THE VIRGINIAN-PILOT
Copyright (c) 1996, Landmark Communications, Inc.
DATE: Monday, January 1, 1996 TAG: 9601010039
SECTION: LOCAL PAGE: B1 EDITION: FINAL
SOURCE: BY MARC DAVIS, STAFF WRITER
LENGTH: Long : 174 lines
The news struck the legal profession like lightning, and it came from a most unlikely source: the American Bar Association.
The ABA had a warning for American lawyers: Don't hide your dirty laundry. Open up 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 blue-ribbon 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 strong medicine: Open all records of complaints against lawyers. Open nearly all hearings to investigate those complaints.
In December, an audit of the Virginia State Bar, the state agency that regulates Virginia lawyers, came to virtually the same conclusion. Open up, auditors said, and let the public in.
``Despite the need to build trust and confidence, there are several aspects of the current system that may instead . . . raise suspicions that the system is designed to protect lawyers instead of the public,'' said a report from the Joint Legislative Audit and Review Commission, an oversight arm of the Virginia General Assembly.
Now, Virginia lawyers are arguing the politically delicate question. Just how publicly do lawyers want to air complaints against their own?
Something must be done, many lawyers agree. A survey this year showed that half of all people who complained about a lawyer to the Virginia bar were unhappy with how their complaints were handled.
That's not good enough, said Stephen G. Test, a Virginia Beach lawyer who chairs the committee that investigates Norfolk and Virginia Beach complaints.
``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.
But just how open should the process be?
All the way open, as the 1991 ABA panel recommended?
Part-way open, as state auditors recommend?
Or just leave it alone?
``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.
In Virginia, the process is relatively closed. 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. Everything else is secret.
Many lawyers say this 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, Test said.
``I think the system is probably as open as it can be and treat lawyers fairly,'' said Larry W. Shelton, president of the Norfolk and Portsmouth Bar Association. ``If you open the system up to all the crank complaints, then lawyers will be unfairly maligned. Most complaints are without merit.''
Surveys show that many Virginia lawyers fear being tarred by malicious and unfounded complaints if they are made public.
This summer, state auditors surveyed 337 Virginia lawyers. The bar's disciplinary system ``adequately protects the public,'' replied 43 percent. 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.
Asked if all disciplinary hearings should be open, 55 percent said no, 29 percent said yes.
Phillip C. Stone, president of Bridgewater College and chairman of the Virginia Bar Association's executive committee, is in the majority. In small towns and counties especially, Stone said, good lawyers could be hurt badly if unfounded complaints against them were made public.
``My main concern,'' Stone said, ``is not to have the first review of a lawyer's file be a public one.''
Yet 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 folks can call and see which lawyers have complaints against them. 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 ABA magazine this spring.
``It is important that the public feel that disciplinary procedures are fair and open,'' the Oregon bar president testified in 1991. ``Without access to complaint information, the public is suspicious that lawyers are protecting their own.''
Florida, too, has a relatively open system. Since 1990, all cases have been opened after a finding to dismiss the complaint or file formal charges. West Virginia has a similar system.
In Florida, ``There is more opportunity for the public and lawyers alike to understand our system. We are more accountable to the people we serve,'' John Berry, director of the Florida bar's legal division, told the ABA's Bar Leader magazine.
Only these three states - Oregon, Florida and West Virginia - have open or virtually open disciplinary systems.
Elsewhere, lawyers cringe at the idea. In fact, when the ABA panel recommended in 1991 that all records be opened from the moment a complaint is made, the larger ABA membership recoiled. A year later, the ABA's House of Representatives watered down the panel's findings.
In Virginia, state auditors recommend that the disciplinary system be thrown open after a finding of ``probable cause'' - that is, after a subcommittee finds a complaint is probably true, but before a full hearing on the evidence.
Overall, the system works pretty well, auditors found.
But they concluded: ``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.''
Test, the local bar committee chairman, agreed, but said he fears that too much openness too early in the process could wreck good lawyers' reputations. It also could create havoc with local committees. In Norfolk and Virginia Beach, such committees review five or 10 cases a month.
``I've been a proponent for a long time to open up the process,'' Test said, ``but it has to be done very slowly.'' MEMO: A CLIENT RESTS HIS CASE AGAINST THE LAWYER HE HIRED
Why do some clients feel the Virginia State Bar isn't paying
attention to them? The case of one retired Norfolk salesman is a typical
example.
The man, who asked to remain anonymous, had a land dispute with the
city of Virginia Beach. He thought the city had illegally taken his
land. He hired a Norfolk lawyer to pursue the claim.
Eventually, the lawyer worked out a deal. The client signed a paper
and got back his land.
But that wasn't enough. The man claims he spent $10,000 pursuing the
claim, so he wanted the city to reimburse him. He found, however, that
he had signed away his right to sue. He says his lawyer never explained
this.
``He settled it without me knowing about it,'' the client says.
The client says he tried calling the lawyer for three months, to no
avail. So the client filed a complaint against the lawyer with the bar.
He says he filled out a form but was never questioned by a bar
investigator.
A month later, he got a letter from the bar.
``While I empathize with your dissatisfaction with the quality of
(your lawyer's) representation in your case,'' the letter said, ``I must
advise you that your attorney's conduct is not unethical behavior under
the Code of Professional Responsibility.''
The client says he called the bar office in Richmond for a more
detailed explanation, but a staffer there simply referred him back to
the form letter. ``They didn't want to discuss it. That's what burned me
up,'' the client says.
Now, the client feels the bar never checked his complaint or
explained adequately why it was dismissed. The case file is
confidential.
``I just feel like, as a private individual, I did not have a chance.
I did not even have a chance to explain this to somebody fully,'' the
client says. ``I'm just a peon. I've got no money. I felt like I was
snowballed right over.''
- Marc Davis
ILLUSTRATION: Graphic by Ken Wright, The Virginian-Pilot and research by Marc
Davis
Survey of Virginia Lawyers
All State Bar disciplinary hearings should be open to the public
Yes 29% No 55% No opinion 14%
All State Bar disciplinary records should be open to the public\
Yes 38% No 48% No opinion 12%
Source: Joint Legislative Review Commission Survey, summer 1995
KEYWORDS: LAWYER DISCIPLINE COMPLAINT by CNB