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May 29, 2003

Sustained Objection

Filed under: — David Giacalone @ 9:03 pm

Sustained Objection: Lawyer-disciplinary process still woefully inadequate [Originally entitled “D” for Discipline]

by David Giacalone

Published June 22, 2003, with copyright reserved, by 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.

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). [see Blame Bar Counsel for the Capoccia Scandal]

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.

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