Lawyer Regulation for A New Century
Report of the Commission on Evaluation of Disciplinary Enforcement
February 1992
Commission on Evaluation of Disciplinary Enforcement
(1989-1992)
Raymond R. Trombadore, Chair
Somerville, New Jersey
Robert B. McKay, Chair 1989-1990 (deceased)
New York, New York
Hon. Oscar W. Adams, Jr.
Birmingham, Alabama
Don Mike Anthony
Pasadena, California
John T. Berry
Tallahassee, Florida
Ellen Feingold
Boston, Massachusetts
Donald M. Haskell
Astoria, Oregon
Charles W. Kettlewell
Columbus, Ohio
Timothy Kevin McPike, Reporter
Chicago, Illinois
Charlotte K. Stretch, Special Counsel
Longwood, Florida
DEDICATION
No lawyer, and no client, can be indifferent to the disciplinary enforcement system. If the process is performed sensibly and quickly it will provide for lawyers and clients alike a needed service to assure honorable and effective delivery of legal services. If the disciplinary process does not meet that standard, a disaffected public is likely to impose limits upon the process . . . . Continuity of judicial regulation of the legal profession depends on action taken by the profession itself. Robert B. McKay, 1990
The report of the ABA Commission on Evaluation of Disciplinary Enforcement is dedicated to Robert McKay, who served as the Commission's Chair until his death in July 1990. Professor McKay possessed an innate devotion to equality and social responsibility. During his lifetime, he became a symbol of public service and of commitment to the public interest.
CONTENTS
Regulation of the Profession by the Judiciary
Recommendation 1: Regulation of the profession by the judiciary
Recommendation 2: Supporting judicial regulation and professional responsibility
Expanding Regulation to Protect the Public and Assist Lawyers
Direct and Exclusive Judicial Control of Lawyer Discipline
Increasing Public Confidence in the Disciplinary System
Expediting and Facilitating the Disciplinary Process
Recommendation 9: Procedures in lieu of discipline for minor misconduct
Recommendation 10: Expedited procedures for minor misconduct
Recommendation 11: Disposition of cases by a hearing committee, the Board or Court
Implementing Existing ABA Policy to Expedite the Disciplinary Process
Implementing Existing ABA Policy to Facilitate the Disciplinary Process
Improving the Quality of Decisions
Recommendation 17: Burden of proof in arbitration of fee disputes
Recommendation 19: Effective date of disbarment and suspension orders
Improving Interstate Enforcement
Appendix A: Implementation of Clark Committee Recommendations
Appendix B: Commission Operations
Appendix C: Members of the Commission
Appendix D: Complete Text of Recommendations as Adopted by the House of Delegates
On February 4, 1992, the American Bar Association House of Delegates adopted the Report of the Commission on Evaluation of Disciplinary Enforcement. The Commission was created in February 1989 to conduct a nationwide evaluation of lawyer disciplinary enforcement and to provide a model for responsible regulation of the legal profession into the twenty-first century. In the January 1990 issue of the ABA Journal, the late Robert B. McKay articulated the task of the Commission:
The mission of the Commission is no less than to move the system of lawyer discipline into a future only now beginning to be recognized. The solutions projected must be creative, yet pragmatic enough to meet the needs of the new century, which is scarcely further removed than around history's corner.
A draft of the Commission report was circulated for comment in May 1991 to all members of the ABA House of Delegates, Section and Division officers, Standing and Special Committee chairs and liaisons, members of the highest court in each state, state and local bar presidents, presidents-elect and executive directors, disciplinary counsel and the chairs of disciplinary boards, client protection fund administrators and chairs, consumer groups, and to persons who testified at the Commission's public hearings. The Commission received extensive and thoughtful comments. The Commission wishes to thank the many entities and people who spent time reviewing the report, especially the Standing Committee on Professional Discipline.
Based on the comments received, the Commission made several changes to the report and submitted its final report to the House of Delegates in December 1991. Most of the 22 recommendations were approved by the House of Delegates without modification. This edition contains the Commission's recommendations as amended and approved by the House, and separately notes those recommendations rejected by the House. Where amendments were made, comments to the recommendations state the Commission's original recommendation and reasoning. Except where this report discusses the amendments made in February 1992, the text of this report is identical to the December 1991 report to the House of Delegates.
Many recommendations will result in changes to the current ABA Model Rules for Lawyer Disciplinary Enforcement. Other recommendations will affect client protection fund mechanisms, bar regulation and activities, dispute resolution, lawyers' professional liability, professionalism, lawyer competence, and other aspects of professional regulation. The ABA Standing Committee on Professional Discipline and the ABA Special Coordinating Committee on Professionalism will be the coordinating bodies for the national implementation of these policies.
The Commission would like to thank the staff of the ABA Center for Professional Responsibility --- Charlotte K. Stretch, Special Counsel; Timothy K. McPike, Reporter; and Gerri Sandner, Administrative Assistant --- for their excellent work with the Commission's surveys, hearings, meetings and this report.
Background and Charge
The American Bar Association established the Commission on Evaluation of Disciplinary Enforcement in February, 1989. The Commission's charge was to: (1) study the functioning of professional discipline systems; (2) examine the recommendations of the ABA Special Committee on Evaluation of Disciplinary Enforcement (the Clark Committee) and the results of later reforms; (3) conduct original research, surveys and regional hearings; (4) evaluate the state of disciplinary enforcement; and (5) formulate recommendations for action. See Appendix B: Commission Operations, and Appendix C: Members of the Commission.
To accomplish its charge, the Commission had to examine not just complaints that disciplinary systems address, but all complaints. Disciplinary agencies dismiss tens of thousands of complaints annually. These complaints must be reviewed and screened out, burdening the system and frustrating complainants. To address this problem, the Commission makes recommendations that go beyond the scope of the disciplinary system. These recommendations are, in the Commission's view, not only well within our charge, but essential to fulfilling it.
Progress Since the Clark Report
Twenty years ago, the ABA Special Committee on Evaluation of Disciplinary Enforcement (the Clark Committee) published Problems and Recommendations in Disciplinary Enforcement (1970) (the Clark Report). The Clark Committee conducted the first nationwide examination of lawyer disciplinary procedures in the United States.
The Clark Committee warned of a "scandalous situation" in professional discipline and called for "the immediate attention of the profession." Today this Commission can report that most states have resolved many of the problems identified by the Clark Committee. Our detailed findings are set out in Appendix A: Implementation of Clark Report Recommendations.
It is no exaggeration to say that revolutionary changes have occurred. Twenty years ago, most states conducted lawyer discipline at the local level with no professional staff. Lawyer discipline was a secretive procedural labyrinth of multiple hearings and reviews. At the national level, there was the ABA's Model Code of Professional Responsibility, but little coordination, guidance or research.
Today almost all states have professional disciplinary staff with statewide jurisdiction. Most have eliminated duplicative procedures. In over half the states, disciplinary hearings are public. Several national organizations exist, including the ABA Center for Professional Responsibility, the ABA Standing Committee on Professional Discipline, and the National Organization of Bar Counsel. These groups formulate standards, conduct research, present educational programs, compile statistics, and consult with disciplinary officials. The ABA Center and the Bureau of National Affairs publish a comprehensive reference manual on professional responsibility. The Center also operates a national data bank on disciplined lawyers. In the two decades since the Clark Report, most states and the ABA have adopted most of its recommendations.
At the local, state, and national levels, the profession has continually reviewed and improved lawyer disciplinary systems since the Clark Report. At the request of state bar associations and state high courts, the ABA Standing Committee on Professional Discipline has evaluated more than thirty disciplinary agencies and made recommendations for improvement. The Committee also provides technical and research assistance in drafting disciplinary rules. The Committee's ongoing evaluation program not only assists state high courts, it also provides the Committee with feedback and new ideas to improve ABA disciplinary policy. Since the Clark Report, the Committee has formulated and proposed many significant improvements to ABA policy, including expungement of disciplinary records, trust account record-keeping rules, Standards for Imposing Lawyer Sanctions, and numerous technical improvements to the Model Rules for Lawyer Disciplinary Enforcement.
This cooperation among local, state, and national bar associations and state high courts has resulted in constant improvement and refining of disciplinary procedures. The most recent product of this ongoing process was the establishment of this Commission.
The Need to Expand Regulation to Protect the Public and Assist Lawyers
Times, however, have changed. The expectations of the public and the client have changed. The existing system of regulating the profession is narrowly focused on violations of professional ethics. It provides no mechanisms to handle other types of clients' complaints. The system does not address complaints that the lawyer's service was overpriced or unreasonably slow. The system does not usually address complaints of incompetence or negligence except where the conduct was egregious or repeated. It does not address complaints that the lawyer promised services that were not performed or billed for services that were not authorized.
Some jurisdictions dismiss up to ninety percent of all complaints. Most are dismissed because the conduct alleged does not violate the rules of professional conduct. The Commission has gathered much information about these dismissed complaints. It convinces us that many of them do state legitimate grounds for client dissatisfaction. The disciplinary system does not address these tens of thousands of complaints annually. The public is left with no practical remedy. While some states have created fee arbitration and other programs, additional avenues should be created in all states to resolve these complaints.
