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Self-policing doesn't sit well with consumer group
Star-Ledger - October 3, 1999

Lawyers don't play by the rules that apply to other business people. Lawyers, in fact, make their own rules. In many states, including New Jersey, the consumer protection laws don't even apply to lawyers.

What's so special about this profession, that it gets special treatment? After all, lawyers provide a service the way other professionals do. The public pays lawyers to practice law, the way they pay plumbers to fix their sinks or veterinarians to treat their pets.

James C. Turner, for one, thinks lawyers need more outside supervision. Turner, the executive director of HALT, a Washington, D.C.-based consumer group aimed at lawyers, isn't surprised at the public opinion po s t at put awyers at the bottom of the heap, along with used car salesmen, in terms of trust.

"The perception is that it's a boys club and people get away with a slap on the wrist and a wink of an eye," Turner said. "Sadly, that's often not just perception, but reality."

HALT would like to make lawyers more accountable to the public at large. Its members believe that ordinary citizens, not lawyers, should run the disciplinary process. Attorney discipline should be conducted in the open. And lawyers should have to obey the same consumer protection laws that apply to other business people.

In New Jersey, the state Constitution requires that the state Supreme Court regulate the legal profession. The justices of the court, of course, are all lawyers. So are the members of the local ethics committees who investigate citizen complaints of lawyer misconduct.

But even if the courts set the standards of conduct, that doesn't mean that lawyers are necessarily exempt from consumer protection laws. At least, that's how courts in states like Connecticut and Washington have ruled. These states make a distinction between the practice of law and the business of law.

For example, in Washington, the state's consumer protection laws do not apply to issues of professional misconduct, but they do apply to billing practices. Turner thinks that consumer protection laws are only a part of the solution. He strongly believes in public participation in the disciplinary process and in public disclosure of the results of that discipline.

"In any area of human endeavor, you need to have outside oversight that's independent," Turner said. "Otherwise, it gets insular and values get distorted in favor of the particular group. That's not good for anyone, either in the profession or out of it."

Not everyone agrees with Turner that self-regulation is a bad idea for lawyers. Raymond R. Trombadore of Somerville qualifies as an authority on the subject, having recently concluded six years as chair of the American Bar Association's Standing Committee on Professional Discipline.

"Should the profession be self- regulating? Yes, because the profession is best equipped to handle it," he said.

Trombadore asks a few simple questions. Don't like the courts regulating lawyers? That's fine. Who do you get, then? Is a state agency whose members are chosen by the governor and/or the legislature any improvement? Trombadore thinks not.

Taking lawyer regulation away from the courts would undermine the independence of lawyers to represent unpopular clients and pursue controversial causes, he said. "The lawyers would be subject to political pressure from the people regulating them," Trombadore said.

He points to the recent crisis in California, where the state bar virtually shut down its disciplinary process for a year after Gov. Pete Wilson vetoed a spending bill passed by the state legislature.

"What happened in California is the best argument for self-regulation I know," said Trombadore. "The lawyer disciplinary process effectively stopped. Lawyers who should have been disbarred were still practicing. Finally, the state Supreme Court, which itself is an elected body, got the courage to intervene and established assessments on lawyers to get the system going again."

California, unlike New Jersey, has an integrated bar, meaning that all practicing lawyers must join to be licensed. Of the 32 mandatory bars in the United States, only seven require the legislature to approve dues rates, and six of those seven bars go to lawmakers only when they request a dues increase. Only in California must the legislature approve dues rates each year, whether they rise, stay the same, or fall.

New Jersey has made some strides in lawyer accountability in recent years, even by Turner's standards. The state now makes certain aspects of its attorney discipline system public. Lawyers are required to engage in fee arbitration, if a client wishes, before gaining the right to sue the client for an unpaid bill. Lawyers are now subject to random audits of their financial records.

Turner, however, thinks much remains to be done.

"The disciplinary process simply doesn't work in a lot of cases," he said. "It's good for lawyers who commit the most egregious types of thievery. But where there is simple neglect, incompetence or a simple fee dispute between lawyer and client, it works a lot less well."

Even when it loses a battle, HALT sometimes gains allies in the fight for lawyer accountability. A year ago, the organization submitted a friend of the court brief to the Illinois Supreme Court in an effort to convince the justices that the state's consumer protection law should apply to complaints of excessive fees. A majority of the court, relying in part on a 1992 New Jersey Appellate Division decision, disagreed. But one justice saw it another way.

"Holding attorneys to the same standards of honesty and fair dealing that apply to other business people will inevitably affect the practice of law," Justice Moses W. Harrison wrote in dissent. "In my view, the results can only be positive."