HALT Proposes Amendments to Massachusetts Rules of Professional Conduct

• For HALT's comments, click here.

• HALT urged the Committee on Regulation, Admissions and Discipline of the California State Bar to post pending disciplinary actions against attorneys on the online attorney directory of the State Bar.  California now allows legal consumers to find out about pending disciplinary actions against lawyers they might hire, but currently the information can only be accessed by paying $.50 per page for a mailed copy, or by going to the State Bar in person.

  California is already ahead of most states by allowing legal consumers to access information about pending disciplinary actions, whereas many other states conduct the entire process confidentially.  California lawyers are protected against frivolous claims by an initial review before the State Bar issues a formal complaint. After the formal complaint is filed, all proceedings are public.

  States such as Arkansas, Colorado, Louisiana, Missouri, Montana, Kentucky and Hawaii keep all records confidential unless an attorney is publicly reprimanded. In these states legal consumers are left completely in the dark about whether the lawyer they might choose has potentially egregious charges against him or her. California has already taken the important step of allowing public access to attorney discipline information, but the process to access the information is currently unduly burdensome and costly.

  The most efficient and accessible platform for delivering information is increasingly the internet. HALT's comments demonstrate that in order to meet the requirements of California statute, remain consistent with judicial precedent, and fulfill the express public policy intentions of the California legislature, the proposal should be adopted.

  For HALT's comments, click here.

• A recent HALT survey found that while 44 bar associations endorse a provider of attorney malpractice insurance, seven are still not endorsing an insurance provider or providing members with insurance programs.

  Most bar-sponsored and bar-endorsed insurance programs offer less expensive rates and therefore encourage lawyers to obtain coverage.

  "We hope that these seven lagging states will allocate resources toward sponsoring or endorsing affordable insurance providers, so we can encourage more attorneys to carry malpractice insurance," stated Program Assistant Rachel Decker. "Consumers deserve the peace of mind of knowing that if a lawyer commits misconduct, they can recover compensation for that harm."

  HALT continues to advocate for increased enrollment in attorney malpractice insurance programs, as it provides consumers with critical financial protection. At the same time, HALT also pushes for laws requiring attorneys to disclose to clients whether or not they carry insurance, so that clients can make better informed decisions when hiring a lawyer. Currently only five states require attorneys to disclose their malpractice insurance coverage to clients.

  States like Oregon, Ohio and New Hampshire continue to be the models for reform, as the few state bar owned insurance agencies that provide attorneys with a reliable and affordable source for insurance. They are also the only three states that require mandatory disclosure of insurance (in fact, Oregon requires attorneys to carry it) and provide either bar or state run insurance.

  Click here for information on each state's bar funded and endorsed legal malpractice insurance program.

• In October, 2006, HALT filed comments with the State Bar of California in response to its question for public input on its proposed new Rules of Professional Conduct. The bar's proposals come four years after the American Bar Association issued its new Model Rules of Professional Conduct. California is one of the last states to respond to the ABA's sweeping changes, and unfortunately the state does not go far enough to address some of the critical reforms adopted by the ABA and other states across the country.

  In its written comments, HALT noted that California's proposed rule regarding lawyer competence does not permit discipline without a finding that the attorney's incompetence was intentional, reckless or repeated. By contrast, the ABA holds lawyers to a higher standard, penalizing them in any instance they fail to render competent legal services.

  "Poorly skilled and insufficiently trained lawyers shouldn't be able to hide behind California's lax standards," stated HALT Associate Counsel Suzanne M. Blonder. "The harm to the client is the same regardless of whether the lawyer's failure to satisfy minimal standards of competence was intentional."

  HALT's comments also challenged California proposed rule regarding reporting professional misconduct. If the bar adopts this proposal, lawyers in the state will not be required to report another lawyer's violation of the rules or the State Bar Act.

  HALT urged the bar to adopt the ABA's position of mandatory reporting. "Often, lawyers are in the best-and sometimes only-position to know when their colleagues are acting unethically," stated Blonder. "The concept of self-regulation of the legal profession loses all integrity when lawyers are not required to be vigilant in disclosing others' ethical violations."

  Currently, the Supreme Court of California is reviewing HALT's input. We expect formal rule changes from the Court in 2007.

  For HALT's comments about the bar's proposed lawyer ethics rules, click here.

• In September, HALT submitted written comments to the California State Bar regarding proposed rules for the disclosure of malpractice insurance status and new model procedures for attorney-client fee arbitration. HALT urged the Bar to protect legal consumers by requiring lawyers to disclose insurance status to the state and clarifying the rights of clients and the obligations of attorneys participating in arbitration. The public comment period for these proposals has now expired, and the Bar will decide whether to implement HALT's recommendations in the coming months.

