August 18, 2003
By James C. Turner and Suzanne M. Mishkin
On the heels of widely publicized ethical abuses by
court-appointed guardians and conservators, the D.C.
Court of Appeals has begun the process of raising
mandatory bar dues by 25 percent to improve the
District's badly broken attorney discipline system.
There is no question that an additional $2 million a year
will help. But more dollars alone will not cure the
burgeoning backlog of cases, end the continual delays,
or restore lost public confidence in our ability to hold
unethical lawyers accountable. These problems are
more deep-seated and demand a more radical response
than simply throwing money at the system and hoping
for the best.
And the District is not alone. Across the country,
attorney discipline systems are failing to protect the
public from lawyers who commit malpractice. Plagued
by inadequate resources and hamstrung by secrecy
requirements, discipline systems yield a tiny trickle of
disbarments, suspensions, and reprimands. The
resulting public mistrust is a black mark against all in
our profession.
Last fall, HALT, a public interest group working to
improve access and accountability in the civil justice
system, completed a comprehensive evaluation of
discipline systems in all 50 states and the District, using
data compiled by the American Bar Association and our
own state surveys. We then graded states'
performances in six key areas: adequacy of discipline
imposed, publicity and responsiveness, openness of the
process, fairness of disciplinary procedures, public
participation, and promptness.
Our report cards confirm a nationwide pattern of
toothless sanctions, unnecessary secrecy, biased
procedures, and endless delays. Of the 51 jurisdictions,
39 (including D.C. and Maryland) earned a C-minus or
lower, 21 (including Virginia) received Ds or lower, and
Pennsylvania and North Carolina flunked outright.
In state after state, we found that most complaints are
not investigated or are dismissed on technicalities.
When discipline is imposed, it typically takes the form of
a private admonition or closed-door reprimand. In 2000,
114,000 complaints were filed against the nation's 1.2
million lawyers. Of those, only 3.5 percent led to formal
discipline, and just 1 percent resulted in disbarment.
Four states- Delaware, Nevada, New Hampshire, and
Wyoming-did not disbar a single attorney. In 10 other
states, only a single attorney was disbarred. Is it any
wonder then that a 2002 Columbia Law School survey
found that more than two-thirds of Americans do not
think lawyers are even "somewhat honest"?
With better communication technology, publicity about
lawyer discipline services has slowly improved, but
many states remain stranded in the dark ages. About
half said that they do not publicize their discipline
services in the phone directory. And such states as
Alaska, Arkansas, Delaware, Kentucky, and North
Dakota post no information about their discipline
systems on the Internet. Even states with Web sites
do not necessarily provide good information. New York,
for example, is splintered into six different decentralized
agencies. If an individual from Long Island attempts to
access information about her local disciplinary agency,
she is directed to a site about lawyers licensed in the
Hudson Valley.
Attorney discipline proceedings frequently are secret
hearings where a panel of lawyers sits as both judge
and jury. In every jurisdiction but Iowa, lawyers have a
majority voice on these panels. About one-third of
states do not provide for any lay participation. In
many, injured consumers are forced into silence by gag
rules that threaten fines or jail time for talking about a
complaint or its outcome. Even states without gag rules
often try to restrain speech, urging complainants to
keep their grievances confidential.
Justice delayed may be justice denied, but it is par for
the course in attorney discipline cases. Even the state
that earned our highest grade-Massachusetts with a B-
minus-took an average of 681 days to issue formal
charges and well over two years to impose discipline. In
Washington state, it took one victim 13 years to get an
incompetent lawyer suspended.
A SYSTEM IN CRISIS
In the nation's capital, despite the Sisyphean efforts of
Bar Counsel Joyce Peters and her staff, the attorney
discipline system is a case study in what goes wrong.
With inadequate funding and insufficient caseworkers,
complaints often languish, as reported in Legal Times
("Citing Backlog, Bar Enforcers Push for Funds," Page 1,
June 23). In 2002, for example, only 575 of 1,393
complaints filed actually reached the investigation
phase. By year's end, the D.C. Board on Professional
Responsibility had decided a scanty 82 cases.
Officials openly acknowledge the system's inexcusable
sluggishness. Joanne Doddy Fort, chair of the BPR, told
Legal Times that staffers "are just overloaded at the
moment" and that space is so limited that some lawyers
in the bar counsel's office have been working in the
hallways of the D.C. Court of Appeals.
But the problem is not just one of delays. All too often
the discipline system bends over backward to protect
attorneys rather than the public.
Consider the case (reported in The Washington Post) of
an elderly woman duped out of nearly $27,000 by her
attorney. Instead of disbarring the man, as bar counsel
recommended, the BPR imposed a temporary
suspension. As Assistant Bar Counsel Julie Porter stated
in her appellate brief, "If clear and convincing evidence
that a lawyer engaged in fraudulent and predatory acts
directed at an elderly, uneducated and vulnerable client
is not enough to place a lawyer's moral fitness to
practice law at issue, Bar Counsel is at a loss to
understand what would."
Finally, discipline bodies too often are charged with
conflicting missions. The mission statement for the D.C.
agency requires it to fulfill "a dual function: to protect
the public and the courts from unethical conduct by
members of the D.C. Bar and to protect members of the
D.C. Bar." A system serving two conflicting masters is
bound to prove ineffective.
