2006 Lawyer Discipline
Report Card

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HALT produced the 2006 Lawyer Discipline Report Card to assess whether states have taken any meaningful action to improve the lawyer discipline system since our last Report Card in 2002. Unfortunately, few states showed any improvement, and many states' systems actually saw their grades decline!

"Consumers today are still not adequately protected by state systems that investigate only a fraction of cases, almost never impose sanctions, attempt to intimidate and silence victims, hide misconduct behind a veil of secrecy, and often take years to process cases," stated HALT Associate Counsel Suzanne Blonder. "After years of ignored calls for reform by our organization, the American Bar Association and ethics scholars around the country, the situation is not getting any better."

What's New Since 2002
Perhaps the biggest news arising out of our 2006 Lawyer Discipline Report Card is how little most disciplinary bodies have changed since we issued our last Report Card four years ago. Sadly, the range of grades remains abysmal and most states maintained their general standing.

Three noteworthy exceptions, however, did shake up the grades. Pennsylvania's disciplinary body, which HALT rated as worst in the nation four years ago, ascended to fifth in the nation in 2006. "While the system is far from perfect, Pennsylvania's dedication to reform should be a model to the rest of the nation," stated HALT Associate Counsel Suzanne M. Blonder.

Following the release of the 2002 Report Card, Pennsylvania disciplinary officials requested HALT's assistance to develop a more effective and consumer-friendly structure. In 2003, HALT helped the Office of Disciplinary Counsel to develop the state's first attorney discipline Web site. Today, the Web site is one of the best disciplinary Web sites in the nation. In addition, the state has improved its reporting to the American Bar Association and abolished its overbroad confidentiality policy which, for 30 years, had required that disciplinary hearings be held in secret.

Massachusetts' standing also changed significantly, but this time for the worse; the state nosedived from best disciplinary system nationwide in 2002 to seventeenth in the country in 2006. Over the past four years, Massachusetts' system cut back on publicizing its system and slowed down its case processing. One of the most inefficient disciplinary bodies in the nation, Massachusetts delays bringing formal charges against an attorney for an average of two years after a complaint is received by the Board of Bar Overseers.

California's standing also fell dramatically over the past four years. In 2002, HALT rated California in the top quartile of disciplinary bodies across the country; today, the state is ranked an abysmal 45th in the nation. Although the Bar was investigating every complaint it received four years ago, the 2006 Report Card shows that California is now only reviewing one out of every three complaints filed. In addition, the Bar's automated telephone system has become more confusing, preventing consumers from obtaining prompt answers to specific questions from a staff member.

HALT graded lawyer discipline systems in six categories:

Adequacy of Discipline --- The most critical category produced the weakest grades. Analyzing the ABA's most recent statistics, HALT found that only six states - Maine, Massachusetts, Nevada, New Hampshire, West Virginia and Wisconsin - review every grievance, while the average state investigates only 58 percent of the complaints it receives. And unfortunately, investigations rarely result in discipline. A whopping 24 states impose formal public sanctions - disbarments, suspensions and public reprimands - in just five percent of investigated cases. In the average jurisdiction, only 7.8 percent of investigations yield public discipline. Almost half of the sanctions take the form of private discipline, rendered behind closed doors. "A secret reprimand amounts to little more than a slap on the wrist," explained HALT Associate Counsel Suzanne Blonder. "Because it is so lenient, it fails to deter unethical conduct and because it is done in secret, it fails to warn consumers about which attorneys to avoid."

Publicity and Responsiveness --- While disciplinary bodies are not publicized in courthouses and local media as much as they were four years ago, their online resources have dramatically improved since 2002. Today, most disciplinary Web sites offer downloadable complaint forms, information about upcoming hearings and clear explanations about the disciplinary process - features that most states lacked four years ago. Unfortunately, telephone services have not seen as much progress. California is one of the nation's worst offenders, forcing consumers to wade through a complex and time-consuming automated system before they can obtain information from Bar staff.

Openness --- Attorney discipline continues to be shrouded in secrecy. Nine states - Alabama, Delaware, Hawaii, Idaho, Iowa, Maryland, Nevada, Utah and Wyoming - prohibit the public from attending disciplinary hearings. Hamstrung by rules that require them to keep the process secret, officials in the vast majority of states refuse to release information about attorneys' discipline histories. Oregon and Arizona have always been the exceptions to the rule, providing consumers with complete records, including whether a grievance was ever filed against a lawyer. After HALT submitted comments to New Hampshire in 2004, the state adopted new rules which now allow disciplinary officials in that state to release complete disciplinary histories.

Fairness--- Disciplinary systems still utilize biased procedures. The most egregious - Alabama, Arkansas, Delaware, Iowa, Mississippi, South Dakota, Texas and Utah - prohibit consumers from disclosing information until the disciplinary body imposes public discipline in the case. New Jersey and Tennessee are the only two states that significantly improved in this area. At HALT's urging, supreme courts in both states struck down their gag rules as unconstitutional.

Public Participation --- On most hearing panels just one out of every three members is a non-lawyer. Six states - California, Hawaii, Kansas, Mississippi, South Carolina and Tennessee - do not allow a single layperson to hear evidence in disciplinary proceedings. Idaho is the only jurisdiction in the country where non-lawyers comprise the majority on hearing committees.

Promptness --- Shamefully, 18 states - Alaska, Arkansas, the District of Columbia, Hawaii, Idaho, Illinois, Indiana, Michigan, Minnesota, Missouri, New Hampshire, New Jersey, North Carolina, South Carolina, Vermont, Virginia, Washington and Wisconsin - stonewalled, refusing to release information about their timeliness to the ABA. Of the states that did report on the pace of their case processing, the average jurisdiction took nine months just to bring charges against an attorney and an additional five months to impose sanctions. Louisiana, the nation's most inefficient disciplinary body, took an astonishing 45 months - nearly four years! - to file formal charges in the average case.