The disciplinary process also does nothing to improve the inadequate legal or office management skills that cause many of these complaints. Many state bar associations have mandatory continuing legal education, substance abuse counseling, and other programs. However, these programs usually are not coordinated with the disciplinary process. Lawyers with substandard skills often need more help than these programs can provide. The judiciary and profession should create new programs and coordinate all such programs with the disciplinary system.
The Need to Strengthen Regulation of the Profession by the Judiciary
Neither the profession nor the judiciary can permit this situation to continue. Clients, the public, the justice system, and the profession are suffering harm from this state of affairs. If it does continue, the public may remove the authority of the judiciary to regulate lawyers. There have been several attempts to do so in the last twenty years. The failure of the profession and the judiciary to act imperils the inherent power of the court to regulate its officers. It threatens the independence of counsel. The judiciary must expand the regulatory structure and improve the disciplinary system. This is necessary to protect the public and to insure the judiciary's power to regulate the profession. No system will satisfy every client, but the system should strive to right wrong conduct.
The Need for Direct and Exclusive Judicial Control of Lawyer Discipline
To strengthen judicial regulation of the profession, it must be distinguished from self-regulation. Control of the lawyer discipline system by elected officials of bar associations is self-regulation. It creates an appearance of conflicts of interest and of impropriety. In many states, bar officials still investigate, prosecute, and adjudicate disciplinary cases. The state high court should control the disciplinary process exclusively. It should appoint disciplinary officials who are independent of the organized bar. The Court should oversee the disciplinary system with as much care and attention as it devotes to deciding cases.
The Need to Increase Public Confidence in the Disciplinary System
Secret disciplinary proceedings generate the most criticism of the system. It is ironic that this attempt to shield honest lawyers' reputations has made the profession look so bad. What does the public think of hearings held behind closed doors? What does the public think when the disciplinary agency threatens the complaining party with imprisonment for speaking publicly about the complaint? These do not sound like the judicial proceedings of a free society. Indeed, several federal and state courts have held that such provisions violate federal or state constitutional provisions. The public will never accept the claim that lawyers must protect their reputations by gag rules and secret proceedings.
In many states, not only does the disciplinary agency threaten the complainant, the respondent lawyer can file a libel suit. Disciplinary counsel summarily dismiss complaints with no explanation of the decision. Complainants have no right to have the decision reviewed. The way many disciplinary systems treat complainants does not inspire confidence in the process.
The Need to Expedite the Disciplinary Process
Most complaints allege minor incompetence, minor neglect, or other minor misconduct. Most disciplinary agencies do not consider single instances of incompetence or neglect to be grounds for disciplinary action, although technically these do violate the rules of professional conduct. See Model Rules of Professional Conduct 1.1, 1.3. Disciplinary counsel routinely dismiss these complaints.
When a lawyer shows a pattern of incompetence, neglect or minor misconduct, most disciplinary agencies have only two options. They can (1) negotiate a private admonition or public reprimand with the respondent's consent, or (2) hold a formal hearing.
Dismissing valid complaints does nothing to correct the lawyer's behavior or compensate the client. Dismissing so many complaints casts suspicion on the disciplinary process. An admonition or reprimand may motivate the lawyer to change, but provides no guidance on how to change. Formal disciplinary proceedings cost time and money out of proportion to the minor nature of the offense. They divert resources from serious cases.
In these cases, the complainant needs a remedy and the lawyer needs additional skills and guidance. Programs should be created to provide them. When discipline is appropriate, the system needs expedited procedures commensurate with the sanctions (admonition or reprimand) involved.
The Need to Provide Adequate Resources
In the last twenty years, lawyers have volunteered hundreds of thousands of hours to carry out Clark Committee reforms. Lawyers also have paid millions of dollars to fund disciplinary agencies. Still, funding and staffing have not kept pace with the growth of the profession. Most agencies handle cases of serious misconduct effectively, but some agencies are so underfunded and understaffed that they offer little protection against unethical lawyers. The highest courts in these states should provide the funds needed to operate their disciplinary systems effectively.
The Need for Preventive Measures
Every year, millions of dollars of clients' money are stolen by a relatively few lawyers. Yet, most disciplinary systems lack authority to take basic preventive measures such as auditing trust account records or monitoring trust account overdrafts.
Another area calling for preventive measures is fee disputes. Fee disputes generate many disciplinary complaints. These complaints clog the disciplinary process. Most are summarily dismissed, because the lawyers' conduct did not violate the rules of professional conduct. This is a continuing source of the public's dissatisfaction with the profession. Written fee agreements could prevent many fee disputes, or at least simplify resolution of them.
The Need to Improve Interstate Enforcement
With admirable prescience, the Clark Committee called for the creation of a National Discipline Data Bank. The American Bar Association created the Data Bank in 1968 to help states share disciplinary information. However, since the Clark Report was published, the number of lawyers in the United States has more than doubled. Today, more lawyers are licensed in more than one state. The increasing number of lawyers has created new problems.
It is no longer practical for disciplinary counsel to manually compare the Data Bank's annual report to the state's roster of lawyers. There is no efficient way to know that a name on the report and the roster identifies the same lawyer. A recent survey of disciplinary counsel shows that they seldom use the Data Bank report because of these limitations. Most reciprocal disciplinary actions result from ad hoc communications between disciplinary counsel, not from the Data Bank lists. Under present conditions, a lawyer could be disbarred in one state and continue practicing elsewhere without detection.
The Need to Fully Implement Essential Provisions of the Model Rules for Lawyer Disciplinary Enforcement
The Clark Report, as modified and implemented by the ABA Model Rules for Lawyer Disciplinary Enforcement (MRLDE), reshaped lawyer discipline in the United States. Yet some states have not adopted basic reforms contained in the MRLDE. These basic reforms have withstood the test of time in those jurisdictions that have adopted them. See Appendix A. No court can afford to keep rules that impede enforcement, especially when effective procedures exist that have been tested in other jurisdictions. The profession and the judiciary must finish the work started by the Clark Committee by adopting the basic provisions of the MRLDE.
The Need for Immediate Action
During the Commission's investigations, we heard much criticism of the profession. Some of the public's dissatisfaction is a misunderstanding of the lawyer's role. Some is misplaced unhappiness with the results of legal proceedings. Many negative perceptions about the profession are out of proportion to reality. Most lawyers are honest and skillful, and their clients respect them.
Unlike other professionals, lawyers are more likely to be criticized because of the nature of their work. In litigation, fifty percent of the clients lose their cases. In domestic relations, almost everyone leaves the proceedings with some sense of dissatisfaction. Some clients who are unhappy with the results of litigation will continue to complain about their lawyers, and no amount of reform will eliminate that criticism.
However, much of the criticism we heard is justified and accurate. Some practices must change immediately if regulation is to remain under the judiciary. The public views lawyer discipline as too slow, too secret, too soft, and too self-regulated. The Commission can report that most states discipline serious misconduct effectively. This is not enough. The profession and judiciary must face the problems we have identified. They must make necessary reforms to improve both the practice of law and the system of regulating the profession. While no system will satisfy all complainants, these improvements will demonstrate to the public that judicial regulation is effective.
REGULATION OF THE PROFESSION BY THE JUDICIARY
The ABA Board of Governors charged the Commission to examine all aspects of lawyer discipline. Therefore, the Commission seriously considered the criticism that judicial regulation of the profession is inherently flawed. Some critics assert that the legislature should regulate lawyers. The Commission examined both the history and status of professional regulation. We considered the arguments and evidence for and against regulation by the judiciary.
We find a significant distinction between self-regulation and judicial regulation of lawyers: regulation of the disciplinary system by elected bar officials, self-regulation, creates basic problems. The most serious of these are the appearance of conflicts of interest and the appearance of impropriety. See Recommendations 5 and 6. However, judicial regulation of lawyers is essential to both the courts and the profession.
Recommendation 1
Regulation of the Profession by the Judiciary
Regulation of the legal profession should remain under the authority of the judicial branch of government.
Comments
Exclusive judicial regulation of lawyers has developed since colonial times. In the nineteenth century, both the judiciary and the legislature exercised some control over the profession. Disputes between the two usually arose over bar admissions. By the end of the nineteenth century, however, state courts were asserting an exclusive right to regulate lawyers. They based this right on the constitutional doctrines of inherent power and separation of powers.1
This assertion of judicial power resulted from two circumstances. First, the number of law schools and graduates increased. Courts became concerned about the quality of these schools and graduates. They created the bar examination and later character and fitness inquiries as additional admission requirements. Second, neither state legislatures nor state executives were taking action against unethical lawyers. The courts did so, claiming the inherent power to discipline lawyers as officers of the court.2
Today, judicial regulation of lawyers is a principle firmly established in every state. A 1987 study by The National Center for State Courts found that thirteen state constitutions expressly grant the judiciary authority to regulate lawyers. The study found state high courts' opinions unanimous that regulation of lawyers is an inherent judicial function.3
Judicial regulation of the profession has been challenged repeatedly during the last decade. In 1984, the Florida Legislature considered legislation for legislative regulation of the bar. The California Legislature created a Bar Monitor to conduct an ongoing evaluation of the judiciary's disciplinary function and to report to the legislature. National legal consumer groups have lobbied several state legislatures to regulate lawyers. The Federal Trade Commission unsuccessfully sought Congressional approval to regulate aspects of the lawyer-client relationship.
