Old Disciplinary Problems Just Got Worse

The following article is from September 26, 1993:

Debate Over Public Disciplinary Hearings for Lawyers
The New York Times by JAN HOFFMAN - September 26, 1993

New rules of conduct for New York divorce lawyers have prompted a sharp debate on whether disciplinary hearings against them should be opened to the public. At a State Assembly hearing last week, supporters of a more open process said the system now is one of "lawyers protecting lawyers," while the State Bar Association said that changing the process could unfairly tarnish lawyers' reputations. The debate stems from a decision in August by New York's top judge to impose a sweeping new set of rules giving divorce lawyers' clients far more rights. Most of the rules, which say clients are entitled to a written fee schedule and which prohibit sexual relations between lawyers and their clients during a case, needed the approval only of the judge, Judith S. Kaye. But the rule on disciplinary proceedings needs legislative approval. Secrecy Is Suspect Assemblyman G. Oliver Koppell, who is the chairman of the Assembly's Judiciary Committee, said, "a secret process is inherently suspect." He was joined by members of the American Bar Association, who said New York, which usually takes the lead in legal developments, is behind the national trend to open disciplinary hearings.

Twenty-eight states have opened disciplinary proceedings to the public after probable cause has been established, and West Virginia and Florida open them after an investigation has begun. Beyond that, for 17 years Oregon has allowed its residents to know as soon as a grievance is filed. But Archibald R. Murray, the president of the New York State Bar Association, said he was worried about the harm that might be done to lawyers, especially in small towns, if such a system was imposed in New York. "Exoneration doesn't remove the stigma," he said. The public, Mr. Murray said, is protected through interim suspensions that grievance committees can issue during investigations. He said that an overwhelming majority of complaints against lawyers are dismissed as frivolous. In 1991, of the 2,658 complaints filed with the First Judicial Department, which includes Manhattan and the Bronx, 93.8 percent were dismissed after an initial review or a staff investigation. But clients' advocates contended and the head of the First Judicial Department's disciplinary committee conceded that many cases are dismissed not because they are frivolous, but because the investigative staff is too small to look into all complaints. Mr. Koppell said that since so many cases are dropped, clients should at least receive timely and full explanations on those that are pursued.

Now, clients file grievances with offices overseen by the state's appellate divisions. Then the waiting begins. Judge E. Leo Milonas, the chief administrative judge of New York's courts, said that filing a complaint "was like sending a letter to the Bermuda Triangle." If the grievance committee decides to dismiss the case, the client usually learns about it from a three-sentence form letter. The public, said Judge Milonas, feels summarily rejected, all of which underscores the perception "that lawyers are protecting lawyers," he said. Deirdre Akerson, a Westchester County woman whose divorce case has been in the courts for four years, described her experience before a grievance committee as "insulting and demeaning." Ms. Akerson, now a member of the Coalition for Family Justice, a group whose tales of injustice at the hands of the courts and their divorce lawyers helped prompt the new rules, was furious when she learned that the complaints she had lodged against her lawyer were dropped, without explanation.

Years can pass before a case is resolved, during which time, others argued, new clients may hire lawyers without having any notion that formal charges, much less grievances, have been filed against them. A Triage System Haliburton Fales, the chairman of the First Judicial Department's disciplinary committee, said complaints are now investigated through a system of triage. "You just have to move on to the serious cases and that's the way the world works," he said. Much of the debate was over not only whether the proceedings should be opened, but also at what stage. Gloria Jacobs, a representative of NOW-New York State, and others argued that the public should be informed as soon as a complaint is filed. But John D. Feerick, president of the City Bar Association in New York, urged that confidentiality should be dropped only when probable cause that a grievance had been committed had been established. That is when a grievance committee has decided to bring charges against the lawyer. Raymond R. Trombadore, a Somerville, N. J., lawyer who is chairman of the American Bar Association's commission on the Evaluation of Disciplinary Enforcement, played down concerns about damage to reputations of small-town lawyers. "Oregon is a state of little towns," he said. Its lawyers seem not have found full disclosure a serious problem, he said. When the proceedings were first opened in Oregon, he said, there was an initial flurry of press attention, which tapered off. The problem with New York lawyers, he said, is that "We just think we're too newsworthy. And we're not.