By Hal R. Lieberman [Originally published in NYPRR February 1999]
As the year 2000 approaches, the legal profession in the U.S. will soon number nearly one million. There will be 175,000 of us in New York alone, 60,000 in the First Judicial Department. These figures are clearly of concern to the Bar for many reasons, not the least of which is the potential for so many more attorneys without adequate practice skills, and the regulatory challenges posed by a large increase in the population of unprepared lawyers.
In the First Judicial Department, the Departmental Disciplinary Committee (DDC) experienced a 51% increase in the number of complaints filed against lawyers between 1990 and 1997. The figure now exceeds 4,000 complaints per year. Additionally, public sanctions have risen by approximately 135% during the same period. [Between 80 and 100 lawyers annually are publicly sanctioned in the First Judicial Department, as well as over 250 statewide. These statistics are based on Annual Reports of the DDC from 1990–1997 (Appendix F).]
While these increases, real and dramatic as they are, tell us that the work of the DDC is becoming ever more important, they do not address in a meaningful way the most basic questions that should be asked: is the disciplinary system currently effective, and if not, what can be done to make it more responsive?
In assessing the effectiveness of the disciplinary system, the slate is not blank. Important recent state and national reports have analyzed various disciplinary systems and have proposed numerous reforms in a global context. [See, “Lawyer Regulation for a New Century,” A Report of the Commission on Evaluation of Disciplinary Enforcement of the American Bar Association (1992); see also, Report of the Committee on the Profession and the Courts (a Report commissioned by Hon. Judith Kaye, Chief Judge of the New York Court of Appeals) (1995).] I will evaluate the system from the unique viewpoint of a former Chief Counsel to a sizeable disciplinary agency who now represents lawyer-respondents. My evaluation is of a specific agency — the DDC — in a particular and highly visible jurisdiction. It should be obvious that what we do, or fail to do, in regulating the legal profession in New York City, will have national repercussions.
In order to assess how well the DDC currently works and what steps can be taken to improve any deficiencies, it seems logical to start by asking what the various interested parties want from a well-run disciplinary system.
What Consumers of Legal Services Expect
In my experience, many people who complain about their own lawyers (or other people’s lawyers) do not have a valid basis to do so, and may well be motivated only by spite or disappointment at a result. But it is important to recognize that many consumers of legal services do in fact have quite legitimate complaints, and that they are appropriately concerned about how their complaints will be handled.
Consumers’ proper expectations as to process include at least the following: (1) disciplinary procedures are clear and readily ascertainable; (2) staff investigations are thorough and fair; (3) the disciplinary process concludes within a reasonable time frame; (4) information about the status of a complaint and its investigation is reasonably provided; (5) protection is afforded against attempts to harass or retaliate; and (6) a meaningful remedy is provided.
Many commentators have asked for a more “open” process in which anyone, including the press, can gain access to otherwise confidential information about a lawyer’s complaint history, or concerning an ongoing disciplinary investigation or prosecution. Of course, in New York the rule continues to be hostile to public access, and under Judiciary Law §90 (10), strict confidentiality will prevent access. Whether that policy will change is primarily up to the state legislature. But it may well be the case that consumers would place less emphasis on “sunshine’ reform, one of the centerpieces of the current recommendations, if disciplinary systems operated in a speedier and more responsive manner.
What Attorney-Respondents Expect
Lawyers or law firms that become the subject of a disciplinary complaint also have very real and appropriate concerns about how fairly and efficiently the system operates. They are entitled to have their interests considered seriously. Significantly, the issues of most concern to respondents are nearly identical to those of consumers. They entail, for the most part, a desire to understand the disciplinary process and to be assured that staff investigations are thorough and fair (i.e., that the respondent’s position is heard and evaluated fairly). They expect that the process will end within as short a time as possible, and that there will exist an array of alternative remedies which reasonably address whatever professional “problem” may be identified. In addition, respondents expect and have a right to be treated with professional respect, they have a right to the presumption of innocence, and they have a right not to have their reputations unfairly blemished by unproven or spurious allegations leaked to third parties.
What Bar and Public Expect
The public goals of lawyer discipline are well known and least, much of what the Bar and the public expect from the disciplinary system is reflected in judicial discussions of the purposes of discipline: (1) deterrence; (2) protection; (3) even-handed treatment of disciplined lawyers; and (4) maintenance of the integrity of the Bar. It is also probably true that while the organized Bar has mixed feelings about more “open” disciplinary procedures, a large majority of the public would probably favor more access to information about a process that has always taken place, at least in New York, behind closed doors.
How Responsive Is DDC? Does It Meet These Legitimate Expectations?
Do the DDC’s current structure and performance meet the reasonable expectations of consumers, respondents, the Bar and the general public? The very short answer is: yes and no. Despite staffing constraints and other resource limitations, aggravated by a volume of complaints that continues to grow, it is nonetheless apparent that the DDC operates with integrity, that the process is generally fair to all concerned, and that the end result generally achieves a modicum of deterrence, protection, and assurance to the Bar and the public that lawyers are being regulated in a serious way. On the other hand, the process is doubtless still too slow (despite efforts to speed it up); remedies are still inadequate; and there is an impersonal quality which results in too little information or communication with interested parties as investigations proceed and conclude.
