A Tidal Wave of Crap

Pick on a doctor, and the AMA jumps ugly. Speak evil of an insurer, and get lectured about tort reform by the insurance lobby.

What happens when you speak ill of a lawyer to a lawyer? Most often, eyes roll, tongues cluck and then the slow mournful shake of the world-weary head: "I know, I know," we say, in apology for our accused peer. No defense. Just a mea culpa.

Why don't we defend ourselves? Is it good public relations not just to fall on our swords, but to commit ritual harikari?

Consider a recent report by the American Bar Association. It reports that in 2003, there were almost 120,000 complaints of lawyer misconduct to disciplinary agencies. About 6,000 lawyers were disciplined. Put another way, about five percent of complaints led to discipline; ninety-five percent did not.

That's good news.

But here's news that won't surprise those with a decade or more at the bar: Slightly more than 50 percent of complaints were dismissed summarily as so totally lacking in merit that they did not pass the straight-face test.

Why not a call for sanctions against those who file frivilous complaints? In almost every other context, a litigant who brings a frivilous claim is liable for vexatious litigation claims. I see no compelling reason to give clients a free pass.

Making a complaint should be considered serious business.  We don't take the process seriously by inviting every client with a grudge to file grievances without consequence.

The bar, we say, has a duty to the public. We fulfill it in part by serving clients pro bono publico. I say in exchange we demand the public be accountable when a person files a complaint so totally lacking in substance as to merit only scorn.

Comments

[Aaron]

This reminds me of the recent call in England for prosecution of kids who make false abuse claims against teachers. The purpose of providing some level of immunity, of course, is to avoid deterring kids from reporting actual incidents of abuse. While most ethics complaints come from grown-ups, the same rationale applies.

It seems that a growing number of attorneys will tell a client to file a grievance in order to extort a refund of attorney fees from prior counsel, often to be paid to the new attorney in relation to subsequent legal services. (One lawyer I heard about found himself in the unfortunate position of giving in to the blackmail, and then being told that his attempt to have the grievance dismissed on the basis of the refund was of itself an ethical lapse.)

One way or another, I don't particularly care for "absolute immunity" - there should be consequences for somebody who knowingly files a false or frivolous grievance.

[David Giacalone]

Norm, You're over-reacting:

1] It is unreasonable to ask the vast majority of clients to understand what constitutes a valid claim. The first stage of complaint review is meant to be a filtering process, which helps the complainant understand the meaning of the rules as applied to the conduct in question.

2] Thanks to "self-regulation," the deck is stacked against clients -- as HALT points out: "in 50 states (including the District of Columbia), lawyers make up at least two-thirds of the committee adjudicating attorney discipline complaint" and in 12 states every member of the panels is an attorney.

3] E.g. How would a client know what constitutes a reasonable fee? If a client tried to discover the elements of a "reasonable" contingency fee, he or she would be quite confused to find that no grievance committee in the nation will apply the criteria set forth in ABA Formal Ethics Opinion 94-389 (described here). Instead, every complaint concerning a fee set at the local "standard" percentage rate (which is the maximum permitted in most jurisdictions) would be rejected without investigation.

4] Having seen close-up the refusal of NYS grievance committees to take action against Andrew Capoccia's "debt reduction services", the decision not to proceed to the investigatory stage does not appear to be based on a frivolousness test.

Until lawyer regulation is far more effective -- and, as is happening in Britain -- is no longer lawyer-controlled, the statistics suggest laxity on the part of the watchdogs far more than irresponsibility on the part of clients.

[Norm Pattis]

I don't think I am over-reacting; I am reacting to my own experience and that of many others with street-level practices. There are a lot of borderline mentally ill people out there who file grievances over just about anything. I have never had probable cause found on a grievance, but I have responded to plenty of them, so many, in fact, that I no longer take cases for many people I would long ago have represented. Too much trouble. Those people often go unrepresented. Perhaps Connecticut is unique, but many lawyers sigh over abuse of the grievance process here, and, I suspect, elsewhere.

[David Giacalone]

Norm, You certainly have the right to vent and hyper-vent, but I don't think hyperbole can solve the problem. There already are procedures for treating complainants who knowingly lie. Just what is your solution for over-filing by "borderline mentally ill persons"?

I have never seen a jurisdiction that truly encourages the filing of grievances. I just located and read the brochure Attorney Grievance Procedures in Connecticut, and it seems remarkably balanced and well done. It lists ten reasons for dismissing the complaint without an investigation, only one of which is the failure to state facts that could be the basis for a claim. Many of the others do not really go to the merits or suggest frivolousness. It also appears that the lawyer complained about isn't even notified until this first review of the complaint is completed.

Any chance you have a constructive proposal to make the system more fair to lawyers, while preserving the client's right to be heard?

[Norm Pattis]

Connecticut's system has improved a great deal, and many are dismissed without a hearing.
I do not have a suggestion, other than to avoid difficult clients, which is what I am doing. I feel extremely uneasy about that as the difficult are most in need of representation. Perhaps a trust fund that permits an attorney to recover fees after wasting hours responding to a complaint that is frivilous but passes prima facie review.

[Dale Gribble]

Lawyer discipline agencies can make their records look good by going after lawyers who dont smell right and exhibit "bad behavior" the Neb. supreme court suspended an attorney who in a pleading compared another attorney to Hitler. I know from personal experience and by paying close attention to disciplin cases that reach the Nebraska Supreme Court, you will be in good shape if you happen to be a member of their "Order of the Kneepads(sic)"

[Deoxy]

You are complaining that 50% of complaints are frivolous? By the measure of even staunch anti-med-mal-reformers (all of the lawyers), doctors are supposed to be very happy with an 83% frivlous LAWSUIT (not just complaint) rate. "Discipline for thee, but not for me" is what it sounds like.

But what REALLY puts the lie to what you say is this (from the survey):

"Complaints warranting formal charges: 79,150.
Number of lawyers against whom complaints warranting formal charges that were actually brought during the year: 2,912."

In other words, they came to the conclusion that nearly 80,000 complaints were legitimate and deserved chargs, and they acted on less than 3,000 of them.

Gee, THAT inspires confidence in the "self-discipline" of the legal profession!

What a joke. People hate lawyers because lawyers DON'T self-police... if they did, Overlawyered (among other sites) would be out of business. Instead, they chronicle action after ridiculous action, often by the same bad actors that are never dealt with.

The evidence that med-mal system is a lottery, where good doctors are just as likely as bad to be sued, is strong, and yet lawyers generally fight against reform, saying that doctors don't "self-discipline". The evidence that lawyers don't self-discipline is in front of evryone's eyes, yet you make complaints such as this.

This post in itself is, thus, a good reason why so many people hate lawyers.

[Deoxy]

Oops, I made an error.

The "under 3,000" was lawyers (some of whom obviously got more than one charges).

The actual number is here:

"Cases in which private sanctions were imposed: 2,495.
Cases in which public sanctions were imposed: 3,725. "

So, it was just over 6,000. Not that that helps (wow, 7.5% instead of 3.5%), just being honest.