Topics in This Issue:
	Consumer Federation of America Adopts HALT-Endorsed Reforms NEWS 3 INVESTIGATION: Digging Deeper Into The Disciplining of NV Lawyers HALT Welcomes China's Director of Lawyers: During Exchange of Lawyer Regulation Ideas, HALT Offers American Model - With Caution Florida Bar Scrutinizes How Lawyers Get Disciplined

Consumer Federation of America Adopts HALT-Endorsed Reforms

At its annual meeting held in Washington, D.C. from March 10-13, 2004, the Consumer Federation of America adopted all of HALT's chief legal reform proposals. The Consumer Federation of America works to advance pro-consumer policy on issues like energy, financial services, health and safety, government accountability and telecommunications. At the annual meeting, member organizations discuss and vote on policy resolution proposals submitted by the Federation's Policy Resolutions Committee, comprised of the chairpersons of various subcommittees that meet each year to evaluate new policy ideas and propose resolutions. Consumer Federation of America resolutions help the set the policy agenda for the courts, Congress, and the White House as well as federal and state regulatory agencies. This year, HALT Associate Counsel Suzanne Mishkin was reappointed Chair of the Vulnerable Consumers Subcommittee. As Chair, she successfully urged the Consumer Federation of America to incorporate the following legal reform provisions into its 2004 Policy Resolutions Manual: CFA Endorses HALT Recommendation of Plain-Language Court Forms and Instructions CFA supports the use of court-provided forms to facilitate the filing of complaints for common causes of action and answers to those complaints. Landlord- tenant issues, family law, probate and small claims court matters are among the types of matters that should be included. Forms should include or be accompanied by plain-language instructions that allow non-lawyers to simply complete them. CFA urges courts to provide forms in languages appropriate to each community. CFA also supports permitting court clerks to answer procedural questions about court forms, as well as the creation of positions on the court staff dedicated to answering litigants' questions. CFA Endorses HALT Proposal to Raise Dollar Limits for Non-probate Procedures CFA supports the expansion of summary proceedings for administering small estates. Such proceedings allow families to settle estate (distribute assets) of their loved ones without having to endure long, complicated and expensive probate procedures. CFA Endorses HALT Recommendation for Increased Sunshine on Judges' Financial Interests CFA urges states to require judges to keep financial disclosure reports that detail information specified in the federal Ethics in Government Act, at a minimum. A person should make a request for copies of this information at the office of the clerk at the court in which the judge serves. CFA Endorses HALT Support for Mandatory Malpractice Insurance CFA supports state legislation requiring practicing lawyers, doctors and other professional service providers to carry a minimum level of professional liability insurance. When a service provider, in whom a consumer has placed a high degree of trust, has acted incompetently, negligently or deceitfully, the consumer should have the right to meaningful restitution. CFA Endorses HALT Mission to Hold Lawyers Accountable under Consumer Fraud Statutes CFA urges state legislatures to allow consumers (recipients of services) to seek meaningful recourse from all service professionals, including lawyers and doctors, under consumer fraud statutes. When a service professional defrauds, deceives or misleads a consumer, he or she should be held accountable under the state's consumer fraud statute. To learn more about HALT's project to reform lawyer discipline systems nationwide, click here. »

