TOP SECRET: Lawyers On Trial   

In most states the lawyers who hear complaints about lawyers keep them from the public and the press.

After reviewing 20,000 pages of documents and conducting hundreds of interviews, the San Francisco Examiner was finally ready to publish its six-part series, "The Brotherhood: Justice for Lawyers."

Reporters had followed a paper trail that led to such characters as trial attorney Eugene Bambic, who stole $57,000 from a family he had represented in a wrongful death suit. While the state bar's disciplinary committee spent two years investigating the complaint, Bambic had embezzled another $300,000 from clients and had been elected vice president of the California Trial Lawyers Association.

Milton L. McGhee, another attorney featured in the series, pulled a similar stunt: He was nominated to the state Court of Appeals in Sacramento while under investigation for embezzling money from a client he had represented in a personal injury suit. McGhee won $350,000 for his client, who had been paralyzed in a race car crash, but only handed over $29,000. He invested the rest in real estate. It took the state bar five years to investigate the case and disbar McGhee, who used that time to embezzle more money. In 1983 he was convicted of grand theft and sentenced to almost five years in prison.

These sordid tales are just two of many the Examiner reported in its 1985 series to expose how poorly the state policed its lawyers. The stories also indirectly pointed the finger at the media; newspapers, television and radio stations hadn't paid any attention to Bambic and McGhee either.

The press had little choice. The state's disciplinary process for lawyers was shrouded in secrecy: Complaints against attorneys were off-limits to the public, hearings took place behind closed doors, and discipline often entailed no more than a private reprimand, which meant no one – neither an unsuspecting client nor a curious reporter – could find out about the crimes of the accused.

Thanks in part to the Examiner's scathing series, California's bar revamped its disciplinary proceedings. By 1989, it replaced its mostly volunteer staff with full-salaried professionals who cut the backlog of 2,500 complaints to 566 in three years. The bar started dismissing fewer complaints, opened its proceedings to the public and issued stiffer penalties. It will allocate 75 percent of its $54 million projected 1992 annual budget to discipline, a dramatic jump from the $8 million spent in 1985.

The bar even appointed a watchdog: Robert Fellmeth, director of the Center for Public Interest Law in San Diego. As official monitor he has found that "instead of 20 disbarred members, we have 100; instead of 100 suspensions, we have 250; instead of 60 reprovals or reprimands, we have 1,000. The changes have been very significant."

What happened in California is, unfortunately, the exception to the rule. In most states, the news media remain indifferent to or stymied by the secretive policies of disciplinary committees, despite every indication that a story lurks behind the closed doors.

Lords Of Discipline

A Washington, D.C.-based advocacy group, Help Abolish Legal Tyranny (HALT), surveyed disciplinary committees, many of which are state agencies, in 1988 and 1990 and found that less than 2 percent of the 100,000-plus complaints filed every year nationwide resulted in a public reprimand.

"No other government agency, with the possible exception of those charged with national security interests, is permitted to conduct 98 percent of its work in secret," Kay Ostberg wrote in HALT's most recent "Attorney Discipline National Survey." "The fact that discipline agencies are charged with public protection makes this secrecy particularly egregious."

The complaint procedure, which varies across states, begins when complainants file grievances with the attorney disciplinary agency. In 33 states the state bar operates that agency, which decides whether the accused attorney violated the state's ethics rules. If not, the complaint is dismissed; if so, an agency panel recommends action to a governing board. The board might uphold the recommendation, dismiss the complaint or recommend a punishment to the state's highest court, which in most states oversees punishment. Court action could include dismissal of the complaint, a public reprimand, license suspension or disbarment.

HALT found the committees invisible to the public (some have unlisted phone numbers), lenient, slow, intimidating and inbred (lawyers policing fellow lawyers). In 34 of the 46 agencies that responded to the survey, clients are threatened with contempt of court if they discuss their complaint with anyone except their counsel. In some states clients may be ordered to pay legal costs of both sides if their charges are ruled unfounded. In its own report, the American Bar Association (ABA) acknowledged that the possibility of suits has a "chilling effect" on potential complainants.

The committees' policies have a chilling effect on journalists as well. James A. Finefrock, who co-authored the Examiner series with former court reporter Connie Kang, thinks reporters fail to investigate for several reasons. "First, the closed nature of the process is a deterrent; second, it involves a lot of hard work," says Finefrock, who now edits the Examiner's editorial pages. "You know that scene in the movie "All The President's Men", where Woodward and Bernstein are going through file cards? Not too glamorous. The Examiner series involved a lot of work like that." Finally, he says, the threat of libel and taking on the establishment do not appeal to most publishers.

Pennsylvania provides a case study. Its bar disciplinary committee doesn't make files public until the state Supreme Court is ready to issue its discipline, which can be years after a client complained. Thus no one can know how long it took to process the case, if the lawyer committed other offenses or even if he deserved his punishment. There are no public hearings, and sometimes the discipline decision is sealed.

