Wanted: New Top Bar Cop
Mark DuBois retired the other day. He did so without fanfare, simply walking away from state service and back into private practice. I am sorry to see him go. Although he was the state’s top cop for policing lawyers, and therefore at least a potential foe on any given day, he brought a measure of good sense and realism to the job of Chief Disciplinary Counsel. The Judicial Branch should avoid the temptation to replace him with a zealot, although I understand that may well be the desire on the part of judges eager to police the bar.
DuBois’s tenure was marked by swift and decisive action aimed at lawyer defalcations. That is, frankly, as it should be. Nothing undermines public confidence in the law quite so quickly as theft from clients. There is no reasonable excuse for such conduct. Sending a message that such claims will be dealt with swiftly and decisively was the right thing to do.
But a good deal of the Rules of Professional Conduct has the sort of warm and fuzzy feel of the third round of drinks at the local watering hole. As the drinks start flowing, all sorts of commitments and regulations seem reasonable. Why, reasonable communication? Let’s shift the paradigm of communications to the informed consent model medicine uses, requiring lawyers to consult not just about the strategic ends of litigation, but about the means to be employed. Let’s draft a commentary to this rule, too, hiccup. Each phone call should be returned, or at least acknowledged by staff, promptly, belch.
Who dreams up this stuff?
The disciplining of lawyers for violations of the Rules of Professional Conduct is essentially a political task. The lawyer leading the office has enormous discretion in deciding what is and is not important. Hence, the practical experience of the lawyer holding that job is significant. If the top lawyer cop comes from a big-firm background, with the sort of clients that can afford to have every bell rung and each whistle blown, then the office will become a paper-hanger’s heaven.
There is a tendency among bar regulators to view the rules as a suicide pact between lawyer and client. Fees are regulated in an ad hoc basis to determine what is reasonable. A lawyer’s communications with clients are regulated on an ad hoc basis to assure that they reasonable. We’ve even smuggled a duty of fairness to third parties into the rules, effectively tipping the scales in the direction of requiring lawyers to serve as the conscience of their clients. The hidden imperative is a requirement to do more with less, and then sanction the small-firm lawyer who can’t offer big-firm service.
In the wrong hands, policing the bar can become the cold sort of entertainment Inspector Javert might prefer on a damp Paris evening: let’s push the struggling into the Seine.
What practitioners talk about, both lawyers and judges, behind closed doors are the impossible demands placed on the civil and the criminal justice system. Twenty percent of those incarcerated in Connecticut just now are mentally ill. A significant number of folks bringing civil claims in our courts also suffer a loosening of certain hinges. Many of these folks will either retain lawyers, or have counsel appointed for them. (On the civil side, judges are wringing their hands now about what to do with the flood of pro se litigants, folks with claims, but without lawyers.)
DuBois came from a small firm background. He knew what it was like to sit by the phone waiting for it to ring. He understood that not all litigants came from the central casting agency of Reasonable People, Inc. A lawyers job is, at least for most of us, making lemonade from lemons, or, if that cannot be done, at least keeping folks from doing damage to themselves. In the process, lawyers make tough calls that easily expose them to complaints. The standard for discipline ought not to be whether a client is unhappy – folks come to a lawyer most often because they are unhappy. We are not mental health counselors. The standard for discipline should be wilful misconduct, or conduct that causes actual harm to a person’s interests.
Patricia King is now acting chief disciplinary counsel. She is the ideal candidate to replace DuBois; she, too, earned her bread in the trenches. Practitioners will be watching carefully to see who the Judicial Branch appoints as a permanent replacement. If the job goes to a big-firm type, expect plenty of practitioners to say no to difficult clients, the sort of clients you don’t see at Wiggin & Dana or the other status factories of the bar.
Good luck, Pat. I am rooting for you. And good luck, Mark. I miss you already. Most of all, good luck to ye fellow small-firm practitioners. We might just need it.
Reprinted courtesy of the Connecticut Law Tribune.