NEWS 3 INVESTIGATION: Digging Deeper Into The Disciplining of NV Lawyers

KVBC-News 3 Las Vegas, NV - February 26, 2004 Ever had a problem with an attorney? More often than not, complaints against Nevada lawyers fall on deaf ears. News 3 Investigator Glen Meek has been digging deeper into attorney discipline, and discovers some surprising statistics. According to a 2002 survey, if you complained to the state bar about a local lawyer, the odds are four to one the complaint was never even investigated. And if you believe that doctors take care of each other when it comes to professional discipline, wait until you see the case some people are making against lawyers. On a December night in 1996, a limo full of passengers collided with a small car on Interstate 15 near Flamingo Road. People injured in the limo filed a lawsuit, but not all of them were happy with their lawyer. "He never informed us of the settlement, number one, or that there was the possibility payment was going to be made." Teri Bedford says she never saw a dime of the 100 thousand dollar settlement, though the lawyer's sister, who was also in the limo, did. "He took that sum of money and gave it to his relative and left the rest of us out in the cold." So Bedford filed a complaint with the Nevada Bar Association against the lawyer. Bedford was astonished to learn a gag order, known as rule #121, prevented her from talking publicly about her complaint unless the lawyer was formally charged. Bedford sued the bar, and won the right to speak out about her case, though her lawyer was never sanctioned. "When they allow unethical lawyers to continue to operate, that's not a public service." "I don't think a gag order is a bad thing. I think it's simply protecting the confidentiality of both sides." John Curtas is on the board of governors for the bar association. He says without the gag rule, lawyers would find their reputations trampled by anyone with a grudge, legitimate or not. But consumer advocates wonder why lawyers are treated differently than other business people. Whether it's the Better Business Bureau, whether it's the contractors board, whether it's the state consumer affairs division, you can go and check a person's record as to number of complaints. "I could see why, as a consumer reporter, I could see why you'd want to do it, but as a person protecting both sides, both the public and the profession, I think there needs to be a balancing test employed, and I think it needs to be more delicate than just complete disclosure at all times." Nevada's ratio of complaints per hundred lawyers is second highest in the nation. Curtas doesn't dispute the numbers, but offers an explanation. "They don't call it sin city for nothing and lawyers are as susceptible to sin as anyone. And, unfortunately, we have a public trust and all this sin can sometimes tempt people to violate that trust." But are lawyers who violate the public trust being held accountable? According to an American Bar Association survey, of the 1,240 complaints made against Nevada lawyers in 2002, less than two dozen resulted in formal charges. And secrecy laws prevent the public from looking at the thousands of complaints that didn't result in sanctions. Suzanne Mishkin is with a legal reform organization called HALT. "Nevada residents have a right to this information, and it's questionable about why Nevada's bar is insistent about keeping the records under seal. What do they have to hide?" It's just a matter of being able to look at who's getting all those complaints. Might that not be enlightening to the public? Curtas says, "It might be enlightening, but it could also damage, irreparably damage, somebody's reputation who's done nothing wrong." Of course, if you don't get satisfaction from the state bar you can always sue your lawyer for malpractice. First you have to find a lawyer willing to sue a colleague. And there are other obstacles. "A legal malpractice case is a case within a case." Gary Logan is one lawyer willing to sue another. But he says people who take their attorneys to court face a double challenge. "In order to win, you have to not only prove your lawyer botched your case, but you also have to prove you would have won otherwise. So you've got two cases: The underlying case and the case against the lawyer. John Curtas says, It's a double hurdle you must jump, but that's just the nature of our legal system where you're trying to sue somebody for causing you harm, and a lawyer commits malpractice by not doing it. First you have to prove that someone else is responsible for that harm. Legal reform advocates would like to see less secrecy in the attorney discipline process and more public input. For example, when we asked the state bar to give us the names of people who sit on the panels that discipline lawyers, we were told that information was confidential. The bar would only tell us three people sit on each panel, two lawyers and one lay person. By the way, the lawyer that Teri Bedford complained about was originally given a private reprimand, but he appealed the decision. The panel that heard the appeal decided the lawyer did nothing wrong. To see HALT's 2002 Lawyer Discipline Report Card for Nevada, click here. »

HALT Welcomes China's Director of Lawyers: During Exchange of Lawyer Regulation Ideas, HALT Offers American Model - With Caution

On February 11, HALT Associate Counsel Suzanne Mishkin and Program Assistant Kristin Weber met with Gong Xiabong, Director of the Department of Lawyers within China's Ministry of Justice. The meeting, which was facilitated by the U.S. Department of State's Office of International Visitors, allowed Gong to learn about HALT's Lawyer Accountability Project, which advocates stronger consumer protections against unethical lawyers. China's legal profession, like so many aspects of the country, has undergone massive changes during recent decades. As the legal profession gains independence from the state and grows tremendously in size, Chinese officials, like Gong, want to be sure that the profession remains ethically responsible and adequately regulated. During his meeting at HALT, Gong showed great interest in the American system for disciplining lawyers. Mishkin and Weber detailed America's four main avenues for seeking recourse against an unethical ethical lawyer (lawyer discipline agencies; fee arbitration; client compensation funds; and legal malpractice lawsuits) while also identifying the ways in which each option falls short of fully protecting legal consumers. Mishkin and Weber also had the opportunity to gain an understanding of the Chinese system for regulating lawyers. A central difference between the American and Chinese systems for regulating lawyers is the involvement of the Chinese Ministry of Justice, which is analogous to the United States' Department of Justice. "The involvement of federal regulation in China's system lends a more objective element to the Chinese system," Weber says. "One of HALT's key criticisms of the American system is its self-regulation: lawyers policing lawyers." For the first time last year, China implemented a uniform national examination for lawyers. Looking ahead, the country intends to draft and enact codes of conduct for lawyers. As Gong will play a central role in the continued reform of the Chinese system, he was interested to hear what measures were in place in the U.S. and how those measures could be strengthened. Gong took a particular interest in client compensation funds and promised to bring the concept back to his colleagues in China.

