A Wasteful Bar Disciplinary Process


            A remarkable story appeared in the Connecticut legal press last week, but its significance appears to have been missed both by the editors and by those quoted in the story. “Hundreds” of unprocessed complaints against lawyers are awaiting attention in the offices of lawyer-regulators. That’s because the office has been closed since mid-March.

            Think about that for a moment.

            In two months, hundreds of people have filed complaints against their lawyers, making claims that the lawyers have violated their professional duties in the course of representing the clients. That represents something like a tidal wave of claims of unethical conduct, right? The public should be concerned, right?

            There are approximately 21,000 lawyers licensed to practice law in Connecticut, making the state the sixth-most lawyer-rich population in the United States. (We’ve 59 lawyers per 10,000 residents. (New York has the highest concentration per 10,000 population 91.9; the District of Columbia tops the charts among jurisdictions at 765.6)

            Assuming 200 complaints unprocessed, that means approximately 1 of every 105 lawyers in the state has been accused of misconduct in a two-month period. (Actually, I suspect that some lawyers have more than once unprocessed complaint pending.)

            That would be shocking if the numbers actually meant that the lawyers had done something wrong. But the overwhelming majority of these cases will be dismissed without a finding of probable cause; that is, a reviewing committee will look at the allegations against the lawyer and conclude that there is no good-faith basis to pursue the claims.

            In other words, most of the complaints are frivolous.

            So the real question is not why are there so many complaints against lawyers? The real story is what’s wrong with a system that fosters, indeed, encourages frivolous complaints? It never appears to have occurred to anyone to ask that question.

            I spoke at a seminar sponsored by the Connecticut Trial Lawyers Association in March, a week or so before the closings. The first speaker was the state’s Chief Disciplinary Counsel, the top lawyer policing lawyer misconduct claims. He gave a general overview of what to do to avoid disciplinary complaints.

            His remarks were for the most part well-received.

            But mid-way through the question and answer session, things turned a little surly, and members of the audience, criminal defense lawyers, turned sour. Why? A perception that the lawyer cops had no sense of the market they were regulating. No member of disciplinary counsel’s office has any meaningful experience in the criminal courts. At least some members of the audience appeared to feel poorly served by regulators who are largely ignorant of the pragmatic realities facing those they police.

            The textbook answer, of course, was that the Rules of Professional Conduct are general in character and not practice-area specific. All lawyers must engage in the same minimum professional requirements regarding fees, communications, client confidences and the like.

            But textbook answers aren’t worth all that much when the text is written in general terms. What is a reasonable communication? What is a reasonable fee?

            The fact is that street-level lawyers representing folks in trouble are operating in a marketplace filled with unreasonable people. Most folks manage a lifetime without an arrest. The folks wandering into a criminal defense lawyer’s office have problems with the law that are most often a result of a failure, an inability, to meet the minimal conditions of social life encoded in the criminal law. Put another way, they are not reasonable people.

            Lawyer regulation is steeped in something like professional self-hatred. We want the public’s approval, so we encourage the public to file complaints about lawyers when they are unhappy with the lawyers. I can’t imagine physicians tolerating the same amount of masochism.

            The pandemic will pass. “Hundreds” of new complaints will be processed, and thousands of hours will be wasted reaching the conclusion that the overwhelming majority of the claims lacked merit and were, in fact, frivolous.

            Some system. Would that bar regulators looked at this as an occasion to fix a regulatory system that is wasteful, rather than appear to bemoan the opportunity to process frivolous complaints in a more timely manner.

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