Supporters of legislative regulation argue that the practice of law affects the public more than it affects the courts. They argue that the legislature, as an elected body, is more likely to regulate in the public interest. They argue that the inherent power and separation of powers doctrines do not require exclusive regulation by the judiciary. Legislatures, they claim, could still regulate to the extent necessary to protect the public interest. They argue that the practice of law is not so technical that it requires lawyers to regulate it. Informed nonlawyers, they claim, could regulate effectively.
Supporters of legislative regulation emphasize the fact that judges are lawyers. They argue it is a conflict of interest for lawyers to regulate themselves because their own economic interests and social status are at stake. When the courts delegate regulation to bar associations, they argue, the conflict is greater.
Finally, supporters of legislative regulation deny that legislative regulation would impair the independence of lawyers. Exclusive judicial regulation is a recent development. They argue that lawyers were challenging government decisions long before it developed. They believe that a lawyer regulatory system created by the legislature could be insulated from political pressure.
The Commission carefully examined these arguments and considered two basic questions. Does judicial regulation of lawyer discipline fail to treat complainants fairly or fail to protect the public because of an inherent conflict of interest? Does legislative regulation of other professions result in better protection of complainants and the public?
To answer these questions, the Commission surveyed nonlawyer adjudicators of lawyer disciplinary agencies. More than thirty lawyer discipline agencies have nonlawyer adjudicators. We asked them if the system was fair. The Commission also studied several agencies established by state legislatures to regulate other professions. We examined their power to protect the public compared to that of lawyer disciplinary agencies. The Commission also heard many witnesses on the issue during our regional hearings. Finally, the Commission discussed the issue for several hours with the President of the National Clearinghouse on Licensure, Enforcement, and Regulation, an interstate association of legislatively created regulatory agencies.
The Commission found no persuasive evidence that legislative regulation of other professions has resulted in better protection of the public. In general, legislatively created regulatory bodies suffer from the same problems as do judicially created lawyer disciplinary agencies. Public representation is no higher on most other professional regulatory bodies than on lawyer disciplinary boards. In this regard, other professions are as "self-regulating" as the legal profession or more so. Legislatively created regulatory agencies suffer from understaffing, underfunding, and delays in adjudication as much as do some lawyer disciplinary agencies.4 Most legislatively created agencies' ability to redress complaints is similarly limited to suspending or removing the respondent's license.
In at least one aspect, judicial regulation of the legal profession offers better protection to the public. Almost all state high courts have created client protection funds to compensate victims of lawyer misconduct. Lawyers pay to create these funds. There is no cost to the taxpayer. No legislatively created regulatory mechanisms match lawyer client protection funds in amount of reimbursement, funding by the members of the profession, or nationwide scope.
Finally, a large majority of nonlawyer disciplinary officials believe the system is fair and unbiased.5 These nonlawyers adjudicate discipline cases and are intimately familiar with the system.
The Commission finds no basis to believe that legislative regulation of lawyers per se would be an improvement over judicial regulation. We find no persuasive evidence that legislative regulation of other professions has addressed similar problems more successfully. We find no persuasive evidence that other professions are better regulated or the public better protected because of legislative control. Most important, we find no persuasive evidence that a system regulated by the judiciary is biased for respondent lawyers against complainants. To the contrary, we find strong evidence from those nonlawyers most familiar with judicial regulation that it is fair.
There is no compelling need for or inherent advantage in legislative control of the legal profession. Instead, there are strong reasons to retain judicial regulation. As decisions by every state high court have recognized, lawyers are officers of the court indispensable to the court's operations. As such, the courts must have the power to regulate them.
It has been well settled, by the rules and practice of common-law courts, that it rests exclusively with the court to determine who is qualified to become one of its officers, as an attorney and counsellor, and for what cause he ought to be removed.
Ex parte Secombe, 60 U.S. (19 How.) 9, 15 L.Ed. 565 (1856)
It is a fundamental principle of constitutional law that each department of government, whether federal or state, "has, without any express grant, the inherent right to accomplish all objects naturally within the orbit of that department, not expressly limited by the fact of the existence of a similar power elsewhere or the express limitations in the constitution" . . . . [emphasis in original]
The primary duty of courts is the proper and efficient administration of justice. Attorneys are officers of the court and the authorities holding them to be such are legion. They are in effect an important part of the judicial system of this state. It is their duty honestly and ably to aid the courts in securing an efficient administration of justice. The practice of law is so intimately connected and bound up with the exercise of judicial power and the administration of justice that the right to define and regulate its practice naturally and logically belongs in the judicial department of our state government.
In re Integration of Nebraska State Bar Association, 133 Nebr. 283, 275 N.W. 265, 114 A.L.R. 151 (1937)
While doctors, plumbers, electricians, barbers, etc. may sell their time and skill to the public by virtue of their license from the state, the attorney alone has the right to set the judicial machinery in motion in behalf of another and to thus participate as an officer of the court in a judicial proceeding. This right springs from his status as an officer of the court. To properly function it is necessary that courts retain control of their officers . . . . "The courts, and not juries or legislators, must ultimately determine the qualifications and fitness of their officers." [citation omitted]
Ruckenbrod v. Mullins, 102 Utah 548, 133 P.2d 325, 144 A.L.R. 839 (1943)
There is another reason why the judiciary must regulate the legal profession. The Sixth Amendment to the United States Constitution, made applicable to the states by the Fourteenth Amendment, guarantees the right to assistance of counsel in all criminal prosecutions. That assistance must be both effective and independent of political influence.
The Commission believes that legislative regulation will impair the independence of lawyers. While historically legislative regulation was benign, it was also laissez faire, so much so that courts assumed regulatory control to stop ethical abuses. See, e.g., People ex rel. Karlin v. Culkin, 248 N.Y. 465, 162 N.E. 487, 60 A.L.R. 851 (1928). Legislative regulation that did exist mostly concerned admissions requirements.6 Modern proponents of legislative regulation would have legislatures regulate aspects of the lawyer-client relationship to protect "consumer" interests. It is precisely in this area that the protection of the client must be delicately balanced with the independence of the lawyer from political pressure. History offers no basis for comparison.
History offers no comfort that active legislative regulation would protect the independence of counsel. The legislature responds to the political will of the people. From the Alien and Sedition Acts of 1798 to the McCarthy era of the 1950s, history has shown that the people's respect for individual rights can sink dangerously low. Legislatures act accordingly. During such times, an independent judiciary and legal profession are necessary to protect those rights.
It is easy to forget how fragile our liberties are. Beyond our borders are myriad examples of the need for an independent legal profession. Around the world, suppression of the legal profession is a basic tool of authoritarian governments. Amnesty International and the Lawyers Committee for Human Rights have units that specialize in monitoring political arrests of lawyers.
Proponents insist, however, that procedures could be devised to shield lawyers from political pressure under legislative regulation. Since the Commission finds no advantages in legislative regulation, there is no reason to take such a risk. This Commission finds a need to expand the scope and efficiency of regulation. These changes can be accomplished under judicial regulation. The call for legislative regulation as a solution is short-sighted. The solution is illusory.
There is a basic requirement for effective judicial regulation. The state high court must closely oversee the disciplinary system. The Commission conducted a survey of state high court justices. The survey asked the justices about the problems their lawyer disciplinary systems faced. Their answers showed that while they considered discipline important, most were not aware of the many problems we have discovered.
Of course, the Court should delegate day-to-day administration of the system. The disciplinary counsel should have independence and prosecutorial discretion. See Recommendations 5 and 6. The Court should, however, give lawyer discipline as high a priority in its attention as the processing of cases. It should keep itself informed of the operations and problems of the disciplinary system. It should anticipate developing problems and take action. The Court should require the disciplinary agency administrators to make periodic, detailed reports to the Court. Disciplinary agency officials should meet with the full Court periodically. See Model Rule of Lawyer Disciplinary Enforcement 2G(2).
Judicial regulation of the profession and direct and exclusive judicial control of lawyer discipline will not diminish the role of the organized bar. See Recommendations 5 and 6, commentary. Responsibility and authority for implementation of many of the recommendations of this Commission will devolve in large measure upon the organized bar. Programs of mediation and arbitration and lawyer practice assistance programs can and should be administered by the bar as part of a system of lawyer regulation. Lawyer substance abuse counseling programs should function in the same way. See Recommendations 3 and 4. Furthermore, the disciplinary process in most jurisdictions will continue to rely upon volunteer lawyer adjudicators. See MRLDE 3A.
Recommendation 2
Supporting Judicial Regulation and Professional Responsibility
2.1 The American Bar Association should continue to place the highest priority on promoting, developing, and supporting judicial regulation of the legal profession and professional responsibility.
2.2 The Association should continue to provide adequate funding and staffing for activities to support judicial regulation and professional responsibility.
2.3 To promote the most efficient allocation of resources, the Association should establish written policies to insure that all of its judicial regulation and professional responsibility activities are coordinated, regardless of the Association entity conducting the activity.
Comments
Judicial regulation of the profession and professional responsibility must remain the highest priorities of the ABA. The ABA should implement this recommendation in its most concrete form --- in difficult decisions allocating people, money, and time. We recognize that many interests compete for ABA resources. However, judicial regulation of the profession is essential to both the courts and the profession. Professional responsibility is equally essential. Lawyers should never forget that they are members of a profession, not a business. Lawyers' primary responsibility is to serve the client, the justice system and the public.
