Calling Attorneys To Ethical Account
IN a seventh-floor room in downtown Boston, a lawyer's future, livelihood, and reputation are on the line. His fate lies primarily in the hands of other attorneys who are part of an elaborate machinery for investigating and punishing lawyers' ethical misconduct.
Thomas Callahan, a solo practitioner in Woburn, Mass., admittedly used some $70,000 entrusted to him by an elderly client for office expenses and an unrepaid loan to a relative. (Mr. Callahan later reimbursed the client's estate after her death, taking a second mortgage on his residence to obtain the funds.)
Under questioning by his attorney before a three-member hearing panel, Callahan - his eyes welling with tears - describes his background, his otherwise unblemished career, and the misappropriation of funds, and expresses his remorse. Then he undergoes sharp cross-examination from Assistant Bar Counsel Roger Geller (in effect the prosecutor) and the three hearing officers as a court reporter transcribes the proceeding.
Over the next few weeks, the panel will recommend punishment to the 12-member Board of Bar Overseers (Mr. Geller requests a three-year suspension of Callahan's license, while Callahan's lawyer argues for one year), in an adjudicatory process that, with appeals, could take the matter all the way to the Massachusetts Supreme Judicial Court.
The two-hour hearing is atypical, Geller explains to a reporter, because Callahan acknowledges his wrongdoing. More commonly, when the misconduct as well as the punishment is at issue, disciplinary hearings can last several days, with numerous witnesses.
The journalist's presence is a new phenomenon in Massachusetts, which opened lawyer-disciplinary proceedings to the public just six months ago.
Bar leaders in Massachusetts, as in many other states and at the American Bar Association (ABA), are deeply concerned about lawyers' seedy reputation. The profession is responding, among other ways, by paying stricter attention to legal ethics and making disciplinary procedures more visible.
While lawyer-disciplinary systems vary from state to state, as in degrees of openness and layers of appeal, they are comparable in many respects, says Massachusetts Bar Counsel Arnold Rosenfeld, who confers with his counterparts at semiannual meetings of the National Organization of Bar Counsel.
A major advance in the last 20 years, ABA Assistant Disciplinary Counsel Charlotte Stretch says, has been ``the greater professionalization of disciplinary offices.'' In virtually all states, now, she says, lawyer discipline is prosecuted by full-time attorneys and investigators (though budgets and staff sizes vary).
Most disciplinary proceedings begin with complaints from clients. In 1993, the Massachusetts Office of the Bar Counsel received 2,220 complaints about lawyers' conduct, up 7 percent from 1992. More than 200 Bay State lawyers received punishments ranging from disbarment to public censure.
Sometimes the criticisms are just ``consumer complaints'' about lawyers' practices (such as failing to return phone calls) that don't constitute ethical violations under bar association codes of conduct, the ABA's Ms. Stretch says. Yet the ABA is urging the profession to pay more heed to consumer complaints - both to improve lawyers' image and also because unprofessional conduct often precedes unethical conduct, Stretch says.
The typical ``respondent'' in a disciplinary case, studies show, is a solo practitioner like Callahan or a lawyer in small firm. Such attorneys, says Yale Law School Prof. Geoffrey Hazard, an expert on legal ethics, are more vulnerable than their big-firm brethren to the economic pressures of an increasingly competitive profession, and they also receive less peer oversight and guidance.
Big-firm lawyers aren't necessarily more ethical, Professor Hazard says. But evidence suggests that larger firms, sensitive to major clients' displeasure and to potential malpractice liability, act as ``private police agencies'' that quietly, but fairly effectively, punish and remedy their lawyers' ethical lapses, Hazard says.