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The discipline of lawyers has been a subject of concern and discussion for many years among lawyers and non-lawyers alike.
"A grievance system that moves in secret, then winds up disciplining a minuscule percent of those whose conduct is complained about, can be neither effective nor credible." Here’s what must be done.
If your lawyer mishandles your case, charges an exorbitant fee or steals your money, what can you do about it? Short of suing for malpractice, you must take your complaint to a grievance committee made up of other lawyers. What are your chances of getting a fair hearing? According to available statistics, they are so slim that you would be wasting your time. For example:
Figures like these are causing a growing demand that the bar’s grievance committee system of disciplining itself be abolished and handed over to outside regulators. Lawyers, however, say this is unnecessary because they are now cleaning up the mess them-selves. Are they?
The article goes on to describe the results of the Silverman Report, a report of a panel established by the Bar of the City of New York to study its grievance system. The article noted that almost all complaints the committee received came from clients, yet when they were handled, the committees had a "distinct tendency" to take the word of the lawyer over that of the client. Moreover, most of the complaints were dismissed without any investigation at all, other than perhaps a phone call to the accused lawyer. It further addressed concerns about the secrecy of the discipline process and the fact that "almost everything the committee did was kept secret from the press, the public and the rest of the bar." It then cited Leon Silverman, the Wall Street attorney chairing the commission, as follows:
"It is little wonder that some attorneys do not feel impelled to be responsible to the disciplinary system. A system that moves in secret, then winds up disciplining a minuscule percent of those whose conduct is complained about, can neither be effective nor credible."
The article discussed the Clark Report, a national report on lawyer discipline. That report found problems similar to those identified by the Silverman panel to exist on a national scale. In particular, the Committee expressed concern about the use of volunteer lawyers to run the system; the absence of any "outsiders" involved in the process; the fact that, in small communities, where all lawyers are on a first name basis, effective discipline was "virtually impossible; that no records of discipline in other jurisdictions were available, so the few disbarred lawyers could set up shop in another jurisdiction without being discovered; and that lawyers and judges were not making complaints against other lawyers despite their awareness of violations. After urging that laypeople be included in the lawyer disciplinary system, the article concluded:
Of course, the mere injection of outsiders won’t do the trick by itself. It is also essential to speed up the profession’s turtle-slow efforts to reform the grievance-hearing process. The three most urgently needed reforms are to wipe out unnecessary secrecy, put more laymen on the hearing panel and provide the system with enough money for professional investigating and prosecuting staffs.
There’s nothing sacred about the legal profession’s private system of justice. If lawyers don’t try to make it work, there are others who can, and in all probability will.
Although things have changed for the better in the more than fifteen years since this article was written, many of the same concerns exist. Most jurisdictions have developed professional staffs to administer their discipline systems, although most still use volunteer attorneys as well. Most states have added lay members to their disciplinary panels, and a national clearinghouse to share information among states about disciplined lawyers is in operation. Concern still exists regarding the degree of secrecy in the system, although some states have made changes in this area as well. The problem of attorneys and judges not making complaints about other attorneys still exists, and, although the incidence of discipline has increased, there are still concerns regarding the effectiveness of the disciplinary system as a source of control over lawyer conduct. It is likely that these issues will continue to exist and be debated well into the future.
Finally, the overall issue of lawyer self-regulation continues to be the subject of debate. As many begin to view law as more of a business than a profession, the question whether the degree of self-regulation now afforded the legal profession is appropriate takes on increasing focus. These issues are not likely to go away in the foreseeable future.
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