The American Bar Association has been a prime mover in developing discipline, ethics, professionalism, client protection, and other professional responsibility activities. Since the Clark Report, the ABA Center for Professional Responsibility and associated standing committees have focused on these activities. Also, ABA sections, special commissions, and other entities have conducted professional responsibility activities. These activities have included developing educational programs, model rules and procedures, research materials, surveys, technical and legal research, and many other resources. These many activities of many different groups should be coordinated to achieve the most efficient use of resources.
All lawyer disciplinary agencies in the United States depend on such ABA activities. Without these efforts over the last twenty years, professional regulation would be in dire straits today. The ABA's members, House of Delegates, and Board of Governors should remain committed to judicial regulation and to professional responsibility during the next twenty years and beyond as they have during the last.
EXPANDING REGULATION TO PROTECT THE PUBLIC AND ASSIST LAWYERS
Existing regulation, while generally effective in disciplining serious misconduct, does not adequately protect the public from lawyer incompetence and neglect. This failure is having severe repercussions for the legal profession.
In 1988, over forty-four thousand disciplinary complaints were summarily dismissed. In some jurisdictions up to ninety per cent of all complaints filed were summarily dismissed. Most of these were dismissed for failing to allege unethical conduct. Some of these complaints fail to allege grounds for any type of response, even under the expanded system proposed here, but many others do allege facts that should be addressed. The thousands of dismissed complaints in this second category show a gap exists between reasonable client expectations and existing regulation. It is clear that tens of thousands of clients alleging legitimate grounds for dissatisfaction with their lawyer's conduct are being turned away because the conduct alleged would not be a violation of disciplinary rules.7,8 The disciplinary system was not designed to address complaints about the quality of lawyers' services or fee disputes. Yet in all but a few states it is the only regulatory body available to complainants.
The incompetence and neglect of relatively few lawyers must not continue to sully the image of the rest. We cannot afford to let legitimate disagreements between lawyers and clients go unresolved. Without a mechanism to resolve these complaints and disputes, clients are harmed and the profession's reputation unnecessarily suffers.
The consequences of continuing to ignore these problems are clear. The Federal Trade Commission has made several attempts to gain jurisdiction over some complaints against lawyers. State legislatures have made forays into lawyer regulation with increasing frequency. Legal consumer organizations have grown in membership and in political activism.
Disciplinary proceedings, reimbursement from client protection funds, and civil suits for legal malpractice are all that exists in most jurisdictions to redress client injury. These are insufficient in several respects.
Discipline primarily offers prospective protection to the public. It either removes the lawyer from practice or seeks to change the lawyer's future behavior. Protection of clients already harmed is minimal. Respondents are sometimes ordered to pay restitution in disciplinary cases. However, in many states, the failure of a lawyer to make restitution ordered in a disciplinary proceeding will not bar subsequent readmission to practice.
Clients can seek restitution from client protection funds in those states that have them. Client protection funds are an innovation of the legal profession unmatched by any other profession. Every year lawyers, through payments into the funds, reimburse millions of dollars to clients harmed by unethical lawyers. The profession can truly be proud of this achievement.
However, the ability of client protection funds to compensate clients is limited. Restitution is generally available only when a lawyer has stolen client funds. Many client protection funds have limitations on the amounts that will be paid on any one claim. Many client protection funds require a finding of misconduct by the disciplinary agency before a claim will be considered, delaying reimbursement sometimes for years.
Not only are disciplinary agencies and client protection funds limited in the types of remedies they provide but, except for the most egregious cases, they do not address lawyer incompetence and neglect. Most jurisdictions treat individual instances of incompetence and neglect as not violative of the rules of professional conduct or as a minimal violation not worthy of disciplinary action. Yet these types of cases constitute a large proportion of all complaints filed with disciplinary agencies against lawyers.
Other lawyer conduct not regulated by discipline mechanisms is that which generates fee disputes. Fee disputes may arise because a lawyer fails to provide services in the manner promised, delays performance, fails to clarify the computation of the fee, gives an unrealistic initial estimate of the fee, or behaves in other ways that are unfair to the client and unprofessional. This behavior, while perhaps not a violation of the rules of professional conduct, is clearly a legitimate ground for complaint from a client's perspective. Only a handful of jurisdictions mandate that the lawyer submit to arbitration when there is a prima facie legitimate fee dispute. In all other jurisdictions, most clients who have a legitimate dispute are without an economically feasible remedy. Their only options are to sue or to not pay the fee and be sued by the lawyer. The sum involved may be substantial to the client, but often the cost to litigate will be more than the amount in dispute. The client often files a complaint with the disciplinary agency, but the claim is dismissed. The National Organization of Bar Counsel9 reports that fee dispute issues constitute the second largest category of complaints dismissed for lack of jurisdiction. The profession can no longer afford to ignore these complaints. For every such complaint filed and dismissed, undoubtedly many more clients simply give up without filing a complaint and then blame the profession.
In most jurisdictions, the only option for aggrieved clients other than the disciplinary agency or the client protection fund is a malpractice suit. While the Commission has heard claims that lawyers are unwilling to sue other lawyers, there is ample evidence to suggest that a client with a reasonable claim for large enough damages will be able to find representation. The problem is not the willingness of lawyers to handle malpractice cases but that the time and expense of a civil suit make only large claims economically feasible. Even when the claim is for a large sum, full civil proceedings are a slow and expensive method of resolving the dispute. Also, many types of lawyer conduct that are legitimate grounds for client dissatisfaction and dispute may not constitute malpractice.
The profession's attempts to deal with substandard practice have not worked. The "code of professionalism" is valuable only to those predisposed to improve their practice. Peer review programs have not been accepted. Mandatory continuing legal education programs may keep lawyers' legal skills current, but they were not designed to remedy substandard skills. While legal malpractice is a growing specialization, it must surely be the least desirable means of self-regulation. What is required is a variety of methods to address the different types of problems and circumstances that create disputes between lawyers and clients. See chart on page 15.
Recommendation 3
Expanding the Scope of Public Protection
The Court should establish a system of regulation of the legal profession that consists of:
3.1 component agencies, including but not limited to:
(a) lawyer discipline,
(b) a client protection fund,
(c) mandatory arbitration of fee disputes,
(d) voluntary arbitration of lawyer malpractice claims and other disputes,
(e) mediation,
(f) lawyer practice assistance,
(g) lawyer substance abuse counseling; and
3.2 a central intake office for the receipt of all complaints about lawyers, whose functions should include: (a) providing assistance to complainants in stating their complaints; (b) making a preliminary determination as to the validity of the complaint; (c) dismissing the complaint or determining the appropriate component agency or agencies to which the complaint should be directed and forwarding the complaint; (d) providing information to complainants about available remedies, operations and procedures, and the status of their complaints; and (e) coordinating among agencies and tracking the handling and disposition of each complaint.
Comments
The availability of more than one mechanism to resolve disputes can backfire and result in increased public dissatisfaction unless a simple and direct procedure exists for making a complaint. Complainants should not be expected to know the distinctions among component agencies. They need a central intake office - one clearly designated agency to which to take any type of complaint. The state's highest court and its agency should provide the expertise needed to determine where prima facie valid complaints should be directed.
Detecting unethical behavior should remain the highest priority of the judicial branch. The central intake agency should screen all complaints for allegations of conduct that violates ethics rules. It should forward those complaints to the disciplinary agency and to any other relevant agency, to insure misconduct is not overlooked.
Lawyer discipline should be directly and exclusively controlled by the highest court in the jurisdiction. See Recommendation 5. However, it may be appropriate for bar associations to administer other components of the system, such as arbitration, mediation, lawyer practice assistance, etc., under the court's authority. Therefore, the disciplinary agency should not be the administrative entity for other component agencies.
A fee dispute arbitration system that is mandatory for the lawyer eliminates the overwhelming advantage lawyers have over the majority of clients who are of modest means and have only the most rudimentary knowledge of the law. The experience of those states that provide mandatory fee arbitration10 demonstrates that these programs can work without being unduly burdensome on the profession. As is done in disciplinary matters, complaints that do not state legitimate grounds for dispute should be screened out. In cases of valid disputes, mandated fee adjustments can provide the incentive to reform for lawyers who do substandard work. Fee dispute arbitrators should therefore consider the competence and promptness of the lawyer's services in determining whether the fee was appropriate. In many cases involving substandard services, fee adjustments are sufficient to compensate injured clients. When a legitimate fee dispute arises and the lawyer enters arbitration in good faith, the client's opinion of both the lawyer and the profession can be improved. Fee arbitration decisions should follow applicable precedent. Decisions should be in writing and should be provided to both parties.
Providing an additional, voluntary arbitration mechanism for lawyers and clients can greatly benefit both the bar and clients. The ABA Standing Committee on Dispute Resolution reports that these programs have been tested successfully in settings such as bar associations, courts, prosecutors' offices, and neighborhood centers. Disputes to be considered could include contractual, non-disciplinary, and inadequate representation claims that today go unresolved and result in harm to the lawyer's reputation.
Mediation services are useful in preserving ongoing lawyer-client relationships when disputes arise or in matters where a lawyer has placed a lien on a client's file. When handled by a skilled mediator, the process can be simple and efficient, saving time and money for both parties. The lawyer's willingness to have a third party assist in resolving the dispute can demonstrate to the client that the lawyer's intention is to act in the client's best interest.
