HALT - Lawyer Discipline Best Practices

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HALT - Lawyer Discipline Best Practices
    Lawyer Discipline Best Practices:Ten Reforms Disciplinary Agencies Are Doing Right Now to Protect the Public Clients trust attorneys with their deepest confidences at some of the most criticalmoments in their lives and rely on the system of lawyer discipline to protect them fromattorneys who abuse that trust. HALT has identified 10 best practices that provide modelsto help every state’s lawyer discipline system satisfy that responsibility. In addition toconducting our own analysis, we received recommendations from disciplinaryadministrators around the country. The officials drew upon their own day-to-dayexperience fielding complaints against attorneys to provide us with practical solutions tosome of the most critical challenges facing our nation’s lawyer discipline system.  (1)   Disclose a lawyer’s complete disciplinary history so that consumers canmake informed decisions about whether to hire an attorney. Too often, the public is kept in the dark about complaints filed against incompetent,dishonest or abusive lawyers. When a consumer calls the disciplinary agency to inquireabout a lawyer’s history of misconduct, administrators typically are forced to omit anumber of past transgressions because they never made their way onto the public record.Even when officials do disclose that an attorney was once formally sanctioned, the staff often does not know or is not at liberty to specify the basis for the discipline (e.g., theft,neglect or incompetence). Lawyer discipline agencies almost never release pendingcomplaints until they lead to formal charges, so the state bar may have to tell a prospectiveclient that the attorney he or she is considering retaining has never been disciplined, whenin fact there are dozens of unresolved complaints currently pending against the lawyer.By providing comprehensive information about complaints, charges and discipline(including informal sanctions) lodged against attorneys, state bars and courts armconsumers with critical information to help them decide whether to hire a particular lawyerand, more importantly, whether to trust that lawyer with their most valued resources.California, Florida, New Hampshire, Oregon and West Virginia all publicizelawyers’ complete disciplinary history, but Oregon sets the nation’sbest example. Sincethe Oregon Supreme Court’s decision in Sadler v. Oregon State Bar, 1 the disciplinaryrecords of Oregon lawyers—including dismissed grievances, pending matters and all pastinformal and formal sanctions—have been open to the public under Oregon’s PublicRecords Law. In summarizing its decision in Sadler  , the court concluded: “Opening up 1   Sadler v. Oregon State Bar  , 550 P.2d 1218 (1976).    -- 2 --the files of the Bar to the public may restore confidence in the integrity of the individualattorney and assure those concerned that the profession is truly committed to maintainingthe highest legal ethics.” 2  Consequently, the Oregon State Bar fields inquiries over the telephone about alawyer’s complete disciplinary history and makes all written records available for publicinspection. Disciplinary history for individual bar members is also available in asearchable database on the Web site for the Oregon State Bar.Dozens of states already have open government laws on the books and in the nextyear, lawyer discipline administrators should urge lawmakers to amend statutes to clarifytheir application to records collected by state disciplinary agencies. Lawyer disciplinebodies already keep decades of past files on hand and should make them available to thepublic as quickly as record management systems allow. (2)   Host a user-friendly Web site that is easy to find and provides helpfulinformation about the discipline process. Americans increasingly rely on the Internet as the first stop for finding information.To respond to consumers’ online needs, every state should host an easily navigable Website that provides the public with clear and comprehensive information about itsmechanism for holding lawyers accountable. An interested citizen should be able to locatethe site through a straightforward query on Google. Online disciplinary resources shouldbe easily navigable and include a downloadable complaint form, samples of completedcomplaint forms, guidance about what misconduct qualifies as an ethics violation, adatabase where consumers can search for pending and past disciplinary actions, links torules of professional conduct and information about other avenues for addressing disputeswith lawyers, such as the local fee arbitration board and the state’s client protection fund.Unfortunately, many states are still stuck in the Dark Ages with paltry and outdatedonline resources. Some jurisdictions offer little more than passing references to theexistence of a disciplinary mechanism without even supplying a phone number to call formore information. Even Web sites with more resources are often laced with complicatedlegal jargon and written in a sympathetic tone toward lawyers who have had complaintsfiled against them. Alabama’s Web site on attorney discipline was almost impossible tofind after multiple searches and when information was finally discovered, it seemed morefocused on shielding lawyers than safeguarding consumers. The introduction on its sitestates, “A complaint should not be made lightly or used to try to gain an advantage in yourtransactions with a lawyer. A lawyer who is accused of misconduct suffers whether or nothe is found to be at fault.” 2    Id. at 1227.    -- 3 --The Illinois Attorney Registration and Disciplinary Commission should serve as amodel for the rest of the country. The site is easily found online and features a user-friendly, logical interface. It offers a search tool that allows the public to check on anattorney’s disciplinary record, including pending complaints, as well as whether he or sheis covered by legal malpractice insurance. The site also provides a clear explanation of thedisciplinary process, written from the complainant’s perspective, and a downloadable“Request for Investigation” form. Consumers can access recently filed complaints, aschedule of upcoming hearings, links to rules governing lawyer conduct and thecommission’s annual reports, as well as information about the state’s client protectionfund.While cautioning against a “one-size-fits-all” approach to restructuring the lawyerdiscipline process, Douglas Ende, chief disciplinary counsel in Washington state, pointedto helpful components of his state’s Web site that could be exported to other disciplinarysites. Washington’s Web site includes information in four languages, brochures dealingwith common situations between clients and lawyers, details about the Lawyer’s Fund forClient Protection and a reference to each lawyer’s malpractice insurance coverage.Pennsylvania’s Web site also contains exemplary resources, including an engagingvideo emphasizing the board’s desire to protect clients from wayward attorneys. The siteoffers materials in Spanish, a helpful Frequently Asked Questions page and informationabout recently sanctioned attorneys.Dennis Carlson, Nebraska’s counsel for discipline, recommended Web sites go astep further than simply posting names of sanctioned lawyers by also offering consumers adirect link to the reported disciplinary case to give the public a more comprehensiveunderstanding of the lawyer’s misconduct.In 2008, the California State Bar transformed its Web site into a more usefulmechanism by posting lawyers’ pending disciplinary information online. Charges in thestate are public when they are filed and the bar’s board of governors concluded that thebest way of making the information available to consumers was through its Web site.Lawyer discipline systems across the country should request funds from the localcourt or state bar association to update and expand their disciplinary Web sites. Even if the agency cannot afford to hire a professional Web designer to upgrade the interface, limitscrolling and enrich readability functions, non-technical staff can still make some simpleimprovements. Administrators should revise the site’s language so that it is written fromthe consumer’s point of view, provide complaint forms in PDF form, update their siteswith hearing schedules and recent disciplinary rulings and include information about whatdoes and does not constitute an ethics violation. These straightforward changes will go along way toward increasing public access to an often mysterious system.    -- 4 -- (3)   Abolish closed-door sanctions and replace private admonitions with formaland public censures, fines, suspensions and disbarments. To increase transparency and public confidence in our system for holding attorneysaccountable, lawyer discipline agencies should heighten the visibility and severity of sanctions against wayward attorneys. Disclosure of discipline deters misconduct by othersin the profession, enhances the public perception of the self-regulated system and enablesprospective clients to make better-informed decisions about hiring a particular lawyer.Addressing incompetent and abusive actions with real consequences—public censures,fines, suspensions and in the most egregious cases, permanent disbarment—effectivelyfilters the pool of qualified lawyers available to the public.Unfortunately, most states typically give disreputable lawyers little more than a slapon the wrist and routinely hide incompetent and deceptive practices from the public.Behind closed doors, panels often admonish lawyers to avoid repeating transgressions orreprimand them for a more severe offense—but these sanctions are usually left off thepublic record. Many states limit public discipline to serial offenders and to those whocommit crimes or ruthless misconduct against multiple victims.As of 2010, 15 states discipline all lawyers out in the open. Jurisdictions includingArizona, New Jersey and Washington have never applied or, in some cases, recentlyabolished concealed sanctions. New Jersey, for example, amended its court rules in 2000to explicitly eliminate secret scoldings, saying: “There shall be no private discipline.” 3  Instead, the Office of Attorney Ethics publicly reprimands, censures, suspends and disbarswayward attorneys. Even in cases of minor misconduct, the office publicly admonisheslawyers and includes the offense on the attorney’s record.Agreeing with the need for meaningful sanctions, Frederick Iobst, chief counsel toDelaware’s disciplinary system, suggested states follow Delaware’s lead by givingdisciplinary officials the authority to impose court-ordered restitution. By implementingthis reform, victims could be reimbursed for losses suffered at the hands of a fraudulentlawyer.As a short-term goal, states still applying discipline behind closed doors shouldeliminate unofficial “three-strikes-you’re-publicly-sanctioned” practices and treat each ruleviolation with serious consequences. In the coming years, courts and state bars shouldamend their disciplinary rules to abolish private discipline and to make every transgressiona matter of public record. In addition to issuing public sanctions, disciplinary bodiesshould have the power to impose restitution so that victims may be compensated for anattorney’s abuse or neglect. 3 See New Jersey Court Rule 1:20(d) (2008).
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