THE VIRGINIAN-PILOT
Copyright (c) 1995, Landmark Communications, Inc.
DATE: Tuesday, December 12, 1995 TAG: 9512120259
SECTION: FRONT PAGE: A1 EDITION: FINAL
SOURCE: BY MARC DAVIS, STAFF WRITER
DATELINE: RICHMOND LENGTH: Long : 110 lines
The Virginia State Bar does a pretty good job of handling ethical complaints against lawyers but should open up its disciplinary system and make other changes to improve public trust, fairness and accountability, says a state audit released Monday.
``The closed nature of the system engenders public suspicion,'' concludes a report from the Joint Legislative Audit and Review Commission. ``Public confidence could be improved by further opening the disciplinary system.''
The bar's handling of complaints against lawyers is virtually closed to the public. All complaints about lawyers are kept confidential, and only the most serious disciplinary hearings, involving disbarments and suspensions, are open.
Bar president Michael Smith, a Richmond lawyer, agreed that the system is too closed but said he is not sure how much more open it should be.
``That discussion comes up all the time,'' Smith said. ``I personally feel the process should be opened up some,'' and recommendations to that effect are in the works. He said he could not be more specific.
The bar received 2,599 complaints against lawyers in fiscal year 1994 and took disciplinary action, ranging from private reprimands to disbarment, against 189.
The audit report, released Monday at a public commission hearing, focused largely on financial questions. It found that the bar charges lawyers too much for dues and keeps too much cash on hand for emergencies.
Auditors also found that the bar spends some of its money on inappropriate things, such as alcoholic beverages for social meetings, travel expenses for officers' spouses and a staff holiday party.
The auditors recommended that the bar lower its dues and reserves and focus more on its central mission of lawyer discipline.
The State Bar is an administrative arm of the state Supreme Court. Its main job is to investigate ethical complaints against lawyers and impose sanctions where necessary. All active lawyers must be members. There are 20,000.
In 1992, the bar's reputation was stained with the scandal of Newport News lawyer David Murray, who stole about $42 million in client funds, then killed himself when he was caught. Critics said the bar did not do enough to prevent Murray's misdeeds. The bar said it was powerless to act, in part because it did not know what Murray was doing.
As a result of the Murray scandal, the bar has strengthened its disciplinary system and adopted rules making it easier to investigate lawyers suspected of improprieties. In the process, the bar raised dues twice since 1991, to $185 a year.
Last year, after some lawyers complained about another round of dues increases and unnecessary spending by the bar, the General Assembly froze the bar's dues and spending, then ordered the audit.
At Monday's hearing, Smith jokingly referred to the freeze, in remarks to lawmakers, as ``a haircut.''
Sen. Hunter B. Andrews of Newport News shot back: ``A scalping, more than a haircut.''
``Yes, sir,'' Smith replied.
In response to the audit, Smith acknowledged that the bar's dues and reserves are too high and said both will be lowered. He also told lawmakers he agreed with most of the audit's recommendations.
``I don't agree with all of it, but they've done a cracking good job,'' Smith said.
Very little of the hearing's public discussion was devoted to the disciplinary system, but the audit report discusses it in some detail.
The report states: ``The primary mission of the (bar) is to protect the public from lawyer misconduct. The VSB disciplinary system works relatively well by disciplining lawyers who have acted unethically.''
But, the audit adds, ``Steps need to be taken to improve public protection, build public trust, increase accountability, improve fairness and improve efficiency.''
Among other things, auditors recommended that the process be more open, but they do not elaborate. After the hearing, Smith said that some form of confidentiality is essential so that good lawyers are not tarred by unjustified complaints.
The audit also found that ``accused attorneys are treated fairly, in general,'' but accused lawyers and people making complaints receive very little information while a complaint is pending.
Because the process is closed, auditors found, clients who file complaints often have no idea why their complaints are dismissed. Also, the audit found, clients who complain ``often are not given the opportunity to rebut the accused attorney's written response.''
These findings are similar to those of a survey this summer that found half of all people who filed complaints with the State Bar rated the handling of their cases as ``poor'' or ``very poor.''
The audit recommended that people filing bar complaints be granted absolute immunity, so they cannot be sued for making false accusations if their complaints fail. Smith asked that exceptions be made for complaints filed ``maliciously.''
Afterward, Smith said a detailed response to the Supreme Court would be ready by Feb. 15. ILLUSTRATION: THE FINDINGS
The Virginia State Bar's disciplinary system works relatively well
by disciplining lawyers who have acted unethically.
Public confidence could be improved by further opening the
disciplinary system.
Lawyers' dues are too high.
The bar has too much cash in reserve - $2.5 million, which is half
of its annual operating expenses.
Some non-regulatory activities - like the president's art
collection, sponsoring legal seminars in England and an annual
lawyers exposition - have tenuous links to the bar's central
mission.
Source: Joint Legislative Audit and Review Commission
by CNB