ROANOKE TIMES
Copyright (c) 1996, Roanoke Times
DATE: Tuesday, January 2, 1996 TAG: 9601020179
SECTION: VIRGINIA PAGE: C-4 EDITION: NEW RIVER VALLEY
DATELINE: RICHMOND
SOURCE: Associated Press
MEMO: ***CORRECTION***
Published correction ran on January 3, 1995.
The Virginia State Bar, not a state agency, regulates lawyers. An
Associated Press story in Tuesday's paper was incorrect on that point.
Complaints about lawyers should be made public, the state agency that regulates lawyers concluded after an audit of the Virginia State Bar.
Overall, the system works pretty well, state auditors said last month. But they said closed proceedings and records make people suspicious, regardless of how fair the system is.
``As long as lawyers continue to have responsibility for policing themselves, it is important to further open the process in order to demonstrate the fairness of the system and reduce public suspicion of it,'' the report said.
In Virginia, all complaints to the State Bar are confidential. Only the most serious cases - potential disbarments and suspensions - are made public, and then only when they reach the state hearing board in Richmond.
Some less-serious cases become public if they result in public reprimands by local committees. Otherwise, dismissed complaints and those resulting in private reprimands stay confidential.
That means that anyone who calls the State Bar in Richmond to check on a lawyer's history will be told only if the lawyer has a public disciplinary record.
Many lawyers say secrecy is necessary to protect them from frivolous complaints, often by disgruntled clients or adversaries. About 75 percent of complaints in Norfolk and Virginia Beach are frivolous, said Stephen G. Test, a Virginia Beach lawyer who is chairman of the committee that investigates Norfolk and Virginia Beach complaints.
Last month's state recommendation was nothing new.
Four years ago, the American Bar Association told attorneys they should open the process of investigating complaints against lawyers, or risk ticking off a suspicious public.
``What does the public think of hearings held behind closed doors?'' an ABA panel wrote in 1991. ``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.''
The panel recommended opening all records of complaints against lawyers and nearly all hearings to investigate those complaints.
A state survey last year showed that half of all people who complained about a lawyer to the Virginia bar were unhappy with how their complaints were handled.
``If we don't do a better job of it, the state legislature is going to have someone else do it for us,'' Test said.
Now, Virginia lawyers are trying to decide just how publicly do lawyers want to air complaints against their own.
``There's a lot of division among bar members about whether the process should be open or closed,'' said Susan E. Massart, chief author of the state audit report.
This summer, state auditors surveyed 337 Virginia lawyers. Forty-three percent said the bar's disciplinary system ``adequately protects the public.'' Only 16 percent disagreed.
But the lawyers were more evenly split when asked if all bar disciplinary records should be open to the public: 48 percent said no, 38 percent said yes.
They split again when asked if all disciplinary hearings should be open: 55 percent said no, 29 percent said yes.
Virginia auditors recommend that the disciplinary system be thrown open after a subcommittee finds a complaint is probably true, but before a full hearing on the evidence.
States with open systems report few problems.
In Oregon, for example, the system has been open for 19 years. Every complaint against a lawyer and every hearing is open to public scrutiny. In effect, the bar is a better business bureau for lawyers, where ordinary folk can call and see if a lawyer has complaints against him. The bar gets about 250 of those calls a month.
Yet ``I can count on one or two hands the number of lawyers who have complained to me about open records,'' Jeffrey Sapiro, the Oregon bar's disciplinary counsel, told an American Bar Association magazine this spring.
Florida has a relatively open system. Since 1990, all cases have been opened after a finding to dismiss the complaint or file charges. West Virginia has a similar system.
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