Honest, Thorough Investigations
The current DDC staff — consisting of 20 lawyers, four paralegals, and four investigators — is too small to investigate thoroughly every possibly meritorious complaint of the more than 4000 new matters received each year. Nonetheless cases meriting the most serious attention are being identified and aggressively pursued. All one has to do to verify this fact is to review DDC case files, as I did for eleven years, or attend disciplinary hearings, as litigants and members of the DIX do on a regular basis. I am confident that these observers would overwhelmingly confirm that sufficient, if not minutely comprehensive, investigations are taking place. The DDC’s success rate in the litigation of serious cases involving formal charges (well over 90% of which result in some form of public discipline imposed by the Court) also confirms the proposition that serious cases are being pursued with vigor and effectiveness.
Some complaints which could potentially be investigated, however, are screened out during the early stages of review because the staff concludes that an investigation is unlikely to result in successful prosecution. In response to anticipated concerns about this, the DDC has also built into the rules a fail-safe mechanism to protect consumers who feel aggrieved by the early dismissal of a complaint. The mechanism entails several layers of review by the staff and then by DDC Committee members who are independent of the staff. This is followed in the end by the right to “reconsideration” (another independent review) should an aggrieved consumer request it. [See, 22 NYCRR §605.8(d).] Thus, even if the first and second screening procedures lead to the erroneous dismissal of an otherwise meritorious complaint or if there has been inadequate investigation, the right to reconsideration before a complaint is finally closed provides an adequate consumer remedy. There is no evidence that this process of screening and review does not work well and fairly.
Clear and Ascertainable Policies and Rules of Procedure
Although Judiciary Law §90 and Parts 603 and 605 of 22 NYCRR set forth the DDC’s rules of procedure, the disciplinary policies and procedures are described in a format that is not clear and readily available to consumers and the public, or for that matter to respondents. As a partial response to this, the DDC has produced an Annual Report for the past nine years. Each report contains a substantial quantity of useful information, including a description of the rules and their application to major cases. However, the Annual Report’s distribution is quite limited.
In the last several years, an effort has also been made to revamp all standardized correspondence so as to address the needs of consumers and respondents for straightforward information. For many years the DDC’s staff has been available to explain its operations, and it informally fields inquiries over the phone on a daily basis concerning disciplinary procedures or the status of pending matters. But a better job can be done spelling out in plain English (or Spanish or Chinese) just how the system works. To that end, the staff is drafting a brochure that will in theory eliminate the “information gap.”
Consideration is also being given to development of a comprehensive “office procedures manual” so that future DDC staff and Committee members will have uniform policies and standards to guide their work. In the end, however, the DDC must constantly seek ways to improve communication with every interested party. People can accept imperfection in the disciplinary system so long as an effort is made to explain the process and its limitations. It’s vital to create the perception that the DDC has reasonable rules and is trying hard to serve the public.
Prior to 1989, if a disciplinary investigation did not result in dismissal of a complaint, the DDC was limited under the existing rules to the imposition of traditional sanctions: letter of caution; admonition; public censure; suspension; disbarment. But in the last 10 years there has been a grounds well of public and bar sentiment in favor of broadening the scope of remedies. This was expressed most forcefully in the 1992 ABA study of the status of attorney discipline systems nationally. [See, “Lawyer Regulation for a New Century,” A Report of the Commission on Evaluation of Disciplinary Enforcement of the American Bar Association (1992).]
In that Report, the ABA recommended, among other things, that disciplinary and grievance agencies expand available remedies to include various forms of alternative dispute resolution, including mandatory fee arbitration and mediation of minor disputes, and that special remedial programs be developed to improve law office management, enhance professionalism and reduce recidivism.
Thus far, the DDC has adopted two such programs. The first, attorney-client mediation, has been underway since 1989, and has proven quite successful in resolving minor, non-disciplinary disputes between lawyers and clients. Nearly 1000 complaints that were “diverted” to mediation have now been appropriately resolved using the mediation process, and mediation modeled on the DDC’s program has recently become a required part of disciplinary systems statewide.
DDC ‘Ethics School’
The second initiative undertaken by the DDC to broaden the scope of available remedies is the so-called “ethics school,” a two day course that has been offered once annually for the past four years. The idea is to provide a crash course of study for respondents who are repeat recipients of consumer complaints or who have otherwise engaged in low level or minor misconduct. Its goal is quite basic: to train these attorneys to avoid disciplinary complaints or malpractice claims in the future. While there are no precise figures on success rates, it is the sense of people who participate in the program, based primarily on course evaluations that “ethics school” works well. It is already being emulated in similar bridge the gap’ seminars that are being offered throughout New York. With the advent of required CLE and its mandatory ethics component, the DDC’s “ethics school” has also been officially certified as a CLE provider.
