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

September 9, 2003

They’re Indisposed to Disclose Lawyer Discipline

Filed under: pre-06-2006 — David Giacalone @ 8:29 pm

In many states, the bar is still quaintly bashful about letting the public know which lawyers have been disciplined for violating ethics rules.   The (laughable) fear of hurting the profession’s image and the (self-serving) desire to spare themselves and their colleagues embarrassment do not justify denying consumers information they need to make better choices among lawyers.

Several states have already proven that full disclosure can work well, especially using cyber technology.   Therefore, despite disagreeing two days ago with RealityChecker‘s proposal to use the internet to shame particular lawyers, I strongly endorse the principle of full openness in the disciplinary process.
Here’s what the legal reform group HALT said when issuing its Lawyer Discipline Report Card last autumn:

Openness of the Process
Although most lawyer discipline agencies are starting to make their services better known to the public, the vast majority of states do not allow much of the information that comes out of their disciplinary agencies [to become] known to the public. If consumers call their state agency and ask whether a grievance has ever been filed against a particular attorney, all but two states – Oregon and Arizona – refuse to respond. Few disciplinary agencies will even inform an inquiring consumer of whether the agency has ever admonished or reprimanded a particular lawyer.
Lawyer discipline agencies also make it difficult for the public to find out which attorneys have been disbarred, suspended and publicly censured. Most states bury these lists in bar journals and legal newspapers – publications that do not reach the general public. It seems that little has changed since 1970, when the Clark Commission reported that “[m]ost disciplinary agencies deliberately discourage any publication of their activities, believing that the public image of the profession is damaged by a disclosure that attorney misconduct exists.”
The HALT report also noted that a number of jurisdictions continue to keep hearings closed to the general public. “Florida, for example, allows only the grievant and the defendant lawyer into the hearing room. New York, Missouri and Nevada hold secret hearings – prohibiting even the person who filed the complaint from observing the proceedings.”   Furthermore, “gag rules”  still exist in nine states — Alaska, Arkansas, Georgia, Montana, Nebraska, Nevada, New Jersey, South Dakota, and Washington.   Those rules prohibit a consumer who files a grievance from speaking about it to anyone, threatening fines and imprisonment for contempt of court.  HALT’s Suzanne Mishkin correctly calls this “a clear violation of the First Amendment right of free speech.”
  • Grievance committee staff in many states that do not have a formal gag rule still informally advise a grievant not to make the complaint public.  When I filed a grievance a few years ago, I received a letter from bar counsel — who clearly knew I was a lawyer — saying I should not reveal the existence of the investigation, citing a rule that required confidentiality.  When I Iooked up the rule, I discovered that it only applied to the grievance committee staff.
You can find out more about individual states by checking out HALT’s Discipline Report Cards.  In addition, the ABA’s Committee on Professional Resposibility offers an extensive list of Links to Other Legal Ethics and Professional Responsibility Pages, with connections to relevant bar association and state grievance committees, as well as ethics rules and ethics opinions (if available) for every state.  The sunEthics website also has a comprehensive set of links for state-by-state legal ethics resources.
Using those resources, I looked at the 13 states receiving a “B” or better from HALT for the Openness of the Process, as well as the five states receiving “D” in that category. Iowa, Missouri, Montana, Nevada and South Carolina got the lowest grades for openness.   Among other deficiencies, none of those states publishes the names of sanctioned lawyers in places to which the general public has access.
The good news, however, is that a vanguard of states has instituted measures that significantly improve the public’s access to information about the discipline process and its results.  For example,
Annual ReportsArizona issues annual Reports of Lawyers Disciplined, which are available on the web.   Likewise, the Maryland grievance board has annual lists of Sanctioned Attorneys, from 2001 through 2003 (updated monthly), on its website. And, the New York State Bar Association posts an annual report, with a mountain of stats and the names of sanctioned attorneys, on its site.



Discipline Records:  There are a variety of approaches among the states for giving access to the public to the disciplinary records of attorneys:


  • New Jersey‘s ethics office has seachable disciplinary records from 1990 through 2002 on its website.
  • Oregon‘s bar counsel offers discipline reports online (which were difficult to find), and will inform an inquiring consumer whether a grievance has ever been filed against his or her attorney.
  • Illinois has web access to Disciplinary Decisions, New Filings, as well as a Lawyer Search function.  It also allows consumers to find out if an attorney has been disciplined.
  • Massachusetts (which HALT found to have the best Disciplinary Agency in the nation) offers all disciplinary Decisions since 1999 online, and allows consumers to find out if an attorney has ever been disciplined.
  • Indiana lets consumers ascertain the disciplinary history of a lawyer by telephoning the office of the Supreme Court Clerk.
  • Vermont has Decisions of Professional Conduct Board and Professional Responsibility Board online.
  • Washington offers a Lawyer Status Directory and a  Discipline Notice Search
  • Wisconsin‘s Office of Lawyer Regulation posts the Status of Lawyer Disciplinary Matters online.


This progress is great, but it is not enough.  The majority of states are still shamelessly secretive about lawyer discipline.  There are no good excuses.  Any state grievance committee or bar association that wants to fulfill its Openness obligation now has plenty of models to choose from, and learn from.  Okay, bar leaders, judges, and politicians, let’s get going.   Curious minds want to know — and have the right to know.



update: Delaware added an online Digest of Lawyer Discipline in Jan. 2005 (via HALT eJournal).


Giving Civil Disobedience a Bad Name

Filed under: pre-06-2006 — David Giacalone @ 9:54 am

The New Jersey Law Journal reports that its Supreme Court has refused to swallow the civil disobience claims of bar applicant Zachary Sanders, who insisted his three illegal trips to Cuba (and two failed attempts to sneak cigars through U.S. Customs) were acts of civil disobedience against the “immoral and unjust” embargo on Cuban travel and trade.  (“Cuba Trips, Cigars Sink Bar Applicant,” by Tim O’Brien, 09-09-03) 


 

According to the NJLJ, Sanders wrote to the high court that:


“In my estimation, being a lawyer does not mean blindly following unjust and immoral laws. . . . “A healthy respect for the rule of law, and one’s duty to comply with it as an officer of the Court, does not prevent one from engaging in civil disobedience.”

He invoked Gandhi, Thoreau and Martin Luther King Jr., and argued that if the character committee’s recommendation were to be followed, it would mean that “civil disobedience would be foreclosed.”


Well, we retort, not quite  — civil disobedience without consequences would be foreclosed, but that is not true civil disobedience.  According to the Columbia Encyclopedia, for example, Civil Disobedience entails “Risking punishment, such as violent retaliatory acts or imprisonment” in an attempt to bring about changes in the law.”  It does not entail breaking the law covertly, lying about it, and only espousing your worthy cause or political beliefs after you’re caught.

 

In my ongoing disagreement with assigned counsel in Massachusetts over their tactics seeking backpay and higher fees, I’ve seen similar attempts to water down the notion of civil disobedience.  The Massachusetts lawyers seem to feel that they just should be allowed to violate antitrust laws and ethical duties with impunity because — because they represent the indigent, because the State has so much power, because their fee demands are reasonable, because they’re angry and frustrated.   Gandhi and Martin Luther King, Jr. would strongly disagree, as would the Massachusetts author of “Civil Disobedience,” who made his home on Walden Pond.   

 

Maybe children can break rules and only expect a time out, but adults — especially lawyers — need to face the consequences of their choices when they violate laws.   If they do, they might find their arguments about symbolic gestures and good causes receiving a far more respectful response.  

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