Attorney Discipline: System Must Weed Out Unethical Lawyers Who Damage Profession's Reputation
Los Angeles Daily Journal
December 16, 2002
By James C. Turner and Suzanne M. Mishkin
This fall, HALT - An Organization of Americans for Legal Reform released its 2002 Lawyer Discipline Report Card, the first comprehensive evaluation of the nation's attorney discipline system in ten years. The Report Card points to persistent problems that have gone largely unremedied for over a quarter of a century.
In 1970, a blue ribbon panel led by U.S. Supreme Court Justice Tom Clark conducted a groundbreaking review of the attorney discipline system, and found a "scandalous situation" that required "the immediate attention of the profession."
The Clark Committee itemized 36 defects in the disciplinary system, in particular, criticizing the practices of most disciplinary agencies, which "deliberately discourage any publication of information concerning their activities, believing that the public image of the profession is damaged by a disclosure that attorney misconduct exists."
In addition, this review found that a panel of lawyers, rather than judges or lay persons, controlled the disciplinary system, creating an institutional bias that grossly undermines the effectiveness of the entire disciplinary system.
Twenty-two years later, an American Bar Association commission, chaired by Dean Robert McKay of the New York University Law School, found that the public has a "growing mistrust of secret, self-regulated lawyer discipline."
Like the Clark Committee before it, the McKay Commission concluded that the practice of allowing bar officials to control state disciplinary systems creates the appearance of a gross conflict of interest, "regardless of the actual fairness and impartiality of the system."
Summing up the situation in 1992, the Commission criticized the entire country's lawyer discipline system as "too slow, too secret, too soft and too self-regulated."
While there has been some modest progress since these scathing indictments, sadly it has not been nearly enough to fix a badly broken system.
Just last month, Stanford University Legal Ethics Professor Deborah L. Rhode stated, "Bar disciplinary procedures are anything but user-friendly to the consumer, and most are more responsive to the profession's interests than the public's."
Similarly, judges, legal scholars, practicing attorneys and bar officials, who convened the National Conference on Professionalism at the University of South Carolina School of Law, broadly agreed that the current system of lawyer discipline has lost the public's confidence, and urged the profession to lead the way in demanding meaningful reforms.
HALT's Report Card is our effort to bring the deficiencies of the attorney discipline system to the attention of the profession and the public. The Report Card assesses the performance of disciplinary systems in all 50 states and the District of Columbia on six key factors: (1) adequacy of discipline imposed; (2) publicity and responsiveness; (3) openness of the process; (4) fairness of disciplinary procedures; (5) public participation; and (6) promptness.
The results expose an appalling pattern of toothless sanctions, unnecessary secrecy, biased procedures and endless delays.
More than 114,000 complaints were filed against lawyers in 2000, the most recent year for which the American Bar Association provides data. In that same year, the rate of formal discipline was less than 3.5 percent, and the rate of disbarment was less than one percent.
In California, 93 percent of investigated cases led to absolutely no disciplinary action. And this is not surprising given that California bar rules provide that a lawyer will only be disciplined if misconduct is proven by "clear and convincing evidence," a far more demanding standard of proof than the "preponderance of the evidence" test that applies in other civil proceedings.
In state after state, we found that most complaints are not even investigated or are dismissed on technicalities, while only a handful lead to more than a slap on the wrist in the form of a private admonition or a closed-door reprimand. With this tiny trickle of discipline, is it any wonder that a recent Columbia Law School survey found less than one-third of Americans think lawyers are even "somewhat" honest?
In most states, attorney discipline proceedings are secret, non-public hearings where a panel of lawyers sits as both judge and jury. In many states, even the person who filed the complaint does not have a right to attend.
In California, there is not even token layperson representation in disciplinary decisions - instead, only lawyers decide if and when to impose sanctions upon their colleagues.
In every jurisdiction except Oregon and Arizona, disciplinary bodies refuse to release an attorney's full disciplinary history. Officials in California will only inform consumers of whether an attorney has been publicly disciplined; records of all complaints, formal charges and informal discipline are kept under seal.
Consumers in many jurisdictions are forced into silence by gag rules that threaten fines or jail for talking about the complaint or its outcome. Even those without gag rules frequently try to restrain speech, asking 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) failed to act promptly on complaints - taking an average of 681 days to issue formal charges and well over two years to impose discipline.
In Washington State, it took one victim thirteen years to get an incompetent lawyer suspended. Many states, like California, do not even keep a record of how promptly they respond to grievances.
These are national problems; of the fifty-one jurisdictions we evaluated, thirty-nine earned a C- or lower; and twenty-one of these received Ds or lower (Pennsylvania and North Carolina flunked outright). California earned a mediocre C.
Part of the problem is that lawyer discipline bodies are asked to perform conflicting missions.
For example, the mission statement for the District of Columbia disciplinary body 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" (emphasis supplied).
A lawyer discipline system serving two conflicting masters is bound to prove ineffective.
To correct the nationwide pattern of laxity, secrecy, bias and delay that characterize this broken system, we believe four fundamental reforms are needed.
* Lawyer discipline cases should be heard by publicly controlled disciplinary panels where non-lawyers have at least a majority voice. Independent medical boards in many states offer a superior model for ensuring accountability. These medical boards, which are appointed by governors and state legislatures, rely on physicians to help them understand technical issues, but the doctors stay out of the decision-making process. Lawyers should, too.
* The discipline system must come out into the open. Private reprimands should be replaced with meaningful public discipline. Hearings should be open to the public. And complaints against lawyers and sanctions should be a matter of public record, available to every citizen.
* Disciplinary 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 glacial pace of attorney discipline must come to an end. Imposing real deadlines - requiring a preliminary disciplinary hearing within ninety days, for example - would be a giant step toward jettisoning bureaucratic red tape and creating a system that actually brings justice to victims of misconduct.
By adopting these simple reforms, we can replace a system that is an abject failure with one that actually protects consumers and begins to restore public confidence in the legal profession.
After thirty years of ignored calls for reform, responsible lawyers who have a real commitment to professional responsibility need to mobilize and demand action to fix the attorney discipline mess.
All who practice law have a shared interest in creating a system that investigates promptly, deliberates openly, and weeds-out unethical or incompetent attorneys who damage the profession's reputation.
By addressing long-recognized failures in the current disciplinary system, we have an opportunity to create a structure that engenders consumer trust and respect, rather than alienation and resentment. After three decades of marginal reform, can we do less?
* James C. Turner is Executive Director and Suzanne M. Mishkin is Associate Counsel of HALT, Inc. - An Organization of Americans for Legal Reform.