The Commission makes no recommendations about the structure or procedures of these alternative dispute resolution mechanisms. Several states have programs that could serve as models, and several ABA committees have expertise on this subject. The ABA Standing Committee on Dispute Resolution adopted the following resolution in June, 1990:
ATTORNEY/CLIENT DISPUTE RESOLUTION MECHANISM
RESOLVED, that the Standing Committee encourages experimentation with "alternative" dispute resolution techniques to resolve disputes between attorneys and clients, especially before, but also after, a claim is filed. It is urged that these techniques be viewed as integral and complementary components of the legal and justice systems in the United States. Dispute resolution techniques include mediation, arbitration, negotiation, and conciliation.
COMMENT
ADR in attorney/client disputes is one of the means that state and local bars could use to resolve certain types of disputes. Such disputes could include fee, contractual, non-disciplinary and inadequate representation claims. Moreover, if ADR techniques are used soon after such a claim is made to a bar association, lawyers who participate could be absolved from additional inquiry by the bar association if a settlement is reached. To trigger the ADR process, lawyers could be encouraged to include an ABA-recommended ADR clause in their client contracts for specific claims.
PILOT PROGRAM IDEA SUGGESTED
The ABA Standing Committee on Dispute Resolution would encourage and potentially co-sponsor several pilot projects to test the broad use of dispute resolution in attorney/client disputes.
The pilot projects could experiment with the Multi-Door approach to resolving such disputes. This approach has been tested successfully by the Committee in a variety of fora including the courts, prosecutors' offices, bar associations, and neighborhood centers. At the core is a sophisticated screening/intake process by well-trained personnel. If the complaint is not resolved at this step, then the trained personnel would assist the complainant in selecting the most appropriate dispute resolution processes. The second part of the Multi-Door approach is to develop thoughtful, varied, and structured dispute resolution processes.
In developing the varied dispute resolution processes, special attention should be paid to the issues that gave the existing fee arbitration programs difficulty. These issues include the following:
1. Program Structure
2. Lack of ADR Training
3. Lack of Attorney/Client Education
4. Lack of Program Use
5. User Dissatisfaction
6. Inaccessibility
In responding to the above issues, model rules and training models need to be developed accompanied by an assessment by an outside research group.
The experience of other common law countries is similar to the situation the Commission has discovered in the United States - the great majority of complaints against lawyers, while stating legitimate grounds for dispute, do not allege facts constituting misconduct. A research report prepared by the Law Society of England and Wales states:
A 1990 survey in England and Wales showed that 64% of all complainants to the Solicitors Complaints Bureau had complained about an inadequate professional service - 32% about poor service/incompetence, 18% about delay and 14% about their solicitor not communicating. Statistics from the Law Society of British Columbia also suggest that a significant number of complaints relate to aspects of inadequate professional service: 48% as opposed to 35% alleging professional misconduct.11
Most common law countries have already established agencies similar to those we recommend here. The Law Society's research report states:
[M]ost common law jurisdictions have introduced a system of resolving complaints of a less serious nature in a fast and simplified way. This has meant the introduction of conciliation schemes, verbal hearings, and specialist departments dealing with complaints about inadequate professional services.
. . . . .
In England and Wales, the Solicitors Complaints Bureau has introduced a special team of Conciliation Officers aimed at quickly investigating and resolving complaints where conciliation between solicitor and complaining client seems possible. The success of this innovation has led to plans to localize conciliation on a wider basis.
. . . . .
In Australia . . . the handling of complaints about incompetence has been totally separated from the handling of complaints about misconduct . . . .
. . . . .
In comparison to common law jurisdictions, USA and EEC Bar Associations have not shown the same degree of responsiveness to public concern about their complaints handling procedures . . . . The big number of complaints [citing a 1987 ABA discipline survey] and general underfunding and understaffing cause long delays which further reinforce public suspicion that complaints are not handled seriously.
Lawyer substance abuse counseling programs already exist in many jurisdictions. The Commission believes these programs should remain under the operation of those organizations that currently conduct them. These programs should be confidential so that lawyers are encouraged to voluntarily seek their assistance. However, referrals of lawyers to substance abuse counseling programs by the central intake office or the Disciplinary Counsel should be coordinated and monitored by the central intake office.
Recommendation 4
Lawyer Practice Assistance Committee
4.1 The Court should establish a Lawyer Practice Assistance Committee. At least one third of the members should be nonlawyers. The Lawyer Practice Assistance Committee should consider cases referred to it by the disciplinary counsel and the Court and should assist lawyers voluntarily seeking assistance. The Committee should provide guidance to the lawyer including, when appropriate: (a) review of the lawyer's office and case management practices and recommendations for improvement; and (b) review of the lawyer's substantive knowledge of the law and recommendations for further study.
4.2 In cases in which the lawyer has agreed with disciplinary counsel to submit to practice assistance, the Committee may require the lawyer to attend continuing legal education classes, to attend and successfully complete law school courses or office management courses, to participate in substance abuse recovery programs or in psychological counseling, or to take other actions necessary to improve the lawyer's fitness to practice law.
Comments
See chart on page 15. The Commission finds a great need for a formal method to provide guidance to lawyers with practice problems. A Lawyer Practice Assistance Committee will assist these lawyers by assessing the nature and extent of the problem. The Committee will create, in consultation with the lawyer, a plan to improve needed skills. The Committee may provide direct supervision and guidance or recommend law school classes, continuing legal education, business or office management classes, substance abuse counseling, or other available resources. The Committee may also recommend the creation of needed programs to bar associations or the state's highest court. The Committee will also assist lawyers whose disciplinary cases have been diverted. See Recommendation 9.
As Yale law professor Geoffrey Hazard stated:
But there remain many other kinds of cases in which a different inquiry and response is appropriate. Examples include conflict of interest, overcharging, incivility to opposing parties and lawyers, and inattention to clients. These are professional grievances but of a lesser degree.
. . . . .
These cases rarely justify a sanction of suspension, let alone disbarment. However, they fully justify an effort by neutral members of the bar to give guidance in interpretation of practice standards. Because lawyers today are not fully taught by apprenticeship, these standards are not transmitted through practice as they used to be. The traditional panel system has a real place as a medium for establishing practice standards.12
DIRECT AND EXCLUSIVE CONTROL OF LAWYER DISCIPLINE
Despite the many reforms made in the disciplinary process in the last twenty years, there is significant distrust of the fairness and impartiality of self-regulation. The Commission finds an important distinction between judicial regulation and self-regulation in the area of lawyer discipline. Neither the inherent powers doctrine nor the need for professional independence provides a rationale for disciplinary functions to be conducted by elected officers of bar associations.
The disciplinary system should be controlled and managed exclusively by the state's highest court and not by state or local bar associations. This is necessary for two primary reasons. First, the disciplinary process should be directed solely by the disciplinary policy of the Court and its appointees and not influenced by the internal politics of bar associations. Second, the disciplinary system should be free from even the appearance of conflicts of interest or impropriety. When elected bar officials control all or parts of the disciplinary process, these appearances are created, regardless of the actual fairness and impartiality of the system.
While the disciplinary system should be directly controlled by the state's highest court, bar associations can quite properly administer other component agencies of the expanded regulatory structure. Mandatory fee arbitration, voluntary arbitration and mediation, lawyer practice assistance, and other programs will require substantial resources. These programs are not affected by charges of conflict of interest or appearance of impropriety. It is entirely appropriate for the organized bar to cooperate with the Court in the administration of such programs. See Recommendation 3 and chart on page 15.
Recommendation 5
Independence of Disciplinary Officials
All jurisdictions should structure their lawyer disciplinary systems so that disciplinary officials are appointed by the highest court of the jurisdiction or by other disciplinary officials who are appointed by the Court. Disciplinary officials should possess sufficient independent authority to conduct the lawyer discipline function impartially:
5.1 Elected bar officials, their appointees and employees should provide only administrative and other services for the disciplinary system that support the operation of the system without impairing the independence of disciplinary officials.
5.2 Elected bar officials, their appointees and employees should have no investigative, prosecutorial, or adjudicative functions in the disciplinary process.
5.3 The budget for the office of disciplinary counsel should be formulated by disciplinary counsel. The budget for the statewide disciplinary board should be formulated by the board. Disciplinary budgets should be approved or modified directly by the Court or by an administrative agency of the Court. Disciplinary counsel and the disciplinary board should be accountable for the expenditure of funds only to the Court, except that bar associations may provide accounting and other financial services that do not impair the independence of disciplinary officials.
5.4 Disciplinary counsel and staff, disciplinary adjudicators and staff, and other disciplinary agency personnel should be absolutely immune from civil liability for all actions performed within the scope of their duties, consistent with ABA MRLDE 12A.
Comments
State and local bar officials provided the impetus for the development of ethical standards and disciplinary mechanisms. Bar officials have also volunteered years of dedicated service to the disciplinary function. These recommendations should in no way be taken as a derogation of that dedication and service. The recommendations are a recognition of basic principles of checks and balances and of separation of powers. A lawyer can appropriately serve the profession as an elected bar official and as an appointed disciplinary adjudicator - but not simultaneously.
