f/k/a . . .

The Sunday Gazette (NY Capital Region) published an op/ed piece today entitled Sustained Objection: Lawyer-disciplinary process still woefully inadequate, which was written by ethicalEsq’s Editor and was originally called “D for Discipline.”  [click the link above link to read the text; the article is available by subscription only at the Gazette site]

Thirty-three years after a blue ribbon panel of the American Bar Association declared the lawyer discipline system to be in a ”scandalous situation,” and over a decade after a follow-up ABA report in 1992 found that the system was still “too slow, too secret, too soft, and too self-regulated” there is very little improvement. I believe that much that is wrong with the attorney discipline system stems from the fact that it is controlled by lawyers, and that nonlawyers should instead be in charge (obtaining advice from staff attorneys as needed).  I’d like to know your opinion: Should lawyers or nonlawyers control the lawyer discipline system?   In addition to requesting (as always) Comments to this posting, I would be pleased to place a well-written Essay (up to 600 words) taking an opposing viewpoint in the Essays folder. 

For further reading, I suggest HALT’s Lawyer Discipline Report Card project.  In the report’s Summary , HALT states: 

Public Participation   One fundamental problem that HALT’s Report Card exposes is the lack of public participation on lawyer discipline hearing panels. In most states, lawyer discipline agencies are run by state bar associations. In these states, the bar also acts as a trade association, charged with protecting the status and economic interests of the legal profession. In the remaining states, although the disciplinary agency is technically independent, the state bar has considerable influence over who sits on the disciplinary governing board, who is hired as bar counsel, how complaints are processed and what is considered unethical conduct under the state’s rules of professional responsibility. This not only poses a strong conflict of interest, but it also discourages consumers who have already been victimized by lawyers from filing complaints with agencies that are by, for and of lawyers.

In all but one state - Iowa - lawyers make up at least two-thirds of the adjudicating committee. In Arizona, California, Georgia, Indiana, Kansas, Kentucky, Mississippi, Michigan, North Carolina, Pennsylvania, Tennessee and Washington, lawyers comprise 100 percent of lawyer discipline hearing panels.

Recommendation : Public Participation  The lawyer discipline system should eliminate its inherent bias by creating an independent regulatory system. Canada, Great Britain and Australia provide useful models for independent regulation.  Canada and Great Britain have provided oversight through ombudsmen and advisory commissions with most of their members drawn from outside the bar.   Australia has an independent office that handles complaints and Australian law professor Adrian Evans reports that the system consequently performs more effectively.

Also, check out In the Interests of Justice: Reforming the Legal Profession (2000) by Deborah Rhode, a professor of law and director of the Keck Center on Legal Ethics and the Legal Profession at Stanford Law School.  Professor Rhode found that over two-thirds of Americans lack confidence in the integrity of the lawyer discipline system. 

by David Giacalone (June 22, 2003, The Sunday Gazette [Schenectady, NY])

• 
  
  WANTED: Client Champion to reform NYS lawyer disciplinary system.  Experience fighting entrenched interests, deep-pockets and specious arguments necessary.  Prominence in legal profession and government preferred. No salary, but excellent opportunity to create legacy or advance political career. Phone: (518) 4CLIENT.

    Yep, it’s come to this, I’m advertising for a legal giant willing to take the “self” out of attorney regulation and make the lawyer disciplinary process effective.  Like all client crusaders, I’m desperate to find a winning formula for reform.

    Frankly, no strategy for change has worked, since a 1970 blue ribbon panel of the American Bar Association declared the lawyer discipline system was a “scandalous situation” requiring “the immediate attention of the public.”  Changes must come at the state level, but the ABA appeal to the legal profession’s sense of integrity and responsibility had no effect, in New York.  Indeed, in 1992, another ABA report found that the system was still “too slow, too secret, too soft, and too self-regulated” across the nation.

    The system is a scandal.  The legal profession promises to give its clients special protections.  It has instead protected itself and its members with self-serving self-regulation — guarded by its own loyal watchdogs, bred with virtually no bark or bite.

    Last year, the legal reform group HALT conducted a major study to see whether things had improved a decade after the l992 ABA Report.  HALT graded each state in six categories.  Its conclusion: “[T]he attorney discipline system is still badly broken.”  The most important category, Adequacy of Discipline Imposed, produced the states’ weakest grades. HALT’s Attorney Discipline Report Card grades all 50 states, plus D.C. 