  Direct disclosure of malpractice insurance status to clients not only keeps clients informed but also encourages lawyers to obtain insurance coverage. HALT commended California's proposal requiring direct disclosure to clients but also encouraged the Bar to make this information available to prospective clients online or via telephone. HALT also urged the Bar to adopt a policy of mandatory malpractice insurance coverage for all lawyers, which would offer the most complete protection to clients victimized by their attorneys.

  Fee arbitration offers attorneys and clients a quick, inexpensive and impartial method for resolving fee disputes. HALT recommended that the California Bar clarify the rights of clients in the proposed model rules and specify a mechanism for making information about fee arbitration available to the public. HALT also urged the Bar to make fee arbitration binding for attorneys. For arbitration to be a meaningful alternative to litigating fee disputes, attorneys should not be able to remove the case to the courts, where they have a home field advantage.

  For HALT's comments about the fee arbitration changes, click here.

  For HALT's comments concerning legal malpractice insurance disclosure, click here.

• At the invitation of the American Insurance Association, HALT Associate Counsel Suzanne M. Blonder presented a seminar on the lawyer discipline system at the group’s annual meeting on June 22, 2006. Blonder’s remarks focused on the process of filing a complaint, the rights of complainants in most states and alternatives to the attorney discipline system.

  “While the insurance industry may face unique problems with lawyers, their experience in filing a complaint with the state’s disciplinary agency is no different than that of all other individuals—and unfortunately that’s an experience typically characterized by consumer frustration, system-wide delays and unnecessary secrecy,” stated Blonder.

  To read about Blonder’s tips to the group for overcoming the failures of the attorney discipline system, click here.

• HALT submitted comments to the Utah Bar Commission supporting its proposal to amend Rule 1.4 of its Rules of Professional Conduct to require that attorneys who do not carry at least $100,000 of liability insurance disclose that fact to their clients. HALT further encouraged the Commission to require attorneys to carry malpractice insurance.

  Following the American Bar Association's recent guidance, several states have begun considering a requirement that attorneys disclose their insurance status, either to the state court or directly to clients. HALT submitted comments to Georgia's and Minnesota's bars on the same issue, and we continue to track developments in other states.

  An attorney provides an important protection to legal consumers when she carries malpractice insurance, because if she behaves negligently, her clients can collect damages. Unfortunately, only one state, Oregon, requires that attorneys carry liability insurance. Since lawyers can choose to "go bare," it is up to legal consumers to educate themselves about prospective attorneys' insurance status. Disclosure rules help to make sure that consumers have access to that important information.

  In its comments to the Utah Bar, HALT urged the Bar to go beyond its current proposal and require that attorneys carry adequate malpractice insurance, guaranteeing a measure of protection to legal consumers. Excepting that, HALT supported the Bar's direct disclosure recommendation.

  Read HALT's comments to the Utah State bar.

• In state after state, the latest round of attorney ethics rules continues to disregard the fundamental needs of legal consumers. In response to the ABA's Ethics 2000 Report released four years ago, states are finally issuing revisions to their rules of professional conduct. But so far, there is little for legal consumers to applaud. The changes fail to focus on issues that affect the average American. Instead, the new rules address subjects such as attorney obligations to opposing counsel, sexual conduct with clients and communication with third-party witnesses--hardly issues that speak to the basic concerns of legal consumers. HALT is filing comments and writing opinion pieces, advocating more meaningful protections for clients and clearer guidance for lawyers.

• In June, 2004, the Florida Bar released a survey indicating striking disparities between the perceptions of the attorney discipline system held by consumers and those held by attorneys. Consumers expressed fervent dissatisfaction with a system they believe to be lax, unresponsive and biased; attorneys who responded to the bar’s survey were naturally quite pleased with the system, which more often than not lets lawyers get away with unscrupulous, incompetent and negligent conduct. HALT called on local bar officials to stop bogging themselves down in an endless parade of bureaucracy and start taking action to implement meaningful reforms for Florida legal consumers.

  Read HALT’s Comments.
  Review the Florida Bar’s survey results.

• In April, 2004, HALT asked the ABA to revise its Model Rules of Professional Conduct to require lawyers to inform clients whether they carry professional liability insurance. Currently, lawyers in only four states—Alaska, New Hampshire, Ohio and South Dakota—require lawyers to tell clients whether they are insured. HALT argued that clients have a right to know this critical information when making hiring decisions and when deciding whether to go forward with a lawsuit against a negligent attorney. The ABA has not yet issued a decision. In addition, HALT has worked with officials in Illinois, Iowa, New Jersey and Pennsylvania to implement this important reform. Illinois has already decided to follow HALT’s guidance and will soon make insurance information on every Illinois lawyer available on its Web site. Most recently, HALT urged the Georgia Bar to adopt a proposal that would require lawyers to tell clients whether they carried malpractice insurance. In addition, this proposal would also require lawyers to divulge a lack of insurance in media advertisements.