Dave Racher, who covers criminal courts for the Philadelphia Daily News, says he hasn't challenged this arcane procedure: The state Supreme Court sets the rules on confidentiality, and the only way to change them is to file a lawsuit that would wind up at...the Supreme Court. "It's a completely closed system and we know that," he says. "We don't have the time to worry about it...I have 58 courts to cover."

The Philadelphia Inquirer's Stuart Ditzen is equally discouraged. "I've covered crooks, frauds and dishonest lawyers, and I've observed this discipline office for years," he says. "They spend more energy enforcing and worrying about their confidentiality rules than anything else.

"I ignore the disciplinary board entirely when studying potentially crooked lawyers because the counsel rarely does anything, and I can get my information from the civil and criminal courts."

Oddly enough, the chief of Pennsylvania's disciplinary committee, Bob Davis, thinks the system should be more open. But he's not expecting changes because, he says, the disciplinary board of the state Supreme Court, which sets policy, is "hesitant to change."

In 1985, while head of West Virginia's bar disciplinary committee, Davis became embroiled in a lawsuit when the Charleston Gazette charged that withholding information on complaints against attorneys violated the First Amendment.

"The paper could make some progress with editorials," but not enough to get the hearings opened, says Gazette Editor Don Marsh. "After hassling with the state bar, [the publisher] finally sued. The bar insisted that we would use frivolous complaints to disgrace lawyers, but they realize now that wasn't our objective."

The Gazette's victory made West Virginia's disciplinary system one of the most open in the country. Although Davis applauds the changes, he upbraids the press for failing to make use of them.

"After [the lawsuit] I was profoundly disappointed in the press in that it did not follow it up," he says. "I'm disappointed in the poverty of coverage in the states where it is more public."

But Jack McCarthy, who often covers legal issues for the Gazette, says he does take advantage of the more open process. "They just annulled the [law] license of the state's former governor [Arch Moore, who is in prison] for obstruction of justice, tax fraud and mail fraud," and the open process meant McCarthy could analyze all the files on the case.

Taking Access For Granted

Elsewhere, there is strong evidence that Davis is right about press indifference. In states where either tough coverage or a lawsuit has won a more open process, reporters often ignore the committees altogether.

In 1981 the Seattle Post-Intelligencer did an Examiner-type series titled "Who Watches the Lawyers?" The reporters tracked down characters such as attorney Hugh W. Stroh Jr., convicted of urging a police officer to lie under oath and sentenced to just 30 days in jail, a few hours of community service and a $500 fine. The judge even let him stagger his jail sentence, one week every month, allowing him to continue his practice; whenever he had to do time, his secretary told callers he was on vacation. Although Stroh's crime was a felony, which usually leads to disbarment, the disciplinary committee levied no punishment.

"Because of the secrecy of the bar's proceedings," reporters Eric Nalder and Tim Egan wrote, "there is no way for anyone other than bar officials to evaluate the disciplinary board's decision."

As it turned out, not even the state's Supreme Court justices had "evaluated" the sentence. They found out about the case from the Post-Intelligencer series. "They hit the roof because they're supposed to have the final say in all these cases," says Nalder. The angry justices overhauled Washington's disciplinary process, which now ranks with Oregon, California, West Virginia and Florida as among the most open.

Despite this coup, some reporters in Washington still take access for granted. "We were much more interested when [the disciplinary system] was closed," says Nalder, now chief investigative reporter at the Seattle Times. "We don't check the record nearly enough."

The Post-Intelligencer's current court reporter, Jack Hopkins, says he hasn't dealt with a bar discipline matter in years; there is "just too much to do." He says he sometimes covers two to three murder trials in a single day.

Don't tell that to Herb Jaffe at the Star-Ledger in Newark, New Jersey, who's dying to get at the bar's complaint files in that state. "The word 'secrecy' is like running a red flag right in front of my eyeballs," he says.

In keeping with its protective ways, New Jersey's disciplinary committee didn't respond to HALT's survey. Jaffee says nothing opens up until the court issues a final disciplinary action. "No one would delve into these cases if they were open, but the fact that they're closed is enough to raise our ire."

But when asked what stories his aggressive reporting has turned up, he grumbles and says he's had to deal with more "general stuff." The bottom line is that Jaffe is forced to take a reactive rather than active approach on the disciplinary beat because nothing gets out until it's over.

Jaffe did get to vent his frustration at a conference this past October sponsored by Rutgers. Judges, lawyers and reporters discussed the ABA's new 103-page evaluation of state disciplinary committees. It contains 22 recommendations on how to resolve problems from leniency to secrecy. The report shocked the legal profession when it first appeared in May 1991 because it offered some radical suggestions, including the idea that all complaints be made public from the moment they are filed.

