Stirring the pot on lawyer discipline

Following my item Tuesday, More than 6,200 lawyers sanctioned in 2003, survey says, both Norm Pattis and Carolyn Elefant posted thoughtful comments on the report, which Lisa Stone nicely summarized. Much as I respect Norm’s thoughts on many issues, I can’t help but disagree with him on this. And while I agree with Carolyn, I think she doesn’t go far enough.

Saying that half the complaints against lawyers were dismissed “as so totally lacking in merit that they did not pass the straight-face test,” Norm suggests: “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.”

The report did not say the dismissed claims failed to pass “the straight-face test.” They were dismissed because they did not state facts that would constitute professional misconduct or because the agency lacked jurisdiction. I suspect that most individuals who file complaints against lawyers are not themselves schooled in the intricacies of the law. They may have legitimate beefs, but not know how to pursue them. When someone believes they have been poorly represented or even ripped off by a lawyer, they should have somewhere they can turn without fear of having even more lawyers come after them. They should not be required to have a sophisticated grasp of the rules of legal ethics and standards of professional practice — and they most certainly should not be required to hire or consult with another lawyer before filing. Imposing sanctions on non-lawyers who file complaints against their lawyers would ultimately discourage meritorious complaints and allow bad lawyers to go undetected.

I wholeheartedly agree with Carolyn’s proposal to make these complaints available for others to read. She says make them available for review by other attorneys. I say throw them open for anyone to read. We condemn secrecy in government. We condemn secrecy in corporate affairs. We condemn secrecy in litigation. Why do we condone it for ourselves?

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  • Bob, You put the argument very well for not sanctioning “frivolous” client complaints (unless, of course, there is a clear case of repeated, intentional abuse by a particular person, I would add).

    On the second point, I have some concerns, but no definitive answers yet. Despite my frequent calls for making the lawyer discipline process more open, I wonder about the effects of having every, unfiltered complaint easily available to all. For one thing, forcing the public revelation of private details might deter the client from complaining. Making a complaint public that in fact does not trigger an investigation, gives the client nothing in exchange for giving up his or her privacy.

    There should be an ombudsman making sure the watchdog is not rejecting valid complaints. And, there should be a procedure that makes sure the client is informed in a useful way, about how to remedy a complaint that needs more details to be colorable. At that point, complaints that reach the investigation stage might be appropriately available for public inspection.

    Frankly, I’m also a bit worried about how some lawyers might use complaints against other lawyers.

    As with court records in Domestic Relations cases, I am not yet convinced that the mere ability to make every file available online is a good enough reason to do so.

  • Anonymous

    Attorney discipline seems pretty weak to me. For example,

    It seems odd that you could make so many technical and ethical violations and still only get a public reprimand?

    Would you want to use Shawn Rice as counsel on anything given these actions? Does a public reprimand make sense?