Bar associations still can have a fundamental role to play in professional discipline, although not in the processing of cases. In states where no regulatory arm of the highest court exists, bar associations conduct the registration of lawyers and maintain registration records. They provide accounting and financial services, the physical plant and office equipment, ancillary staff services, and many other functions necessary to the operation of the disciplinary agency.
This recommendation modifies existing provisions of Model Rule of Lawyer Disciplinary Enforcement 2.
Several state bar associations have asked whether this recommendation would eliminate the justification for unified state bar associations under Keller v. State Bar of California, 496 U.S. 1, 110 S.Ct. 2228, 110 L.Ed.2d 1 (1990). This concern is unfounded. The Court in Keller clearly distinguishes those activities that do and do not justify the imposition of mandatory dues for unified state bar membership. The Court stated:
Here the compelled association and integrated bar is justified by the State's interest in regulating the legal profession and improving the quality of legal services. The State Bar may therefore constitutionally fund activities germane to those goals out of the mandatory dues of all members. It may not, however, in such manner fund activities of an ideological nature which fall outside of those areas of activity.
. . . . .
Thus, the guiding standard must be whether the challenged expenditures are necessarily or reasonably incurred for the purpose of regulating the legal profession or "improving the quality of the legal service available to the people of the State." Lathrop, 367 U.S., at 843, 81 S.Ct., at 1838 (plurality opinion).
Keller, 110 S.Ct. at 2236
The Court recognized that unified bar activities were on a continuum ranging from purely "ideological" to purely "regulating the legal profession and improving the quality of legal services." The Court also recognized that in some cases the distinction might be difficult to make. However, the Court identified several activities that are clearly one or the other:
But the extreme ends of the spectrum are clear: Compulsory dues may not be expended to endorse or advance a gun control or nuclear weapons freeze initiative; at the other end of the spectrum petitioners have no valid constitutional objection to their compulsory dues being spent for activities connected with disciplining members of the bar or proposing ethical codes for the profession.
Keller at 2237
The Commission recognizes that unified bars can appropriately perform non-prosecutorial and non-adjudicative functions that are essential to the disciplinary system. These are clearly "activities connected with disciplining members of the bar" under Keller.
It is important to recognize that the Court in Keller identified lawyer disciplinary functions and proposing ethical codes as examples of "the other end of the spectrum" to which "petitioners have no valid constitutional objection." These are however only examples. The Court clearly states the functional definition of regulatory activities that justify the existence of a unified bar:
Precisely where the line falls between those State Bar activities in which the officials and members of the Bar are acting essentially as professional advisors to those ultimately charged with the regulation of the legal profession, on the one hand, and those activities having political or ideological coloration which are not reasonably related to the advancement of such goals, on the other, will not always be easy to discern (emphasis added).
Keller at 2237
Thus, under Keller unified state bar activities other than lawyer discipline or ethics can justify the existence of the unified bar. These activities must: (1) "involve the State's interest in regulating the legal profession and improving the quality of legal services"; or (2) be "activities in which the officials and members of the Bar are acting essentially as professional advisors to those ultimately charged with the regulation of the legal profession."
Recommendations 3.1(b)-(g) establish new programs that can be conducted by unified state bar associations. These new programs are essential components of the expanded system of lawyer regulation recommended by the Commission. As such, they fall within the requirements of Keller.
Therefore, the recommendation in no way threatens the unified bar's existence under the rule of Keller. To the contrary, the expanded system of regulation proposed by the Commission expands the justification for the unified bar's existence under Keller.
Recommendation 6
Independence of Disciplinary Counsel
6.1 The Court alone should appoint and remove disciplinary counsel and should provide sufficient authority for prosecutorial independence and discretion. The Court should also promulgate rules providing that disciplinary counsel shall:
(a) have authority to employ and terminate staff, formulate a budget
and approve expenditures subject only to the authority of the Court;
(b) have authority, in cases involving allegations of minor incompetence, neglect, or
misconduct, to resolve a matter with the consent of the respondent by administrative
procedures established by the Court;
(c) have authority to appeal a decision of a hearing committee or the disciplinary board;
(d) be compensated sufficiently to attract competent counsel and retain experienced
counsel; and
(e) be prohibited from providing advisory ethics opinions, either orally or in writing.
6.2 The Court should adopt a rule providing that no disciplinary adjudicative official (including hearing committee members, disciplinary board members, or members of the Court) shall communicate ex parte with disciplinary counsel regarding an ongoing investigation or disciplinary matter, except about administrative matters or to report information alleging the misconduct of a lawyer.
Comments
This recommendation presumes the existence of a full-time disciplinary counsel with statewide jurisdiction. Disciplinary counsel should be insulated from political pressure from the public, members of the bar, and adjudicative officials of the disciplinary agency including members of the Court in order to provide effective and fair enforcement of the rules of professional conduct. Under the provisions of ABA MRLDE 4A, disciplinary counsel is appointed by the state discipline board. However, the Commission has received evidence that this arrangement can inhibit disciplinary counsel from appealing board decisions or otherwise disputing disciplinary policy set by the board. The National Organization of Bar Counsel has reported to the Commission several instances where control by state bar officials and state discipline board officials over disciplinary counsel's budgets, personnel, and decisions to prosecute have muzzled experienced disciplinary counsel and, in some instances, caused them to resign.
The Commission believes that, subject only to removal by the Court, disciplinary counsel should be completely independent. Consistent with the authority to dismiss complaints, disciplinary counsel should have authority to divert cases involving allegations of minor misconduct, minor incompetence, and minor neglect to administrative, non-disciplinary processes established by the Court. If the respondent lawyer fails to comply with the agreement diverting the cases to another process, the disciplinary counsel can resume disciplinary proceedings. See Recommendation 9.
Disciplinary counsel should be compensated sufficiently to attract competent new lawyers as well as to attract and retain experienced lawyers. The Commission believes it is important that agencies with several staff counsel should attempt to balance experienced with inexperienced lawyers. A proper balance supplies both continuity and fresh perspective to the agency.
Many disciplinary counsel provide advisory opinions to members of the bar as a service. This diverts resources away from the detection and adjudication of misconduct. Ethics opinions are more appropriately provided by a committee of the Court, bar associations, or by the state bar's general counsel.
To be fully independent, disciplinary counsel should not perform services of general counsel to the bar and should not use the title "bar counsel."
Legislative History of Recommendation 6
The ABA House of Delegates amended the Commission's original recommendation 6.1. The Commission recommended that disciplinary counsel's independence should be strengthened by permitting the state high court to remove disciplinary counsel only for cause, not at will. The Commission's original recommendation stated:
6.1 The Court alone should appoint and for cause remove disciplinary counsel and should provide sufficient authority for prosecutorial independence and discretion.
The House voted to delete the words "for cause" from the recommendation.
A second change to Recommendation 6 was proposed by the Commission itself. The Commission's original recommendation had included as 6.1(b) the recommendation that disciplinary counsel shall:
(b) have authority to determine after investigation whether probable cause exists to believe misconduct has been committed and to dismiss a case or file formal charges against respondent lawyers;
The Commission's commentary on 6.1(b) in the December 1991 Report to the House of Delegates stated:
Disciplinary counsel should have full prosecutorial discretion, like that of criminal prosecutors in many states, to determine probable cause and to file formal charges without seeking the approval of a hearing committee member. This is contrary to existing provisions of ABA MRLDE 11B(3). Some states in fact still engage in grand jury style procedures or use three member committees to determine probable cause. This tremendous expenditure of resources wastes time and money to make a decision that is clearly within the competence of any experienced disciplinary counsel. The right of complainants to appeal, as we recommend elsewhere, and of hearing committees to dismiss cases at hearing are more than adequate to check and balance prosecutorial discretion to file charges. If a state's highest court lacks confidence in the disciplinary counsel's competence to make decisions to charge, a new disciplinary counsel should be appointed rather than relying on a wasteful indictment procedure.
Prior to the debate in the House, the Commission withdrew this proposal due to strong opposition to prosecutorial independence to file formal charges. It still remains ABA policy that disciplinary counsel has authority to dismiss a case after investigation. See MRLDE 11B.
INCREASING PUBLIC CONFIDENCE IN THE DISCIPLINARY SYSTEM
The Commission is convinced that secrecy in discipline proceedings continues to be the greatest single source of public distrust of lawyer disciplinary systems. Because it engenders such distrust, secrecy does great harm to the reputation of the profession. The public's expectation of government and especially of judicial proceedings is that they will be open to the public, on the public record, and that the public and media will be able to freely comment on the proceedings. The public does not accept the profession's claims that lawyers' reputations are so fragile that they must be shielded from false complaints by special secret proceedings. The irony that lawyers are protected by secret proceedings while earning their livelihoods in an open system of justice is not lost on the public. On the contrary it is a source of great antipathy toward the profession.
Recommendation 7
Access to Disciplinary Information
All records of the lawyer disciplinary agency except the work product of disciplinary counsel should be available to the public after a determination has been made that probable cause exists to believe misconduct occurred, unless the complainant or respondent obtains a protective order from the highest court or its designee for specific testimony, documents or records. All proceedings except adjudicative deliberations should be public after a determination that probable cause exists to believe that misconduct occurred.