Florida Bar Scrutinizes How Lawyers Get Disciplined

Palm Beach Post - March 5, 2004 By John Pacenti, Palm Beach Post Staff Writer JACKSONVILLE -- When The Florida Bar determined it was high time to take an extensive look at how it disciplines lawyers, it had no idea the genie it had unleashed. After announcing the initiative last June, the organization was deluged with e-mails and letters -- from attorneys, disgruntled clients and citizens at large. "It definitely struck a chord," said Florida Bar President Miles McGrane III of Coral Gables. "We thought this was going to be an in-house, parochial thing." The Bar last reviewed its disciplinary procedures in 1989, so this is the first opportunity for many to speak out about a process that can be time-consuming and infuriating to both attorneys and people who file complaints. The primary criticism is that investigations take too long, allowing unscrupulous lawyers to continue preying on clients. At the same time, lawyers facing an unwarranted charge can be left under a cloud for months. Other critics, including one lawmaker, say big firms and lawyers with connections to the Bar get the feather touch while the Bar cracks down on sole practitioners and minorities. Gabe Kaimowitz, a Gainesville lawyer and longtime Bar critic, wrote that the association isn't capable of investigating itself. "If it wants the truth, I'm afraid the organization can't handle it," Kaimowitz wrote. "My own personal hypothesis is that the system favors the 'white, Christian good-old-boys.' " Other lawyers argued that the system isn't broken. Roshani Gunewardene of Altamonte Springs wrote that, if anything, the Bar may be too zealous in pursuing obvious vendettas from losing or opposing parties in cases. "The grievance system should not be used to harass and humiliate any member of the Bar," Gunewardene's e-mail said. A lawyer from Jacksonville is pushing this extensive review: Henry Coxe III, a high-profile criminal defense litigator who has served on the Bar's board of governors since 1995. Admitted to the Bar in 1973, he received the Bar President's Award of Merit last June. The same month, he was named chairman of the 23- member Special Commission on Lawyer Regulation, which is examining the Bar's disciplinary process. The panel is composed of 22 lawyers, including prosecutors, judges and a law professor, and one non-lawyer. Judge Barry Stone of the 4th District Court of Appeal in West Palm Beach is a member. Coxe encouraged McGrane to look at lawyer regulation partly because the Bar now is spending $9.6 million a year policing the state's 73,931 lawyers. "It's a lot of money, and if we are spending that much money, we should be protecting the public," Coxe said. He cited another big reason: Florida lawyers in a 2003 survey said the profession's biggest problem is its public image. In 2002-03, the Bar opened 8,671 files against lawyers, with 383 resulting in disciplinary action -- fewer than 5 percent. Forty lawyers were disbarred, 26 resigned, 116 were suspended, 88 were put on probation and 113 were publicly reprimanded or admonished. The commission will recommend changes to the Bar's Board of Governors, which would in turn give suggestions to the Florida Supreme Court. The high court will have the final say over any changes to the disciplinary system. The review was supposed to take a year. But with so much interest in the issue, it's now expected to take twice as long. Last month, the Bar sent out 13,600 surveys to gauge opinion. The questionnaires -- due back March 31 -- were sent to more than 6,090 people who have made complaints, as well as 6,046 attorneys who have had complaints filed against them. "There's no predicting what the end result of this is going to be. Everything is on the table," said Coxe. There's much to look at. Attorneys don't get punished only when they pilfer trust accounts or are convicted of fraud. They get in trouble for failing to file court documents on time and a variety of other issues affecting their clients. But most of the time, Bar investigations lead to no discipline at all. Attorneys are far apart on what the commission should recommend to streamline the process and build public confidence. Broward County Assistant State Attorney Craig Dyer called the grievance process "irrational," "knee- jerk" and "heavy-handed." "Anyone can file a grievance, and I mean anyone. All it takes is a pen, a piece of paper, an envelope and stamp," Dyer wrote to the Bar last year. "The gracious Florida Bar investigates all." W. Reece Smith Jr., former president of the Florida and American bar associations, disagreed. "The problem is not that we're doing too much, but that we're doing too little," the Tampa attorney said in a September letter. McGrane thinks that, when all is said and done, the commission will suggest tweaking the system, not a major overhaul. "Other state Bars come and visit us to see how it's done," he said. "They consider us being on the cutting edge. But that doesn't mean it doesn't need to be looked at." HALT, a Washington-based legal consumer advocacy group, rated lawyer regulation in 2002. It gave Florida a C-plus, the second-best grade in the nation. Massachusetts received the highest ranking, with a B-minus. Pennsylvania and North Carolina each got F's. HALT gave Florida an "incomplete" on promptness, saying there was no record of the Bar's timeliness in filing formal charges and imposing sanctions on attorneys once complaints are received. And overall, HALT said it found a national pattern of "delay, secrecy and toothless sanctions." Kathleen Williams, the federal public defender in Miami and a member of the commission, said finding the right solutions for the disciplinary system is a lot like Goldilocks trying to find the perfect porridge. She said that at the very least the review will demonstrate the Bar has enough integrity to police its own members. "The only way that can be ensured is to make sure the mechanism for reviewing attorney conduct is the best," she said. Click here to read the rest of this article... To see HALT's 2002 Lawyer Discipline Report Card for Florida, click here. »