are likely to endorse the measure. They approved the city requirement in 2010 by a greater than four-to-one margin. Still, when there's anything involving lawyers, it's wise to remind the public that they have their uses. As Charles Dickens once observed, if there were no bad people, there would be no good lawyers. Probate is just one of those places where good lawyers are required.
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