In 1998, under the leadership of the First Department’s then Presiding Justice, Alfred D. Lerner, and of local bar associations, a diversionary program was adopted for attorney substance abusers in New York City. The program supplements an effective statewide effort run by the New York State Bar Association’s Committee on Alcoholism and Substance Abuse.
Thus, as we can see, the DDC has been very active in trying to expand the scope of remedies available to consumers and attorneys. This approach is quite sensible because it recognizes the need to address more broadly and flexibly the growing problem of attorney misconduct, and because it is also a more efficient way to utilize limited resources. However, even more needs to be done. Still pending, for example, are proposals to establish diversionary programs involving monitoring and mentoring, with emphasis on law office management, as well as full implementation of mandatory fee arbitration.
Expediting Complaint Resolution Process
Perhaps the major criticism leveled at disciplinary systems, including the DDC, is that the process of resolving complaints is too slow. However, we are entitled to ask: Compared to what? By whose standard? And, Is a speedier process necessarily better for consumers and respondents? Will more expeditious handling of complaints lead to a higher quality product?
The problem of speedy resolution of disciplinary complaints has two components: (1) the time it takes to conclude less serious cases which usually result in dismissal or minor discipline; (2) the time it takes to investigate and prosecute serious cases generally involving some form of “due process” hearing and resulting in public discipline. The minor cases comprise the vast majority of matters (probably 90%) that come before most disciplinary and grievance agencies, including the DDC. The trick, in my view, is to separate the “wheat” from the “chaff” so that limited staff resources are preserved only for serious investigations.
At the DDC, that entails a two-tiered screening system which seeks to identify and eliminate, at an early point in time, any insubstantial complaints. However, the process still takes time because of the need to accumulate and review the complaint, the respondent’s answer, and the complainant’s reply. Currently, the average time period for resolution of less serious cases at the DDC is in the range of 6–9 months. This period can probably be somewhat reduced with existing resources by tighter case management and shortened time limits imposed on the parties, but not much will be gained if the quality of the reviewing process is detrimentally affected by an artificial goal.
Serious Cases Harder to Manage
Shortening the time it takes to conclude the more serious, litigated matters is a far more complex task, but perhaps more urgent as well. The current average period of time it takes the DDC to conclude a case involving formal charges and a hearing is approximately two years. Frequently, several complaints, received at different times, are combined in an omnibus set of charges. This, too, extends the time frame. While the difficulty of moving complex, litigated disciplinary cases is familiar to most lawyers involved in the disciplinary process, there are also steps that can be and are being taken, within the current framework of rules, which may speed things up without sacrificing vital rights or effective advocacy.
One such initiative is the abolition of the DDC’s longstanding system of Hearing Panels which adjudicated cases in the first instance. Although the Hearing Panels, which included lay members, reflected a more “democratic” notion of fact-finding adjudication, panels have at times been exceedingly ponderous in scheduling hearing dates, and universally slow to file reports. The DDC has now replaced Hearing. Panels with designated Referees, a system similar to that in the other three Departments. However, the Court has also promulgated new rules entailing an additional (and, some would contend, questionable) layer of procedure, whereby the parties are required to appear before a Hearing Panel for mandatory review of the Referee’s findings. [See, 22 NYCRR §605.14.] Whether the interim ”appellate” review will facilitate the disciplinary process remains to be seen.
Other DDC rule changes are also intended to shorten the time periods within which procedural events must occur in cases requiring formal charges and a hearing. [See, 22 NYCRR §§605.12, 605.13, 605.14.] Finally, the DDC staff has revised its internal goals for investigation prior to the filing of formal charges, with an eye to decreasing the current average span of approximately one year. However, it’s not easy to reduce this delay because of numerous difficulties beyond the control of staff investigators, including uncooperative respondents, the slowness of banks or third parties to respond to subpoenas or document requests, and the frequent receipt of new complaints against the same respondent in the middle of an investigation.
Whether the DDC’s efforts succeed in significantly reducing the time it takes to resolve major disciplinary cases in the First Department is, of course, still an open question, but the effort to address this issue on the part of the DDC, supported by the Appellate Division, is laudable and very much in the interest of all concerned parties, the Bar and the public.
When analyzed from the perspective of the rightful expectations of the participants in the disciplinary process, the system, at least in New York’s First Judicial Department, is fundamentally a dynamic, well functioning and productive enterprise. Instead of resting on its laurels, or conversely, closing up shop in response to uninformed or irresponsible criticism, the DDC is working hard to improve its responsiveness to all concerned. It should be encouraged to continue on that road by every member of the legal profession who understands the need for effective and fair regulation of lawyers.
Hal R. Lieberman was formerly Chief Counsel to the First Department Disciplinary Committee. He now serves as counsel to the firm of Beldock, Levine & Hoffman, LLP, in New York City.
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