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?