"American legal consumers deserve a system that investigates promptly, deliberates openly, and weeds out unethical or incompetent attorneys," stated Turner. "Until there is meaningful reform, the legal profession has only itself to blame for the widespread public mistrust that mars every attorney's reputation."

Stronger discipline planned for county attorneys
The Iowa Supreme Court intends to see that proper checks are in place to prevent abuses by prosecutors.
By LEE ROOD AND BERT DALMER, Des Moines Register, September 25, 2004

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The Iowa Supreme Court announced Friday that it plans to strengthen its system for disciplining county attorneys, as concerns build over the state's practice of allowing prosecutors to police their own conduct.

In a written statement, the high court said that having a private body of peers review complaints against county attorneys had worked well for many years.

"Until recently, the court had no reason to doubt the effectiveness of any aspect of its disciplinary system," the statement said. "Nevertheless, the court has the ultimate responsibility for ensuring the efficacy and integrity of Iowa's attorney disciplinary process."

The Supreme Court provided no details or timeline for its plan, including whether it would strip the Iowa County Attorneys Association of its power to govern prosecutor discipline.

But the announcement came as several Iowa attorneys - including the head of Iowa's largest association of public defenders - this week criticized apparent conflicts of interest raised in the aftermath of the private panel's ethics reviews of Cass County Attorney James Barry and other prosecutors. Barry was removed from office last week after Cass citizens accused him of misconduct.

"To protect the rights and liberties of all citizens, there has to be adequate checks against unlimited prosecutorial power to prevent abuses," said Stephan Japuntich, president of the Public Defenders Association of Iowa.

Public records obtained recently by The Des Moines Register showed the head of the Iowa County Attorneys Association - the private group currently responsible for overseeing ethics complaints against prosecutors - embarked on what he referred to as "damage control" in the wake of the newspaper's reports of questionable plea bargains by several county attorneys, including Barry.

The e-mail records showed that Corwin Ritchie, an ethics trainer in Iowa Attorney General Tom Miller's office who helps conduct investigations for the association's ethics committee:

" Notified a county prosecutor to a citizen's inquiry about having that prosecutor removed from office.

" Advised another county prosecutor during an ethics investigation into that prosecutor's conduct.

" Suggested to another prosecutor that someone should look into the driving record of the reporter who first exposed the controversial plea-bargain deals that some county attorneys offered.

In an interview Friday, Ritchie, executive director of the County Attorneys Association, said he did nothing wrong when he told Clay County Attorney Mike Zenor about the citizen's inquiry into his conduct. He also said he had never "discussed the specifics of an ethics matter with another county attorney."

Ritchie said he believes there was also nothing unethical about suggesting in an e-mail that "someone other than a prosecutor" review reporter Clark Kauffman's record. "It's a public record," he said. "There are hundreds of people out there who are curious about what's motivating him."

However, since Ritchie's e-mail comments to others regarding those matters were published last week in the Register, attorneys have chastised Ritchie and Miller's office for downplaying such behavior.

In a letter to Miller this week, Fred Larson, a Story City lawyer and longtime supporter of Miller, scolded the attorney general for "trivializing" Ritchie's conduct at a time when Ritchie was supposed to be investigating a complaint. Ritchie's behavior, he wrote, was "offensive and almost unbelievable, not much better than what Mr. Barry was thrown out of office for."

In an interview Friday, Larson said he believed that Ritchie should be disciplined and that future ethics investigations should be handled by the Supreme Court's Board of Professional Ethics and Conduct. "The Supreme Court is in charge of disciplining everybody else in the legal profession; I don't know why they shouldn't be doing this for county attorneys," he said.

In Iowa, the Supreme Court's ethics panel hears almost all complaints against attorneys - excluding prosecutors.

Typically, complaints against prosecutors are routed to the ethics board of the county attorneys association. After its review, the board can either dismiss the complaint or issue a private admonition against the prosecutor. If more serious discipline is warranted, the panel makes a private referral and recommendation to the Supreme Court panel.

Records obtained this week from the Supreme Court, however, show none of the 48 cases referred last year to the prosecutors' group were forwarded on to the Supreme Court panel for action or review. The group did issue one private admonition of a prosecutor.

In contrast, the Supreme Court ethics panel handled 503 cases against other lawyers, dismissing 319, records show.

Norman Bastemeyer, special counsel for the high court's ethics panel, said the years-long practice allowing a private review of prosecutor complaints has "taken some of the burden and the strain off of us. These county attorneys perhaps are more knowledgeable with regard to the particular and peculiar functions that a county attorney has."

However, Iowa Public Defender Tom Becker said other attorneys are not always afforded the courtesy of a peer review before the Supreme Court panel considers a complaint. Like prosecutors, public defenders are often accused wrongly of misconduct, he said. Yet, those cases are not screened first by peers or members of a private organization like the Public Defenders Association of Iowa.

Ritchie said in a written statement Friday that his group has been formally recognized for its work with the Supreme Court Board of Professional Ethics and Conduct. However, "to reassure the integrity of the process, the ICAA welcomes the opportunity to participate in a review of the present disciplinary system."

Attorney General Miller was out of town this week and unavailable for comment. His spokesman, Bob Brammer, said Friday that his office had been planning to ask for a review of disciplinary procedures before the Supreme Court's made its announcement.

The Lawyer Disciplinary System
A Web of Legal Ethics: Rules of Professional Conduct
HALT: Lawyer Accountability
Attorney and judicial discipline in need of reform
A column by Deborah Sumner
American Bar Association Directory of Lawyer Disciplinary Agencies
Discipline an Attorney

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