NOWHERE ELSE TO GO
Unfortunately, clients injured by attorney misconduct
have few meaningful alternatives. In the District,
people cannot sue their lawyers under the D.C.
Consumer Protection Procedures Act because 10 years
ago the D.C. Court of Appeals held that the act
exempts lawyers. Only a handful of states allow
consumer fraud suits against lawyers, and those that
do limit them to intentional fraud.
Similarly, legal malpractice suits are usually not viable
options. Outside the major metropolitan areas, it is
almost impossible to find attorneys willing to take these
cases; lawyers simply do not want to sue other
lawyers. And unlike medical and other malpractice
claims, clients victimized by lawyers must prove that
absent their attorney's misconduct, they would have
won their underlying case-a burden of proof almost
impossible to meet.
Client security funds also offer little help. Arbitrary
limits and inadequate funding result in many funds that
only pay lip service to client protection. Consider
California, where the fund will only reimburse a token
$35 regardless of the loss. Or Illinois, where the total
annual payment for all claims is $100,000-less than
$1.35 per attorney. Or the District, which, unlike most
other jurisdictions, does not require attorneys to
contribute to the fund. Worst of all is New Mexico,
where the fund has simply gone bankrupt. Nine other
states have hidden all information about their funds,
and numerous others offer only incomplete data.
THREE DECADES OF CRITICISM
Unfortunately, these problems are anything but new. In
1970, an ABA blue-ribbon committee, led by Supreme
Court Justice Tom Clark, conducted a thorough review
of the nation's attorney discipline system and found
a "scandalous situation" that required "immediate
attention." Ultimately, the Clark Committee itemized 36
specific defects, including deliberate efforts to
discourage any publication of information about
disciplinary activities.
Twenty-two years later, a second ABA panel led by
New York University Dean Robert McKay, reported that
the public has a "growing mistrust" of lawyer discipline."
The McKay Commission concluded that the practice of
allowing bar officials to control state disciplinary
systems was perceived as a gross conflict of interest.
The commission memorably criticized attorney discipline
as "too slow, too secret, too soft and too self-
regulated."
Sadly, little has changed. To correct the entrenched
nationwide pattern of laxity, secrecy, bias, and delay,
five fundamental reforms are needed.
- More resources, including additional staff and
office space, should be provided to relieve a growing
backlog of cases. With added funds, discipline systems
could publicize their services in additional venues,
develop more informative Web sites, improve complaint
forms, and set up procedures that would allow the
public to register grievances by telephone.
- Cases should be heard by panels where nonlawyers
have a majority voice. Attorneys should serve as expert
witnesses and otherwise provide guidance, but they
should not preside as judge and jury over their
colleagues.
- The discipline system must come out into the open.
Private reprimands should be replaced with public
discipline. Hearings should be open. And complaints and
sanctions should be a matter of public record, available
to every citizen.
- Discipline policies should more closely approximate
the
rules governing the civil justice system. Gag rules
should be abolished. If the preponderance of the
evidence demonstrates that an attorney has violated
the rules of professional conduct, the attorney should
be sanctioned.
- The pace of discipline must speed up. Imposing real
deadlines-a preliminary hearing within 90 days, for
example-would be a giant step toward cutting red tape
and creating a system that actually brings justice to
victims of misconduct.
With better resources, complaints could be given the
attention they deserve. Greater nonlawyer participation
would remove the taint of the old boys' network.
Expanded openness would begin to restore public
confidence. More even-handed procedures would bring
much needed fairness. Deadlines that were enforced
would finally stop the endless delays. In sum, these
reforms could help replace an abject failure with a
system that actually protects consumers.
THE RESISTANCE
Unfortunately, many in the profession resist these
changes. Some oppose dues increases, although more
revenue is essential. Others claim that nonlawyers are
not sufficiently informed about the profession to make
disciplinary decisions, despite the fact that jurors with
no special expertise regularly decide equally
sophisticated questions. Some assert that more open
and streamlined procedures could serve to damage the
reputation of innocent attorneys--a morally bankrupt
approach that protects lawyers first and consumers
second, if at all. And still others complain that prompt
deadlines give them insufficient time to develop
defenses, despite the fact that time limits are routinely
enforced in every other administrative and judicial
proceeding imaginable.
Remarkably, some opponents of reform seem to believe
that by pushing ethics problems under the rug, they
somehow protect the broader reputation of the
profession. As David Jordan, chair of the New
Hampshire Bar Association Public Protection Fund,
admitted a few years ago, "[W]e don't tell anyone
about the fund. Half the board doesn't want the public
to know about the fund because it says that lawyers
are crooks."
But all who practice law have a shared interest in
creating a discipline system that investigates promptly,
deliberates openly, and weeds out unethical or
incompetent attorneys. By addressing long-recognized
failures, we can create a discipline system that
engenders consumer trust and respect, rather than
alienation and resentment. After three decades of
neglect, can we do less?
James C. Turner is executive director and Suzanne M.
Mishkin is associate counsel of HALT Inc., a D.C.-
based, nonprofit, nonpartisan public interest group
(www.halt.org).
This article is reprinted with permission from the
August
18, 2003 issue of Legal Times. © ALM Properties Inc.
Further duplication without permission is prohibited. All
rights reserved.
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