  Read HALT’s Comments to the ABA.
  Read about Illinois’ Rule Change.
  Read About Georgia’s Proposal.

• HALT has long advocated that “gag rules”—confidentiality provisions that prohibit consumers from telling anyone that they have filed a complaint against an attorney—are unconstitutional, violating citizens’ right to free speech. Only a few states still have gag rules on the books, but fortunately, the modern trend appears to favor openness in the attorney discipline system. In February, 2004, the Tennessee Supreme Court struck down its gag rule, holding that the justifications raised by the bar were not sufficiently compelling to warrant such a harsh requirement and infringement on free speech. In May, 2004, HALT urged the New Jersey Supreme Court to abolish its threatening gag rule, which has been holding consumers in contempt for telling even family members or friends about a complaint.

  Read HALT’s Comments to the New Jersey Supreme Court.
  Read Tennessee Supreme Court Decision.

• In November, 2003, HALT released this comprehensive guide that answers questions about how to communicate with a lawyer if you encounter a problem, how to go about firing your lawyer, when and how to pursue fee arbitration, a client compensation claim, a legal malpractice lawsuit and an attorney discipline complaint – and much more. Download this free brochure.

Lawyer Discipline Report Card Updates:

• Report Card in the News: During the last quarter, the Report Card and its findings have been featured in front-page investigative series conducted by both the Washington Post and Legal Times. BottomLine magazine, the Pittsburgh Tribune and the ABA Journal have also recently run articles on the Report Card. The Washington Post and ABA Journal have published HALT's letters to the editor. In addition, the Legal Times and Texas Lawyer newspapers have published our extensive commentaries on the failures of disciplinary systems in the District of Columbia and Texas.

• Report Card Shaking Up the ABA: The Report Card was the central topic of discussion at a seminar on "Disciplinary Agencies' Best Practices" at the American Bar Association's recent National Conference on Professional Responsibility held in Chicago. Report card findings generated an energetic debate among disciplinary officials about the goals of disciplinary bodies and the best methods for implementation. A coursebook given to conference participants featured information about HALT's Lawyer Accountability Project and specifics on the Report Card.

• Report Card Leading to Reform: HALT's guidance to Pennsylvania's Disciplinary Board contributed to the formation of the state's first attorney discipline website. Per the request of Pennsylvania disciplinary counsel, program staff offered comments evaluating the site's consumer-friendliness.

HALT Advises California Commission to Resist Prematurely Slamming the Courthouse Door on Victims of Incompetent Estate Planning Attorneys

• HALT voiced vigorous opposition to efforts by California attorneys to restrict the time period during which clients and their beneficiaries can file legal malpractice lawsuits against estate planning lawyers. Responding to a request from the California Law Revision Commission, which reviews the state’s law and recommends reform legislation, HALT sharply criticized the proposal brought by estate planning attorneys to radically change California law. HALT presented the commission with compelling information that revealed the recklessness of the estate planners’ self-interested position that a special exception to the statute of limitations on legal malpractice should be carved out for estate planning malpractice. Read HALT’s Comments.

HALT Successfully Urges D.C. Court of Appeals to Clean Up Attorney Discipline Mess

• On the heels of widely publicized ethical abuses by court-appointed guardians and a grave resources crisis that had threatened to mount in the nation's capital, the D.C. Court of Appeals finally decided to address a rapidly building backlog of attorney discipline cases and an office paralyzed by an acute lack of staff and space. The court followed HALT’s recommendation and on October 20, 2003, decided to increase dues for District lawyers by 25 percent to generate revenue for urgently needed reforms in D.C.’s attorney discipline system. Read HALT’s Comments.

HALT Urges Downstate New York to Revamp Region’s Attorney Discipline System

• In November 2004, HALT advised the Second Appellate Department of New York, which controls lawyer discipline for 10 downstate New York counties, to make critical changes to its system of attorney oversight. Responding a report from a committee chaired by Appellate Division Justice Gabriel Krausman, HALT strongly supported several recommendations that will improve the region’s lawyer discipline system, but urged the department to throw out proposals that would serve to shield unethical attorneys. HALT also offered the department additional reforms that would eliminate the secrecy ingrained in the current system. Read HALT’s Comments.