f/k/a . . . the archives

June 22, 2003

Sustained Objection: Lawyer discipline still inadequate

Filed under: — David Giacalone @ 11:12 am

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 –

6 Comments

  1. My divorce attorney was contacted by my spouse regarding filing his complaint for divorce – he said he spoke to her, she admitted he had an appointment, but stated she recognized the name from potential action from me 3 years earlier and so didn’t speak to him; the first Magistrate assigned was my husband’s divorce lawyer in a previous divorce; despite evidence and confessions of his financial misconduct and abuse, the Magistrate’s decision drew unfounded conclusions; my lawyer worked against me, filing ridiculous interrogatories and unreasonable demands for a deposition of my husband, supposedly to prove his hidden assets. She prejudiced the court against me; she never did do the deposition she stated was needed to prove his hidden income. I gave her all the proof via bank deposit records/ P&L’s/ billing statements/ and income tax forms. She didn’t use the documentary evidence, didn’t subpeona official bank records, and basically tried to get me to pay half of expenses for husband for credit card records and an appraisal done by his lawyer’s choice of appraiser (to whom it was suggested that they thought the online tax appraisal was closer to the true value than an appraisal done 4 years previous.)

    Then, twice, she filed for withdrawal (excuses of non payment per contract, my inavailability, my criticism of her attitude and performance. The Magistrate didn’t move on the second until two days before my deadline to filing objections. My original 3000 fee was long gone (only had that because my mother died six weeks prior to his filing). She knew this was the limit of my available funds. I’ve had to use charge cards (now over 10,000 in debt) and borrow $6,000 from my daughter to cover cash only expenses and minimum credit card payments. She drained me of every cent, and now I’m facing an objections hearing without counsel. She never got me temporary support, delayed hearing dates for her own convenience and billed me for them, would not negoitiate on fees, explain fees, correct billing errors, or make arrangements – but they accepted partial payments until deadlines approached, then demanded payment in full; plus, her contract had added contingency clause, giving her an open hand to charge whatever she wished after judgement. The Magistrate granted her motion to withdraw two days prior to my deadline for filing objections to his decidions. The local Bar Association never returned any of my calls (she’s a member.) Legal aid won’t take up a divorce case in progress. The lying, perjuring party wins – the stupidly honest wife loses. My list of grievances goes on, and I will file them with the state board – but, I’ve little faith in the system. I truly hope that the reforms you speak of herein come to pass. It may all be too late for me, but hopefully it will mean a more fair system of “justice” for others in the future.

    Comment by Mary D. Wojkowski — July 2, 2006 @ 7:28 pm

  2. Replying to my own post – I have established a domain to vent my anger, inform Ohio folks facing divorce, and let the world know of the lies and misdeeds and incompetence of the lawyers, magistrate, judge, sheriff’s deputies, and my husband. The “systems” fail those they are meant to protect, and justice is not served when criminal behavior is ignored or not actionable, and pennyless old housewives are abandoned. (Do I sound bitter? Well, yes, I AM !)

    The domain has just begun, but will continue to grow with details and hard evidence . . . . .

    Comment by Mary D. Wojkowski — February 12, 2007 @ 12:43 pm

  3. My 88 year old Mother hired attorney for a stolen idenity & charges that call for a summary hearing. She ask for $5,000. but accepted $2500. Several days later, the summary hearing was dropped due to the debtor received information that was submitted. The attorney received 7 phone calls from my Mom and myself and never returned any. She kept the $2500. and charged us a $175.00 phone charge that we called to tell her that the summary hearing charges were dropped. For 6 months she continued to charge us & we never talked to her. Isn’t that excessive and she continued to work on the idenity theft after we told her secretary that she could keep the monies for the letter she wrote and send us the remaining money. She kept it all and stated my Mother owed her $300 more and she would write it off. What is this all about?

    Editor’s Note: Sherrell, I’m sorry that your Mother is having these problems with her lawyer. You need to seek help from bar agencies or organizations in your State that have been established to help with fee disputes and attorney misconduct. You can get helpful information from the legal reform group HALT, by clicking here. One useful HALT document is “I Have a Problem with My Lawyer, What Can I Do Now?“. HALT also has a HelpLine, which you can reach by calling 1-888-FOR-HALT.

    The county or state bar association where you live will probably have a fee dispute committee. I suggest contacting them, if you have not done so. If the attorney will not agree to cooperate with the fee committee, you can file a grievance with the state disciplinary authorities. The American Bar Association has compiled links to the Lawyer Discipline Committees in each state.

    Comment by Sherrell — June 18, 2007 @ 9:44 pm

  4. Hi. This is a subject that has interested me for several years. My suggestion is to promote a state proposition to take control of the Bar association from the attornies ie require that 2/3 of the members of the governing board be non sttornies 1/3 could be elected and i/3 appointed.

    A number of states ( Arizona is one of them ) allow for direct vote propositions on issues which the legislature for whatever reason doesn’t wish to handle. It requires $ to get such a proposion on the ballot but I blieve it can be done.

    My guess if handled properly such a proposition would be positively received by the public ( not by most attornies ) Once passed the board of governors of the bar could spearhead needed reformmwith full public disclosure.

    I would suggest picking the first state wisely ( California would be too expensive ). My guess if such a propsition were passed the idea would catch fire and be introduced in other states as well.

    Comment by William Steinmetz — June 6, 2008 @ 6:14 pm

  5. Thank you, Mr. Steinmetz, for taking the time to share your suggestions here at f/k/a. You can find more information about discipline systems in each state at the HALT website.

    Along with its 2006 Attorney Discipline Report Card, HALT noted that:

    “Public Participation — On most hearing panels just one out of every three members is a non-lawyer. Six states – California, Hawaii, Kansas, Mississippi, South Carolina and Tennessee – do not allow a single layperson to hear evidence in disciplinary proceedings. Idaho is the only jurisdiction in the country where non-lawyers comprise the majority on hearing committees.”

    See, in general, the HALT Lawyer Accountability Project.

    Comment by David Giacalone — June 6, 2008 @ 6:41 pm

  6. This divorce has dragged on for four years. The transcript of his testimony is as thick as the yellow pages. Two courts called him inconsistent, and fraudulent, yet my attorney stood by doing nothing as my house was put up for foreclosure, my child support was mistakenly removed for seven months and I fell into poverty. Well, almost nothing, now, he wants to have himself removed as my counsel for non payment before equitable distribution and the domestic relation matter is resolved. He actually lied to me and told me that I could not ask for legal fees in the support matter.

    Comment by Ann Marie — July 2, 2008 @ 5:11 am

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