Comments
Prior to the Clark Report, in most jurisdictions all proceedings were secret until the state high court issued an order finding misconduct. In 1979 the ABA adopted a policy recommending that disciplinary proceedings should be public upon the filing of formal charges. See MRLDE 16. Recommendation 7, as amended by the House of Delegates above, reaffirms MRLDE 16. Today, proceedings are public upon the filing of formal charges in over half of the states. See Appendix A, problem 25 for a history of the evolution of MRLDE 16.
Both complainant and respondent may seek a protective order to seal records. The Commission has not specified grounds for issuing a protective order. That is best left to the highest courts and disciplinary agencies in each jurisdiction. In general, the Commission believes that a complainant should not be forced to choose between having confidences or secrets revealed or filing a complaint; a respondent should not have to chose between presenting a defense or protecting secrets and confidences of other clients. The respondent has no right to assert the complaining client's privilege if the complaining client does not assert it.
Disciplinary counsel should advise all complainants and respondents of the availability of protective orders. Any testimony, documents, or records, including the complainant's initial communication with the agency, for which a protective order is being sought should be confidential until the determination of the Court.
Legislative History of Recommendations 7 and 8
The Commission's original Recommendation 7 stated:
Recommendation 7
Fully Public Discipline Process
All records of the lawyer disciplinary agency except the work product of disciplinary counsel should be available to the public from the time of the complainant's initial communication with the agency, unless the complainant or respondent obtains a protective order from the highest court or its designee for specific testimony, documents or records. All proceedings except adjudicative deliberations should be public.
When the Commission brought this recommendation before the House of Delegates, it accepted as a friendly amendment an amendment from Florida. The first portion of that amendment changed the title of Recommendation 7 from "Fully Public Discipline Process" to "Access to Disciplinary Information." The second portion of that amendment deleted the words "from the time of the complainant's initial communication with the agency," and added the words "after a complaint has been dismissed or a determination made that probable cause exists to believe misconduct occurred," to the first sentence after "should be available to the public." That portion of the Florida amendment was amended by a New York delegate to delete the words "a complaint has been dismissed or." The remaining portion of the Florida amendment added the words "after a determination that probable cause exists to believe that misconduct occurred" to the last sentence.
The Commission's comments pertinent to the original recommendation were:
The arguments in favor of fully open disciplinary systems are supported by hard evidence the years of experience of those states that have them: Oregon, West Virginia and Florida. There is no evidence from those states of any harm to lawyers from making disciplinary records public. The arguments against open disciplinary systems are based on conjecture and emotion, not experience.
In West Virginia, the records of dismissed complaints have been available to the public and press since 1984. After an initial period of interest, the press simply stopped examining the records, presumably because there was such little public interest in the information. In Florida, these records have been available for over a year. Oregon has fifteen years' experience with an open disciplinary system. Records are public in Oregon from the time a complaint is received. The Commission has found no evidence of harm to lawyers from making these records public.
On the contrary, the Oregon bar proudly supports its open system. As the president of the Oregon State Bar testified to the Commission:
Oregon is unique in that complaints about lawyers are available for inspection from filing with the state bar. No other state permits access to these records at this stage. We believe the Oregon experience, while not entirely problem free, should be carefully considered by the ABA Commission on [Evaluation of] Disciplinary Enforcement. It is important that the public feel that disciplinary procedures are fair and open. Without access to complaint information the public is suspicious that lawyers are protecting their own. Access to complaint information permits citizens to evaluate that information to determine if they wish to consult with a lawyer who may have a complaint record with the Oregon Bar.
Our experience indicates that concerns that lawyers are unnecessarily damaged by an open records process have not been substantiated. If a complaint has been dismissed upon investigation, the lawyer has been vindicated. If the lawyer has been disciplined, a prospective client should be allowed to determine whether that action justifies not going to the lawyer for assistance. The public can be trusted to exercise good judgment in deciding how complaint information affects their decision to hire a particular lawyer. A closed system prevents the public from understanding the process, evaluating relevant information concerning the selection of a lawyer, and it engenders great suspicion concerning the process. Fifteen years' experience under our open system has shown it can work and that lawyers are not victimized in the process. It is also worthy to note that people making complaints to the state bar concerning the conduct of lawyers are absolutely immune under Oregon law from civil liability for such acts.
In Doe v. Supreme Court of Florida, 734 F.Supp 981 (S.D. Fla., 1990), the U.S. District Court held that Florida's complainant gag rule violated the First Amendment. The District Court said:
Imposing an enforced silence on all aspects of Bar disciplinary matters including investigations, probable cause hearings, and final dispositions is more likely, in our view, to engender resentment, suspicion, and contempt for Florida's Bar and its legal institutions than to promote integrity, confidence and respect. Moreover, the regulation misapprehends the character of American public opinion and the fairness of our people. As Justice Brandeis wrote in Whitney v. California, 274 U.S. 357, 375 - 76, 47 S.Ct. 641, 648, 74 L.Ed. 1095 (1927) (concurring):
Those who won our independence believed . . . that freedom to think as you will and to speak as you think are means indispensable to the discovery and spread of political truth; . . . that public discussion is a political duty; and that this should be a fundamental principle of American government. . . . Believing in the power of reason as applied through public discussion, they eschewed silence coerced by law the argument of force in its worst form (footnote omitted).
The Florida Supreme Court subsequently went beyond the Doe decision and promulgated a rule making all disciplinary records public upon the dismissal of the disciplinary case. See also Landmark Communications, Inc. v. Virginia, 435 U.S. 829, 98 S.Ct. 1535, 56 L.Ed.2d 1 (1978) (Virginia statute that subjects persons to criminal sanctions for divulging information regarding judicial misconduct proceedings violative of First Amendment); Baugh v. Judicial Inquiry and Review Comm'n, 907 F.2d 440 (4th Cir.1990) (confidentiality provision not a valid time and place restriction, thus violates First Amendment); Daily Gazette Co., Inc. v. Committee on Legal Ethics of the West Virginia State Bar, 326 S.E.2d 705 (W.Va., 1984) (use of private reprimands violates "open courts" provisions of state constitution).
The Commission has carefully considered the need for secrecy to protect innocent lawyers from false complaints. All members of the Commission understand that a lawyer's reputation is not only the basis for his or her livelihood, it is a cherished and integral part of the lawyer's life. The lawyer's reputation defines the value of the lawyer's service to clients and the community.
However, we find in Oregon, Florida and West Virginia ample experience to demonstrate that public proceedings or public records of dismissed complaints do no harm to innocent lawyers' reputations. On the contrary, secrecy does great harm to the reputation of the profession as a whole.
If public interest in a particular lawyer's case is high, the public will learn the essential allegations through other sources. The disciplinary agency is then left in the embarrassing position of "neither confirming nor denying" the existence of an investigation, further damaging the profession's credibility. Secrecy rules do nothing to protect individual lawyers in these situations. In matters of little public interest, there is obviously little possibility that actual damage to a lawyer's practice will occur. Under a fully public and open disciplinary system, lawyers accused of misconduct as well as complainants are free to comment on the proceedings. In many states, respondent lawyers may not publicly reply to information leaked to the media.
An open disciplinary system demonstrates its fairness to the public. Secret records and secret proceedings create public suspicion regardless of how fair the system actually is. A fully open disciplinary system will preclude the possibility of disciplinary officials committing improprieties such as destroying evidence, shredding files, or covering up complaints against influential lawyers. Disciplinary officials in Florida, West Virginia and Oregon state that public scrutiny of their disciplinary systems motivates staff to do better work.
Making disciplinary records and proceedings public will avoid further constitutional challenges, sparing the profession additional negative publicity. Finally, a fully open disciplinary system eliminates special procedures for sanctions such as "private reprimands" or "admonitions" that were formerly confidential.
Upon the House of Delegates' adoption of amendments to Commission Recommendation 7, the Commission withdrew its original Recommendation 8 because absolute immunity for complainants is already ABA policy. See MRLDE 12A. The Commission's original Recommendations 7 and 8 were new in recommending both absolute immunity and a fully open process. Original Recommendation 8 and comments were:
Recommendation 8
Complainant Immunity
8.1 Complainants should be absolutely immune from civil suit for all communications with the disciplinary agency and for all statements made within the disciplinary proceeding. Consideration should be given to making it a misdemeanor to knowingly file a false complaint with the disciplinary agency.
8.2 When informing the public about the existence and operations of the disciplinary agency the agency should emphasize and explain the nature of a complainant's absolute immunity.
Comments
For the lawyer disciplinary system to be effective, complainants must feel free to report possible lawyer misconduct. The system depends almost entirely on complaints from the public. Under the rules of many jurisdictions, communications to the agency that are not false or malicious are immune from civil suit. However, this qualified immunity is insufficient to protect potential complainants from intimidation because the accused lawyer may simply allege malice in order to maintain the suit. That a suit can be filed regardless of the good faith of the complainant is enough to intimidate many who have valid complaints. They are intimidated by the lawyer's great advantage in legal knowledge, access to the courts, and financial resources.
The Commission has carefully considered the argument that if all disciplinary proceedings and records are to be public then in order to protect their reputations, lawyers should be able to sue complainants who make malicious and untrue allegations. We conclude that the potential for harm to individual lawyers is greatly overstated. The public interest demands that complainants be free from the chilling effect of the threat of lawsuits when filing complaints.
