THE VIRGINIAN-PILOT
Copyright (c) 1995, Landmark Communications, Inc.
DATE: Monday, July 3, 1995 TAG: 9507030034
SECTION: LOCAL PAGE: B1 EDITION: FINAL
SOURCE: BY MARC DAVIS, STAFF WRITER
LENGTH: Long : 126 lines
Mom was furious. She was paying for her son's criminal defense, but the lawyer wasn't following her instructions or keeping in touch. So Mom struck back. She filed a complaint with the Virginia State Bar.
The result didn't make her any happier. The bar tossed out the complaint without investigation, saying Mom wasn't the client, her son was. Anyway, the bar ruled, this was not a claim of misconduct.
Now Mom is a statistic: In a new survey, half the people who filed complaints against lawyers with the State Bar rated the agency's handling of their complaints as ``poor'' or ``very poor.''
The survey, conducted by a graduate student at the College of William and Mary, was finished in April and presented at a bar meeting in June.
It comes at a critical time for the bar, which is being audited by the state's Joint Legislative Audit and Review Commission. That audit will be completed in December, just in time for the General Assembly, which may re-examine the bar's funding and staffing.
Until then, the bar will debate the meaning of the William and Mary survey. It presents the classic conundrum: If 53 percent of those surveyed said they were unhappy with the bar's overall handling of their complaints, and 47 percent were happy, is the glass half-empty or half-full?
The bar receives more than 2,000 complaints against lawyers a year, ranging from failure to return phone calls to accusations of fraud. Most are for general neglect or incompetence.
The William and Mary survey is based on 101 conversations with people whose complaints were closed by the bar from July 1993 to November 1994.
Paula L. Hannaford, the graduate student who conducted the study, believes the numbers reflect favorably on the bar.
``Personally, I was amazed just how high the satisfaction level was,'' Hannaford said. But then, she added, she had expected nearly all the complainants to be unhappy.
Michael L. Rigsby, head of the bar's disciplinary system, agreed.
``The wags all said, `Well, we can predict what the results are going to be: We don't like lawyers and we don't like the disciplinary system,' '' Rigsby said.
At the other extreme is James R. McKenry, a Norfolk lawyer who is on the bar's Committee on Lawyer Discipline. He is skeptical of the survey's results, but if the numbers are accurate, he said, they are not good.
``I'd say they're bad numbers,'' McKenry said. ``That may be optimistic, that may be naive, but I'd like to think more people should be happy with the system.''
At the heart of the debate is an issue that Hannaford addressed in her survey: Why do people file bar complaints anyway? What do they expect the bar to do?
Some use the bar as a proverbial 2-by-4, to whack their lawyers on the head and get their attention. For those people, if the lawyer returns a phone call, explains a bill or simply apologizes, they are happy and the system works, Hannaford found.
But among the unhappy complainants - like Mom, in the case above - the biggest gripe is that the bar doesn't investigate complaints thoroughly.
Complainants get that impression, Hannaford wrote, because bar proceedings are secret. Complaints are confidential. They cannot be released unless there is a public disciplinary action, such as suspension, disbarment or public reprimand.
Even complainants themselves are not privy to investigations or district hearings. Only a handful ever get to full public hearings in Richmond.
As a result, people who file complaints often wait months to find out what's happening, and then discover the case was dismissed.
``It came through very clearly,'' Hannaford said. ``They said, `We don't want to be in the dark. We want to be included. We don't think you're hearing what we're saying.' ''
For example, Hannaford wrote, many complainants think they will get a chance to fully present their cases. Instead, they fill out a brief form. Many are surprised that investigators don't ask for more detailed information.
Then they are dismayed to find that bar staffers ``appeared to accept at face value'' lawyers' replies to complaints, without trying to corroborate either side's statements.
This disappointment is especially true for professionals such as engineers, contractors and Realtors, who expect bar investigations to be like those conducted by their own regulatory boards, Hannaford found.
Many complaints against lawyers - like Mom's - are dismissed out of hand because the bar does not investigate problems of incompetence or poor communication, only ethical misbehavior.
``It is not a violation of the disciplinary rules to be an idiot or a jerk,'' Hannaford said. The bar needs to do a better job of explaining this to laymen, she concluded.
The bar also has to work harder to include complainants in the process, Hannaford wrote. She recommended mediation or informal fact-gathering sessions, where lawyers and complainants meet face-to-face.
Rigsby said he will present just such a plan to a bar committee by September. He will not, however, recommend a completely open system like the one in Oregon, where all bar complaints are public.
``There's a solid consumer appeal to be able to call in and say, `Has Michael Rigsby had any complaints in the past?' '' Rigsby said. ``Personally, I see no reason why not to open the process further. I just don't know where to draw the line.''
Finally, Hannaford recommends a major change in how the bar handles complaints against prominent lawyers - state legislators and commonwealth's attorneys, for example.
In those cases, Hannaford wrote, complainants' dissatisfaction ``attained levels of monumental intensity.''
``To the extent that the respondents in many of those cases could reasonably be considered `politically powerful' individuals, complainants' fears of institutional bias do not appear unfounded,'' she wrote. ``If, in fact, the (bar) took affirmative steps to avoid the appearance of bias, the complainants were unaware of them.''
Those cases should be sent to an independent agency for review, she recommended.
Robert B. Altizer, a Tazewell lawyer who is president-elect of the state bar, said he was satisfied with Hannaford's survey. ``There was really nothing in the report that surprised me,'' he said.
``Our responsibility is to the public,'' Altizer said. ``We want to make sure complaints are being investigated thoroughly and prosecuted where they should be prosecuted.''
Said Rigsby: ``We have a fine piece of machinery to handle complaints. We just need to improve it.'' ILLUSTRATION: Staff color graphic
State Bar Survey
For copy of graphic, see microfilm.
KEYWORDS: LAWYER ATTORNEY SURVEY POLL COLLEGE OF WILLIAM AND MARY
VIRGINIA STATE BAR ASSOCIATION by CNB