In the past the ABA's policy has been that complaints be open to the public once "probable cause" has been found – that is, once the committee decides the accused attorney may have violated the ethics code. But that occurs in only about 10 percent of the cases; most ethics rules are so narrow that common problems such as fee disputes aren't covered. So 90 percent of the complaints, many of which involve legitimate concerns, remain off-limits to the public and the press.

Jaffe believes the "bar members are overwhelmingly hysterical over opening the process. They claim some lawyer's reputation could be ruined if a false charge were made public. But in states where the process is more open, there are hardly any headlines."

California's discipline monitor, Robert Fellmeth, says he's seen no instance where a reporter has abused the state's open process. In fact, he believes the committees will have more peace and quiet if they open their doors: "The way to do what you want in government is to bore the media, not present yourself as some kind of hot property or as a potential scoop. By putting it all out there – matter-of-factly – it makes it less interesting."

Fellmeth's hypothesis has proved accurate in some states, as Seattle reporters Nalder and Hopkins attest. Yet despite the "bore them to death" theory, most lawyers remain convinced that journalists will come looking for dirt. "If the system were opened up, only the most grotesque cases would get coverage," says Bruce Davis, executive director of the bar association in Kentucky – a state that could win the blue ribbon for most secretive disciplinary system in the United States.

Its all-lawyer, all-volunteer board dismisses 95 percent of complaints and keeps confidential the few it chooses to hear. Complainants who do get a hearing usually wait months, even years, because Kentucky's disciplinary system has no deadlines. They can't even appeal the final decision, though the attorney can.

Chances for change are slim. "If you took a vote of lawyers in the state an overwhelming majority would still favor confidentiality," Davis says. State bar delegates from all 50 states and the District of Columbia will vote this February on the ABA's recommendations for overhauling state disciplinary committees.

Secrecy will be the most controversial issue when the ABA votes, says Cassie Dalla Fanta, assistant regulation counsel for the ABA's Center for Professional Responsibility. "The perceived problem is that many attorneys think complainants shouldn't have absolute immunity [from countercharges or penalties] if the system is going to be opened."

Officially the National Organization of Bar Counsel, which represents lawyers who police lawyers, supports each of the ABA's proposals, says NOBC President Michael Rigsby. But privately most members back qualified immunity.

Even if the delegates approve a recommendation to make disciplinary records public as soon as a complaint is filed, there is no indication that states most in need of reform will adopt it. Only five states abide by the current ABA gospel of opening files once "probable cause" has been found. And representatives from the committees in both Kentucky and Pennsylvania say the outcome of the vote will have little effect on their policies.

Changing The System

But there is another catalyst for change: lawsuits. State and federal courts overturned confidentiality rules in Oregon, Florida and West Virginia on the grounds that they violated the First Amendment. The most dramatic reforms took place in 1976 in Oregon after a freelance writer, trying to gain access to information on a corrupt judge, filed a lawsuit against the state bar. The court ruled that a complaint must be public from the moment it's filed, which makes Oregon's process the most open in the nation.

Jeffrey Sapiro, disciplinary counsel for Oregon's bar, says reporters have not misused information, though the large number of requests can be overwhelming: "There are times when the openness is inconvenient...Some weeks we have 80 files to pull."

Despite such successes, filing lawsuits against lawyers seems a painful and pricey route. A complainant in Kentucky is contesting the process, but as Bruce Davis says, that would mean "the Supreme Court has to find one of its own rules [of confidentiality] unconstitutional."

The best option remains an aggressive media. State legislatures approved major reforms in California and Washington because newspapers invested the time and money to expose the failings of their state bars. The recession has certainly made it more difficult for papers to do costly investigative projects, but apathy and laziness also contribute to this big missed story.

When asked about Kentucky's closed counsel, Lexington Herald-Leader court reporter Thomas Tolliver confesses he is ignorant of the process. "I don't want to say it's really not an issue, but it's not something that presents itself as a problem because it's so rare to need it," he says. However, he added that he can only learn about a case once disciplinary action has been imposed: "Everything is so after the fact that I can't know how long it took to process the complaint."

Despite the Examiner's compelling series, California's bar insisted it had one of the "best systems in the country." Reforms came only after legislators threatened to prohibit the bar from collecting millions of dollars in membership dues. As Robert Fellmeth of the Center for Public Interest Law points out, "Only 25 percent of the [California] legislators were lawyers," which is gradually becoming the case in other legislatures as well.

Most newspapers and broadcast stations, however, are not watchdogging the lawyer discipline process. If the media hope to expose lawyers before they swindle clients or squirm out of felony charges, they will have to take every opportunity. Delegates may vote down the ABA's recommendations in February, but as California and Washington reporters have shown, the press can alert readers. Legislators and judges, in turn, can snatch the reform process away from the lawyers who set up such a sweetheart system of discipline.