We first note that absolute immunity from suit is granted for complaints and testimony in many types of judicial, licensing, and other governmental proceedings. Other professionals and, indeed, people from all walks of life depend on their reputations for their livelihood and value their reputations as much as do lawyers. Yet, their reputations may be subject to proceedings in which the complaint or testimony is absolutely immune. We see no legitimate justification for granting lawyers a special privilege in this regard.
On the contrary, the special privilege that lawyers do have is one of the reasons complainants should be absolutely immune from suit:
Regardless of what may have happened in some jurisdictions to the rights and privileges of attorneys, the right to practice before the court as an officer of the court still remains . . . . [T]he attorney alone has the right to set the judicial machinery in motion in behalf of another and to thus participate as an officer of the court in a judicial proceeding.
Ruckenbrod v. Mullins, 102 Utah 548, 133 P.2d 325,
144 A.L.R. 839 (1943)
Because only lawyers have this privilege, and the knowledge and skill to wield it, limitations should be placed on its exercise. Unfortunately, a small minority of lawyers attempt to intimidate clients who have valid complaints against them by threatening to sue if a complaint is filed. The profession and the courts should not allow any lawyer to use professional privilege to abuse a client. The only way these clients can be protected is by making complaints to the disciplinary agency absolutely immune.
The Commission is aware that some malicious and untrue complaints will be filed against lawyers and that the complainants' absolute immunity will prevent the lawyers from filing suit. The Commission believes this is a consequence lawyers should bear in exchange for the professional privileges they enjoy. For several reasons, however, we are confident that providing absolute immunity to complainants, even in a completely public disciplinary system, will not cause harm to lawyers' reputations.
First, the innocent lawyer is not totally defenseless against malicious and false complaints. Absolute immunity does not protect the complainant who commits perjury or who makes slanderous statements outside the proceedings. Second, the experience of all states has been that little attention is paid to discipline proceedings. Where there has been significant interest, it almost always arose from sources other than and prior to the disciplinary proceedings, such as related criminal investigations or civil litigation. Thus, actual damages are unlikely to result from the disciplinary proceedings themselves. Third, the fifteen year experience of Oregon, where all disciplinary records are public and complainants have absolute immunity, has been that the public understands that unproven allegations are simply that. Oregon lawyers have not had their careers ruined by crank complaints.
We conclude that the small potential for harm to the individual lawyer's reputation is a price the profession should pay to maintain public confidence in the profession as a whole. The public must be convinced that the profession is not only willing to consider but actively seeks out information about unethical lawyers and will protect those who attempt to present it.
Protecting complainants from intimidation does not require giving complainants carte blanche to file false complaints. An appropriate balancing of interests can be achieved by making the filing of a knowingly false claim a misdemeanor criminal offense. A disinterested public prosecutor, rather than the lawyer who is the subject of the contemplated complaint, is the appropriate person to determine whether to institute a proceeding against a complainant. A person filing a disciplinary complaint in good faith has no reason to feel intimidated by this arrangement. Statutes exist making it a misdemeanor to file false statements in many situations. See, e.g., Alabama Code 1975 § 36-25-25 (false ethics complaint against state official); AS 11.56.805 (Alaska) (false complaint to legislative ethics committee); A.R.S. § 28-1062 (Arizona) (false statement in traffic complaint); A.C.A § 12-10-315 (Arkansas) (false 911 call); Cal.Civ.Code § 47.5 (California) (false criminal complaint); C.G.S.A. Appendix § 53-168 (Connecticut) (false complaint to police); F.S.A. § 106.25 (false complaint to campaign financing commission); I.C. § 18-6711A (Idaho) (false 911 call); S.H.A. ch. 46 P 9-20 (Illinois) (false statement to judicial nominating commission); IC § 16-10-7-7 (Indiana) (false complaint to state board of health); LSA-R.S. 4:426 (Louisiana) (false complaint regarding registration of athletic agents); LSA-R.S. 18:1511.10 (Louisiana) (false complaint to campaign finance committee); Code 1957, Art. 27, § 150 (Maryland) (false statement to police officer); M.G.L.A. 151B § 8 (Massachusetts) (false complaint to anti-discrimination commission); M.C.L.A. 722.722 (Michigan) (false paternity complaint); N.R.S. 618.705 (Nevada) (false complaint under occupational safety and health statute); N.J.S.A. 2A:47A-1 (New Jersey) (false complaint against any licensed professional); NMSA 1978, § 60-7A-20 (New Mexico) (false complaints against business licensee); T.C.A. §2-10-108 (Tennessee) (false complaint to campaign financing commission); Code, § 19-23-26 (West Virginia) (false complaint to racing commission).
Following the withdrawal of Recommendation 8, all subsequent recommendations were renumbered.
Recommendation 8
Complainant's Rights
8.1 Complainants should receive notice of the status of disciplinary proceedings at all stages of the proceedings. In general, a complainant should receive, contemporaneously, the same notices and orders the respondent receives as well as copies of respondent's communications to the agency, except information that is subject to another client's privilege.
8.2 Complainants should be permitted a reasonable opportunity to rebut statements of the respondent before a complaint is summarily dismissed.
8.3 Complainants should be notified in writing when the complaint has been dismissed. The notice should include a concise recitation of the specific facts and reasoning upon which the decision to dismiss was made.
8.4 Disciplinary counsel should issue written guidelines for determining which cases will be dismissed for failure to allege facts that, if true, would constitute grounds for disciplinary action. These guidelines should be sent to complainants whose cases are dismissed.
8.5 Complainants should be notified of the date, time, and location of the hearing. Complainants should have the right to personally appear and testify at the hearing.
8.6 All jurisdictions should afford a right of review to complainants whose complaints are dismissed prior to a full hearing on the merits, consistent with ABA MRLDE 11B(3) and 31.
Comments
This recommendation adds significant new provisions to the Model Rules for Lawyer Disciplinary Enforcement. In almost every jurisdiction, complaints to the disciplinary agency are screened, and those that fail to allege facts constituting a violation of the ethics rules are dismissed by a summary procedure. Other complaints are investigated and dismissed upon a finding that there is insufficient evidence of a violation.
The Commission believes that summary procedures are appropriate for these matters. In general, disciplinary agencies give fair and adequate consideration to the complaints. This conclusion is supported by the fact that in those states that permit complainants to appeal, few of the dismissals reversed on review and sent back for further investigation later result in the imposition of discipline.
Nevertheless, complainants often feel their complaints have not received fair consideration by the agency. The Commission has identified several factors that contribute to this result.
In the vast majority of these matters, the only communication between the complainant and the agency is by mail. Complainants file a complaint and weeks or months later receive a dismissal letter. The complainant has no way of judging how much consideration the complaint has received. Even in those cases in which charges are filed and further proceedings held, complainants are not routinely informed of the status or development of the case.
Complainants in many jurisdictions are notified of the dismissal by a form letter that states only that the complaint failed to allege a violation of the ethics rules or that sufficient evidence of a violation was not found. The complainant is not informed of the facts considered or the reasoning used to arrive at a decision to dismiss. Of all complaints summarily dismissed, a significant portion allege facts that, if true, would not constitute a violation of the rules of professional conduct, but would be unprofessional behavior that should be addressed. The distinction between unethical conduct and other bad conduct is meaningless to most complainants.
In most jurisdictions, the complainant has no regulatory body other than the disciplinary agency to which to complain, and in most jurisdictions the complainant has no right to appeal summary dismissal of the complaint.
Given these facts, it is understandable that complainants are dissatisfied when their complaints are summarily dismissed or when they are not kept informed of the status of their complaints.
Providing complainants a concise explanation of the facts and reasons for the summary dismissal of the complaint will require little additional effort if those facts and reasons are articulated and recorded at the time the decision is made. The National Organization of Bar Counsel recommends that written guidelines should be issued for dismissing cases that fail to allege misconduct. Sending a copy of these guidelines to complainants when their complaints are dismissed will help them understand the reasons for dismissal.
Most people expect serious consideration of their complaint and the right to a review when dealing with their government. When these basic expectations are not met, the proceeding is likely to be perceived as unfair, regardless of the reality.
We recognize that creating a process for complainant appeals will require additional resources. We note that twenty-one of forty-six states surveyed by the Commission provide complainants a right to appeal and have found sufficient resources to hear these appeals. We believe that the failure of other jurisdictions to provide a right to appeal is responsible for a great deal of public dissatisfaction with the disciplinary system. The time and money required to provide this right will be well spent.
Providing complainants a right of appeal is more than a mere public relations device, however. It is true that in jurisdictions providing this right, few of the dismissals appealed and remanded for further investigation ultimately result in a finding of misconduct. Nevertheless, a complainant appeal procedure does provide a useful check on the effectiveness of disciplinary counsel's initial screening of complaints and on the quality of investigations. The Second Annual Report of the California Complainants' Grievance Panel13 (May 1989) cites several instances where complainant appeals revealed deficiencies in the screening and investigation of complaints:
The Panel's review of both audit cases and cases considered as a result of requests for further investigation leads it to believe that inadequacies exist in the way complaints against attorneys are evaluated by the State Bar discipline system which result in the prosecution of too few discipline cases.
. . . . .
The Panel's review of Inquiries also suggests that the Intake process is oriented toward the eventual prosecution of only the most serious violations of the Rules of Professional Conduct and the State Bar Act. To anal