Make Bar Complaints Public – At Least to Other Lawyers

As many of my fellow bloggers and readers know, I’m no fan of bar disciplinary programs.  Among other things, I believe that the bars disproportionally target solos and pursue sanctions for trivial infractions while sometimes failing to seriously investigate real dangers. That’s why many may be surprised to learn that after seeing ABA’s 2003 statistics on bar disciplinary proceedings mentioned by my blogger-colleagues Bob Ambrogi and Ben Cowgill, my first reaction was that all 119,863 of these complaints should be made available for review by other attorneys.  Here’s why.

According to a quote at Ben’s site from the Washington Times:

The ABA survey showed 119,863 complaints against lawyers were received in 2003 by disciplinary agencies.

More than 62,000 complaints were summarily dismissed because they did not state facts that would constitute professional misconduct, or because the agency otherwise lacked jurisdiction, the ABA said.

Of the remaining 83,000, another 45,000 were dismissed after formal investigation. Formal charges were warranted in response to 79,150 complaints, and actually were brought during the year against 2,912 lawyers.”

There’s an awful lot of information in all of those complaints that could help lawyers better comply with ethics rules and avoid violations – if only the information were accessible.

And imagine the benefits if the ABA could create an “ethics data base” for access by attorneys.  First, lawyers would get a sense that a bar complaint is not necessarily something to be feared if they could have a chance to view at least some of the 62,000 meritless complaints (and the attorneys’ response) listed in the survey.  Lawyers would learn that the best way to defeat a weak ethics claim is by responding to it, not avoiding it.  Now, too many lawyers dig a deeper hole for themselves by failing to address a bar complaint.  In addition, while there are plenty of lawyers who deserve an ethics inquiry, there are also plenty of overly litigious clients who don’t deserve a lawyer.  By being able to access a data base of ethics complaints, lawyers could learn in advance whether a client might be likely to file a frivolous ethics complaint.  That’s not to say that the lawyer would have to automatically decline to represent the client, but at least the decision to go forward would be fully informed.

Access to those complaints that generated a formal investigation would be useful as well.  In cases where charges were dismissed after investigation or where formal charges were contemplated, the bar’s decision might include an explanation which could be of use to lawyers who find themselves in similar ethics quandaries.  Some bars have ethics hotlines to respond to questions but many do not – so the ability to review the bar’s decision would offer lawyers necessary guidance.

Finally, other lawyers should be informed when colleagues are investigated.  In contrast to laypeople, lawyers have the ability to ferret out whether a charge was frivolous. Thus, a lawyer who was the subject of a false or trivial claim would not be prejudiced by other lawyers knowing about the charges.  More importantly, lawyers need to know about their colleagues’ disciplinary records to avoid possibly referring these attorneys to other clients where the attorney has engaged in serious violations.  A few months ago, a colleague of mine learned that a colleague whom he’d referred to numerous prospective clients had in fact been suspended from practice.  My colleague never knew or thought to check up on the status of the other lawyers’ license – but at least that information would have been available.  What about a situation where an attorney has had several complaints filed against him?  Presently, that information is not available unless the attorney has been formally (and publicly, as opposed to privately) sanctioned.

At the same time, I don’t believe that complaints should be made available to the general public, unless a formal sanction results following a full hearing.  Most members of the public do not have the ability to discern between a frivolous complaint and a legitimate one which could result in harm to an innocent lawyer’s reputation.  (I’m not sure about situations where multiple complaints, albeit not leading to sanction, have been filed.  On the one hand, multiple complaints can signify a problem that the public should be aware of, on the other, the number of complaints might be tiny in proportion to the number of cases the attorney has handled.  So, I’m reserving judgment on whether multiple complaints (more than 5 in a 3 year period?) ought to be disclosed) Moreover, attorneys should be able to access the data base only on assurance of keeping the information in strictest confidence.  Any leaks about another attorney’s disciplinary reocrd, particularly to gain a competitive advantage, should be met with harsh sanctions themselves.

According to the most recent budget proposal for the DC Bar (one of the jurisdictions where I’m admitted), roughly $62 of $173 in dues goes to the Board of Professional Responsibility.  Granted, the DC Bar has an excellent ethics hotline program which I’ve used many times, but beyond that, I receive no other benefit from that component of my payment.  But if I could take a look at even some of the 1333 complaints filed (as opposed to the 100 or so resulting in public sanction or reprimand), that would make my dues a far more worthwhile expenditure – and help make me a more knowlegeable and ethical lawyer.