    How did New York State do in this class of delinquents and shirkers? It ranked 44th! In New York, clients with a complaint or with the expectation of active oversight face a system where:

• most complaints are never investigated
  
• the process can last for years, with complainants warned not to go public with their complaints
  
• less than 3% of actual investigations result in public discipline, and far fewer in disbarment or suspension
  
• hearing panels are dominated by lawyers — with 20% nonlawyers at most
  
• hearings are not opened to the public NOR even to the person complaining, and results are poorly advertised and difficult to discover

    Even embarrassment can’t get reform in New York.  Despite the (charitable) grade of “D” from HALT, and the resulting publicity, there has been no movement for change among the State’s legal establishment.   Like parents trying to motivate an unmotivated child, the only solution is tough love: Remove privileges. Monitor more. Set deadlines. Impose consequences.

    More specifically, both HALT and the Consumer Federation of America have suggested commonsense requirements for an effective lawyer disciplinary system:

    Take Complaints Seriously:  Promptly investigate all (nonfrivolous) complaints.

    Stop Slapping Wrists:  Replace private, lenient reprimands with meaningful public discipline.

    End the Secrets:  Disclose the number and basis of grievances filed against a lawyer, the resolution of closed complaints and a summary of all discipline imposed. Open hearings to the public.  Annouce results widely.   Remove all “gag rules” against public discussion of complaints filed.

    Put Nonlawyers in Charge:  Non-lawyers should be given at least a majority voice on lawyer discipline hearing panels, and a major presence on the Committees that run the system.

    Be Easy to Find and Use:    The disciplinary system should be clearly explained in brochures and on websites, with simple, multi-lingual complaint forms.

    Does an effective disciplinary system really matter?  It matters to the individual client with a complaint and would surely be a deterrent for most lawyers.  Now, only felons seem to get serious attention within the system. Infractions that really matter to clients, such as inadequate expertise or preparation; accepting excessive amounts of work; charging excessive fees; or not returning phone calls, are universally ignored by the discipline system.  A few well-publicized disciplinary actions involving such conduct could work wonders, and would at least give clients some leverage.

    If our hypothetical Champion needs a particularly egregious example of laxity in New York State, just look at the case of lawyer Andrew Capoccia, who started a massive publicity campaign for his debt reduction “services” in 1997.  His ads clearly promised too much and suggested unorthodox and excessive fees.  But the Discipline Committees never acted on their own, and then refused to investigate complaints that began when Capoccia had only a few hundred clients.  Eventually, well over 10,000 clients were cheated and irreparably injured. [update:blame bar counsel for the Capoccia Scandal, March 8, 2005]

    Capoccia was disbarred for filing frivolous lawsuits and ignoring court orders, but he and his partners were never disciplined for harming their clients.  It’s hard to imagine that a system with real watchdogs, geared to client needs and accountable to the public, would have ever permitted the Wolf Rd. lawyer to fleece so many consumers. By not acting, the disciplinary establishment told clients their pain didn’t matter and told lawyers the debt reduction scam was permissible (absent actual larceny).

    A Client Champion could teach the legal profession some new lessons.  If you’ve got the clout and the courage, please step forward.  [Attorney General] Eliot Spitzer and [Chief Judge] Judith Kaye are urged to apply.  [Retired high court judge] Howard Levine, too.

Published June 22, 2003, with copyright reserved, by The Sunday Gazette (Schenectady, NY)

- for more on this topic, see our Lawyer Discipline System resources  -

by David Giacalone (June 22, 2003, The Sunday Gazette [Schenectady, NY])

• WANTED: Client Champion to reform NYS lawyer disciplinary system. Experience fighting entrenched interests, deep-pockets and specious arguments necessary. Prominence in legal profession and government preferred. No salary, but excellent opportunity to create legacy or advance political career. Phone: (518) 4CLIENT.

Yep, it’s come to this, I’m advertising for a legal giant willing to take the “self” out of attorney regulation and make the lawyer disciplinary process effective. Like all client crusaders, I’m desperate to find a winning formula for reform.

