Each Day Brings New Accusations

Just because someone files an ethics complaint, we shouldn't assume anyone did anything wrong.  Ethics charges get lobbed far more often than they strike home.  As I often say, "sometimes, 'legal ethics' is just a brick they throw at you."  So, these stories illustrate only the kinds of allegations being raised these days.

Here's news that a new ethics complaint alleges that a former justice of the West Virginia Supreme Court of Appeals is doing TV ads in a judicial robe, soliciting clients for a Vioxx class action.  The allegations may eventually cause her chronic pain  . . .   Sometimes a trial attorney is elevated to the bench and watches while her trial conduct is the subject of an appeal.  Here's news of a former prosecutor and current Texas judge who sought to intervene as a witness in a death penalty appeal, apparently to justify her behavior as prosecutor and to deny charges that she withheld informaton from defense counsel.  The judge was caught between a rock and a hard place: the death penalty appeal accused her of bad conduct as prosecutor, and when she stepped forward to clear her name she was accused for stepping forward to clear her name.  . . .   Here's news that a justice of the Rhode Island Supreme Court built his own personal web site and then quickly killed it after ethical questions were raised about whether the site. 

Comments

[David Behar, 2L]

One alternative explanation is the typical Disciplinary Counsel (DC) works in service of typical Bar interests. When a complaint serves Bar interests, the lawyer faces personal destruction. The same complaint, not in the service of Bar interests, is dimissed. This impression is especially true when a complaint is about actions against third parties.

I am interested in an explanation of the typical puzzling setup. A prosecutor, the DC, performing an executive branch function, is an employee of a state Supreme Court, the judicial branch. The DC's paycheck is written by the members a Bar, the objects of the investigation. What gives? What happened to Separation of Powers, the only source of our liberty? What happened to conflict of interest? What employee in all of human history has properly investigated his paycheck writer?

Other professions are supervised by executive branch, licensing bureaus, paychecks from taxpayers, refereed by an administrative law judge, with appeals to a neutral judiciary.

[John Steele]

David:

I can't speak for all 50 states, but I think the answer might be related to the historical origins of the bars. There is a general notion that what makes a lawyer a lawyer is the court itself. Courts regulate entry into the profession and behavior as a lawyer. They may appoint commissions to manage those processes, but at least nominally the courts sit atop those functions. For that reason, all lawyers were considered "officers of the court" itself. So, the disciplinary function is seen as part of the court system itself.

You're right to question whether that generalized historical answer makes sense. I know that, at least in California, the legislature has taken a more active role over the disciplinary process, mainly through its budgeting powers and its ability to strike deals with the judiciary when the judiciary needs things from the legislature. I have a state bar prosecutor coming to my class next week and I will ask him about whether there is any executive branch power of the discipline process.

Are there any state bar prosecutors or any respondents counsel who could chime in here?

[David Giacalone]

John, you say "ethics charges get lobbed far more often than they strike home." That sounds more like defense counsel than ethics professor. Count me among those who believe that far too few complaints result in disciplinary action because the watchdogs are far too cozy with the wolves they regulate, plus too sleepy and underfed.

For a client-oriented perspective, take a look at HALT's materials on the Lawyer Discipline System [ http://www.halt.org/reform_projects/lawyer_accountability/discipline_system/ ] and at my op/ed "Sustained Objection: Lawyer Discipline Still Inadequate" -- http://blogs.law.harvard.edu/ethicalesq/stories/storyReader$71 .

[John Steele]

David:

Thanks for commenting.

You say that I sound more like defense counsel than an ethics professor. There may be a good reason for that. Let me be reiterate: I am not a Professor. Although students typically address me as "Professor Steele," I am appointed as Lecturer on a semester-by-semester basis at UC-Berkeley and occasionally at other schools, like Santa Clara (2002; 2005) and Stanford (2003). I'm not even an "Adjunct." That term has been dropped by the schools where I teach.

Next, I like to believe that my opinion isn't simply derivative of my job. I want to be knowledgable and correct in the long run, not in the short run, so if I'm off the mark I'd like to know why, with solid support.

I don't want to get into a "heated agreement" over ethics allegations, and simply trade rhetoric when the other speaker and I aren't necessarily disagreeing. I find that's a real danger with this topic.

Getting down to the heart of the matter, my original post said that ethics claims get lobbed far more often than they strike home. What I mean is that, in my experience, a large majority of the statements "that's unethical" directed at attorneys are simply wrong. In my view, a large majority of those comments really boil down to "that attorney is doing something I don't like" or, even worse, "I think I can gain a strategic advantage by tossing out an accusation of unethical conduct."

