Problems with your lawyer: “Better Rules for Bad Lawyers”

A few days ago, the New York Times had an editorial that lays out perfectly one egregious aspect of bad lawyering and what can do done about it in New York State. It’s so important and so clear I’m printing here the entire editorial:

In 2009, a lawyer in New York helped his client settle a claim for $30,000. The lawyer then had the check issued in his own name, deposited it into his own account and used all of the funds for himself. The client demanded his money to no avail.

It took more than three years before the lawyer was disbarred for stealing a client’s funds. During all that time, the lawyer, who already had a history of serious disciplinary infractions, kept working.

This is a disturbingly common story in New York, which has more lawyers than any other state. Punishments for those who violate obligations to a client — if not the law — are slow, inconsistently levied and often hidden from the public.

Professional discipline is essential to the integrity of any legal system. Unfortunately in New York, the process for dealing with lawyer misconduct is “deficient in design and operation,” writes Stephen Gillers, a professor at New York University School of Law in an article to be published next month in N.Y.U.’s Journal of Legislation and Public Policy.

Professor Gillers examined attorney-discipline cases going back to 1982 and all 577 court opinions imposing sanctions issued over the past six years. In addition to the many instances of “unacceptable” delay in the official response to complaints about lawyers, he documents the great disparity in the way similar violations are handled by courts in different parts of the state.

For example, a lawyer who filed false documents, made false statements and improperly notarized a client’s signature was suspended for two and a half years by the appeals court in Manhattan. But, in Brooklyn, comparable actions by a different lawyer resulted only in a formal rebuke but not a suspension. In upstate New York, appellate courts rarely explain the reasons for their decision to sanction or not sanction, and, when they do, they often don’t follow their own earlier rulings.

Perhaps most troubling is the overall lack of transparency that pervades the system. Unlike 40 other states, New York does not inform the public of pending charges against lawyers. It is also unnecessarily difficult to learn when a lawyer has been officially sanctioned, even though sanctions — which can include censure, suspension or disbarment — are part of the public record.

At the very least, New York, which has 166,000 lawyers, should adopt uniform standards for disciplining lawyers. The American Bar Association set clear and sensible standards in 1986, but some states have successfully established their own.

In California, for example, almost all disciplinary cases are handled by a State Bar Court that is staffed with full-time judges who issue thorough rulings. Professor Gillers also recommends that every lawyer’s disciplinary history be made easily available online, and that law firms tell potential clients how to access the information.

Not everyone will be eager to upset the status quo, including the appellate judges who would like to maintain their control over the process, and the lawyers who benefit from the leniency of local courts. But it must change if New Yorkers are to have confidence in the lawyers who represent them.

I’ve written extensively about my personal experience in filing a grievance against a lawyer. (Use the search term “filing a grievance” to find the series here on Sidebar.) The Times is critiquing primarily the court administrative structure currently in place to deal with really bad lawyers, and although it does make some reference to the position of clients, it does not detail what I have tried to: how does an uneasy client determine whether his lawyer is treating him professionally and ethically, and if the lawyer is not, how does the client file a grievance?

I repeat, with emphasis, one sentence from the editorial:

It is also unnecessarily difficult to learn when a lawyer has been officially sanctioned, even though sanctions — which can include censure, suspension or disbarment — are part of the public record.

Boy, is that true! I have a dim recollection of getting into peculiar online corners of the court system, and then not being able to find those corners again when I needed to.

In my experience — and I actually had experience (see the many posts here on Sidebar detailing my experiences) — the process is vague. The term “self help” comes to mind, and the instructions for the grievance process are sort of like buying a vacuum cleaner you have to put together yourself, and attempting to follow the opaque instructions and diagrams while an immense variety of obscure vacuum parts lie all over your floor.

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