Frankly, no strategy for change has worked, since a 1970 blue ribbon panel of the American Bar Association declared the lawyer discipline system was a “scandalous situation” requiring “the immediate attention of the public.” Changes must come at the state level, but the ABA appeal to the legal profession’s sense of integrity and responsibility had no effect, in New York. Indeed, in 1992, another ABA report found that the system was still “too slow, too secret, too soft, and too self-regulated” across the nation.

The system is a scandal. The legal profession promises to give its clients special protections. It has instead protected itself and its members with self-serving self-regulation — guarded by its own loyal watchdogs, bred with virtually no bark or bite.

Last year, the legal reform group HALT conducted a major study to see whether things had improved a decade after the l992 ABA Report. HALT graded each state in six categories. Its conclusion: “[T]he attorney discipline system is still badly broken.” The most important category, Adequacy of Discipline Imposed, produced the states’ weakest grades. HALT’s Attorney Discipline Report Card grades all 50 states, plus D.C.

How did New York State do in this class of delinquents and shirkers? It ranked 44th! In New York, clients with a complaint or with the expectation of active oversight face a system where:

• most complaints are never investigated
• the process can last for years, with complainants warned not to go public with their complaints
• less than 3% of actual investigations result in public discipline, and far fewer in disbarment or suspension
• hearing panels are dominated by lawyers — with 20% nonlawyers at most
• hearings are not opened to the public NOR even to the person complaining, and results are poorly advertised and difficult to discover

Even embarrassment can’t get reform in New York. Despite the (charitable) grade of “D” from HALT, and the resulting publicity, there has been no movement for change among the State’s legal establishment. Like parents trying to motivate an unmotivated child, the only solution is tough love: Remove privileges. Monitor more. Set deadlines. Impose consequences.

More specifically, both HALT and the Consumer Federation of America have suggested commonsense requirements for an effective lawyer disciplinary system:

Take Complaints Seriously: Promptly investigate all (nonfrivolous) complaints.

Stop Slapping Wrists: Replace private, lenient reprimands with meaningful public discipline.

End the Secrets: Disclose the number and basis of grievances filed against a lawyer, the resolution of closed complaints and a summary of all discipline imposed. Open hearings to the public. Annouce results widely. Remove all “gag rules” against public discussion of complaints filed.

Put Nonlawyers in Charge: Non-lawyers should be given at least a majority voice on lawyer discipline hearing panels, and a major presence on the Committees that run the system.

Be Easy to Find and Use: The disciplinary system should be clearly explained in brochures and on websites, with simple, multi-lingual complaint forms.

Does an effective disciplinary system really matter? It matters to the individual client with a complaint and would surely be a deterrent for most lawyers. Now, only felons seem to get serious attention within the system. Infractions that really matter to clients, such as inadequate expertise or preparation; accepting excessive amounts of work; charging excessive fees; or not returning phone calls, are universally ignored by the discipline system. A few well-publicized disciplinary actions involving such conduct could work wonders, and would at least give clients some leverage.

If our hypothetical Champion needs a particularly egregious example of laxity in New York State, just look at the case of lawyer Andrew Capoccia, who started a massive publicity campaign for his debt reduction “services” in 1997. His ads clearly promised too much and suggested unorthodox and excessive fees. But the Discipline Committees never acted on their own, and then refused to investigate complaints that began when Capoccia had only a few hundred clients. Eventually, well over 10,000 clients were cheated and irreparably injured. [update: blame bar counsel for the Capoccia Scandal, March 8, 2005]

Capoccia was disbarred for filing frivolous lawsuits and ignoring court orders, but he and his partners were never disciplined for harming their clients. It’s hard to imagine that a system with real watchdogs, geared to client needs and accountable to the public, would have ever permitted the Wolf Rd. lawyer to fleece so many consumers. By not acting, the disciplinary establishment told clients their pain didn’t matter and told lawyers the debt reduction scam was permissible (absent actual larceny).

A Client Champion could teach the legal profession some new lessons. If you’ve got the clout and the courage, please step forward. [Attorney General] Eliot Spitzer and [Chief Judge] Judith Kaye are urged to apply. [Retired high court judge] Howard Levine, too.

Published June 22, 2003, with copyright reserved, by The Sunday Gazette (Schenectady, NY)

- for more on this topic, see our Lawyer Discipline System resources -