As I understand your response, you replied by saying, in essence, "look at how bad (or perhaps even abysmally) state bars perform the task of attorney discipline" and that far too ethics complaints result in disciplinary sanctions.

My position and yours are not mutually exclusive. We could both be correct. And, it's even conceivable that there could be a correlation, if not a causal relationship, between our respective claims.

Thanks for steering me to the HALT scorecard. Outside pressure and oversight can be so useful in keeping bureaucracies in line.

This week I will have a state bar prosecutor and a disciplinary defense lawyer in my class, and I will press them on this issue.

John Steele

[John Steele]

Oops. I meant to say, "As I understand your response, you replied by saying, in essence, 'look at how bad (or perhaps even abysmally) state bars perform the task of attorney discipline' and that far too [FEW] ethics complaints result in disciplinary sanctions."

[David Giacalone]

Thanks for a thoughtful reply, John. We probably have a larger area of agreement than disagreement on this topic (a fact that I tried for many years to get my mediation clients to realize).

I have only brought two ethics complaints in my life, both against the same attorney, Andrew Capoccia (who had in fact been disciplined a number of times for other conduct before I complained). My formal complaint against the Albany-area attorney concerned his "debt reduction" practice. Capoccia was taking thousands of dollars in advance from clients, under a 25% contingency contract (supposedly a percentage of estimated future "savings"), while doing virtually no work beyond sending letters to creditors; instead of avoiding bankruptcy, Capoccia ruined the credit of his clients, whom he told to stop making all payments on all accounts [outlined in my op/ed piece, at -- http://blogs.law.harvard.edu/ethicalesq/stories/storyReader$71 ] The Ethics Committee took no action on my detailed presentation (which was based on a direct conversation with Capoccia), saying that it would not investigate, because I was not an injured client.

A year later, I tried again (after moving and filing with another Committee in a different district), and once more no investigation was made. Discussing the matter with bar counsel, I was told [paraphrased] "we don't pay attention to complaints by lawyers against lawyers, because they are almost always from competitors trying to knock out the competition." I pointed out that I had specifically stated in my letter that I had never engaged in any type of law practice remotely related to Capoccia's practice. I asked whether lawyers were supposed to ignore the ethical duty to report unethical conduct by other lawyers. It was also intimated by bar counsel that it was too dangerous for his office to go after a lawyer for using unreasonable contingency fees.

Capoccia was later disbarred -- ten thousand clients later -- not for hurting his clients, but for filing frivolous law suits. Because the issues raised by me were never addressed, his partners went on to harms many thousands more clients, taking many millions of additional dollars, while Capoccia hid his assets.

Last week, by the way, the federal trial against Andrew Capoccia started in Rutland, VT, with charges of fraud and embezzling client funds totalling $23 million. His two former partners -- who had set up shop in VT after Capoccia was disbarred and our NY AG started going after their "Centers for Consumer Protection" -- pled guilty to the fraud charges earlier this month. Some amazing facts can be found in this news article: http://www.rutlandherald.com/apps/pbcs.dll/article?AID=/20050210/NEWS/502100386/1003/NEWS02 .

[David Giacalone]

p.s. I mentioned your sounding like a defense counsel, because I learned yesterday, at the Boalt Hall website, that you had a law practice "focusing on legal ethics consultation and legal malpractice defense litigation."
http://www.law.berkeley.edu/courses/coursePage.php?cID=4865&termCode=B&termYear=2005

Your course Legal Ethics in Non-Firm Practice sounds interesting.

[John Steele]

David:

The Ethics in Non-Firm practice course is one I enjoy. This semester we've attorneys from domestic violence practice, from criminal prosecution and defense, and from in-house corporate. This week we'll have a State Bar prosecutor and a solo who defends disciplinary matters, and later judicial ethics (w/ a judge who's a specialist in that field), and then public interest impact litigators, and then environmental lawyers, and then what may be my favorite class of the semester: municipal lawyers, with Terry Stewart (of San Francisco City Attorney's Office, who's leading the Same Sex Marriage Litigation) and Manuela Albuquerque (who's the City Attorney of Berkeley). I'm trying to find some libertarian/politically right public interest impact litigators to appear as well. One previous year we had a lawyer from the Pacific Legal Foundation, and she argued that she takes on the most hopeless cases of all: individuals suing the federal government to enforce individual rights. That's the lineup. I have the great pleasure of asking these amazing laywers about what they do all day, what ethics situations arise, and what they think a good lawyer is.

[John Steele]

David:

As for you individual situation, I can't comment excpet to say that it sounds horrible. But I will read that HALT scorecard and ask the State Bar prosecutor and the solo about the issues it raises (secrecy, preponderance vs. clear and compelling, etc.)