f/k/a archives . . . real opinions & real haiku

June 16, 2003

Sorry, It’s Not Just a Few Bad Apples

Filed under: pre-06-2006 — David Giacalone @ 3:58 pm

Legal ethics cannot in practice merely mean “don’t commit larceny.” Fiduciary obligations are not fulfilled simply by “avoiding felonies.”   I say this in response to the Washington Post investigation of D.C.’s probate victims.

The Post report has raised appropriate cries of shock and anger.  But, I’m afraid too many people in the legal profession are already denying that such practices could happen in their home towns or be perpetrated by their colleagues.

Only a small fraction of attorneys actually steal from their clients. But, I think the real scandal in Probategate is not embezzlement, it’s widespread neglect of the client’s needs and interests by their appointed counsel.

We need to put the diligence back into the J.D. And, we need to recognize that the problem is not with only a tiny part of the profession, but includes a significant portion of lawyers who serve the average Joe and Jane Client.

For example, in 1997, I wrote an op/ed piece about the lack of lawyer competence and diligence in my community (made me real popular).  Jim Moore, who was then the President of the N.Y.State Bar Association responded with typical public relations boilerplate (i.e., “there are no finer and more competent, blah blah…” ) But Jim’s letter to the editor resulted in a productive exchange of letters between us.

Moore could not believe that the problems I saw everyday in Family Court — lawyers who consistently had no contact with clients between court dates; others who had to be introduced to their clients at court; many who would not return calls if a client was behind on a bill, etc., etc.) — were representative of lawyers appearing in such cases across the State.

Lucky for me (but not for law clients) I was able to point to a far better source than my personal anecdotes. In February, 1997, American Bar Association President N. Lee Cooper had issued his Challenge to State and Local Bar Organizations on “Improving Legal Representation in Cases Involving Children, Youth and Families.”  Cooper’s working group found that:

“In child abuse and neglect cases, the legal representation of parents, children, and child protection agencies is often seriously deficient. It is not unusual for attorneys for parties to be absent from hearings that can determine parental rights to visitation, custody, and services concerning their children. . . .

“In all types of cases, it is common for attorneys practicing in juvenile or family proceedings not to have met with or discussed the case with their clients until just a few minutes before the hearing.  Such inadequate representation frequently occurs because caseloads are so high that attorneys have to be constantly in court.”

To alleviate these problems,” ABA President Cooper called on all state and local bar leaders to sign a pledge to work to improve representation in family courts. The list of suggested actions for bar groups included the following, which speak volumes about the need to make reality correspond to the profession’s professed ethical obligations and self-regulatory duties:

  • They can support, help prepare, and enforce standards for attorney performance.
  • They can issue ethics opinions or guidelines that make it clear that failure to prepare for court and investigate cases is not ethical, and that attorney caseloads must not force grossly unethical practice.

The first promise made by those taking Cooper’s Challenge was that:

We will work to establish clear standards for attorneys in the representation of children, parents, and child protection agencies in child abuse and neglect cases (and related termination of parental rights and adoption cases), including clarifying basic ethical obligations of diligent representation by attorneys in these cases, such as obligations to meet with clients well in advance of each substantive hearing, to investigate disputed facts, and to be present in court.

You don’t have to be as cynical as your Editor to marvel that any member in good standing of any state’s bar needs such clarifications.   Lawyers know these duties, they choose to ignore them.  Until bar counsel and bar organizations treat everyday diligence as an important part of law practice and legal ethics, nothing much is likely to change.

Let me leave you with one question: When was the last time your law firm turned away a client because it was too busy to give adequate service within a reasonable time span?


Many thanks to the Stark County Law Library Blog for quoting this posting at length on June 17, 2003.

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