Public left in dark on accused attorneys

Protection from angry clients cited as one reason for secrecy

Yamil Berard
August 19, 2007
Star-Telegram (TX)

Dallas attorney Bruce Patton has a clean disciplinary record, according to the State Bar’s Web site, which provides profiles of the state’s 80,000 or more practicing attorneys. But consider this before you hire him to draft your will: Patton is in state prison after being convicted of a felony two years ago.

Would you be curious to know whether the personal-injury lawyer you’re interested in hiring is careful not to bill you a dime too much? The firm of John O’Quinn, one of the state’s wealthiest personal-injury lawyers, was ordered by an arbitration panel this summer to pay $35 million to former clients who say he overbilled them for expenses, but no mention of that order is on the Bar’s Web site.

Then again, the Bar forewarns that it provides “no warranty” that its information is complete and accurate.

Key aspects of the oversight system for Texas lawyers could leave the public vulnerable, a Star-Telegram review found. The Texas Legislature and Supreme Court, which share a role in establishing ethics rules for attorneys, have made it so that the public stays in the dark about thousands of lawyers accused of misconduct. Bar confidentiality rules ensure that many sanctions are private and that lawyers accused of felonies can continue practicing. The Bar doesn’t require attorneys to report their criminal record or malpractice suits.

Bar officials say that protecting the public is an important role for the Commission for Lawyer Discipline, the Bar’s primary disciplinary arm. “The very big concern is making sure that we protect the public from lawyers that are abusing the public trust,” said Betty Blackwell, chairwoman of the commission.

But that doesn’t mean the general public has to be thoroughly informed of lawyer discipline, she said. Representatives of the public sit on the board of the Bar’s disciplinary arm. So “even though this may not be made public, and the public as a whole may not know what happened, it has been reviewed by public members,” Blackwell said. “That’s the point.”

The limited publicity also reflects the commission’s other priority: sparing attorneys from needless embarrassment. Under today’s rules, the public is not told if an attorney is being investigated, or the number or nature of any grievances that are dismissed against an attorney. So the Bar won’t say whether it is considering sanctioning Patton, whose jail term ends next month. Its Web site says only that he is inactive.

Blackwell also won’t comment on the situation with O’Quinn, who was sued by women he had represented in breast-implant lawsuits. The women said he overbilled them by including expenses that weren’t authorized in his contracts with them. In a split decision in July, the arbitration panel found that O’Quinn had breached his fiduciary duty, according to published reports.

Neither will she say whether the Bar is examining the role of any Texas attorneys who may have played a part in the creation of fraudulent tax shelters at Jenkens & Gilchrist, which was one of the state’s most prestigious law firms. The firm agreed to a $79 million penalty settlement with the federal government. While the settlement included a nonprosecution agreement, the firm admitted to developing and marketing fraudulent tax shelters. Some clients who relied on the firm’s advice and wound up owing millions of dollars in back taxes filed suits alleging malpractice, fraud and other infractions.

The Bar’s Web site does not list sanctions against several Texas attorneys named in such lawsuits.

Confidentiality is important to protect competent lawyers from the wrath of disgruntled clients over an unfavorable judgment or a complaint that the attorney isn’t communicating enough, Blackwell said.

“It’s just the nature of the profession, the confidentiality,” Blackwell said. “Should the lawyer face the same thing [as someone accused of a crime] because a frivolous complaint has been filed against them? Should the public know this lawyer is being investigated?” The Bar’s answer is a resounding no, in all matters of misconduct, serious or slight. In fact, Bar staff and others say with aplomb that, when attorneys are arrested on felony charges, that’s not necessarily cause for the Bar to start a disciplinary investigation.

“We’re not criminal attorneys,” Blackwell said. “That’s the job of district attorneys.”

Fewer are disciplined
To critics, the Bar’s concern with protecting its own has resulted in a system that gives attorneys the upper hand. They say that’s why the Bar tallies thousands of fewer grievances from the public than 10 years ago, and fewer lawyers are disciplined, even as the number of licensed lawyers has grown.

Ten years ago, one in 120 lawyers was disciplined; today, roughly one out of every 250 is disciplined.

Bar stats show that most grievances are dismissed; of those that aren’t, most lead to no sanctions. When a lawyer is sanctioned, the Bar rarely publicizes its disciplinary actions except in publications for lawyers, such as the Texas Bar Journal.

“Nobody reads it,” said Michael K. Moore, associate professor of political science at the University of Texas at Arlington. The public can obtain documents related to findings about a sanction, but attorney profiles on the Bar’s Web site don’t state that. As a result of the gaps, it’s up to potential clients to conduct background checks, an overwhelming task if you need an attorney fast, say consumer advocates and legal-reform organizations.

“Essentially it’s like throwing a dart on the wall and picking somebody on that basis,” said Steve Hall, executive director of the StandDown Texas Project, an Austin-based organization pushing for changes in the criminal-justice system.

The consequences of a bad choice are grave: “In civil matters, lawyers’ mistakes can really haunt a person and damage a person’s life,” Hall said. “When you look at a criminal matter … the job a lawyer can do really can be life or death.”

To the Bar, the statistics show that lawyers are doing a better job.

Bar officials say that fewer lawyers are being punished because there are better ethics programs in law schools, and new lawyers are now required to take ethics courses. The Bar also has its own law-practice management course that helps members handle matters like communicating with clients and safeguarding client funds, among the top reasons for grievances.

The most notable reason grievances are down, officials say, is a mediation program begun several years ago to encourage clients and attorneys to work out problems. In fact, the grievance complaint form was revised in January 2006 to encourage the public to go through the Client-Attorney Assistance Program. Dismissed grievances may also be referred to CAAP. Callers who have a problem with a lawyer and who have not yet filed a grievance are referred to CAAP.

“Many people’s main complaint is not getting their phone calls returned or their file returned. So rather than waiting on a slow grievance to expedite that, they get a favorable result,” Blackwell said. “It was really our desire to help people get what they needed faster.” Bar staff has been pleased with the results. “They’ve been very successful in resolving problems,” said Maureen Ray, special administrative counsel.

Skeptics fear that CAAP provides some lawyers with a get-out-of-jail-free card. Some in the Bar have characterized those lawyers as “frequent fliers” because, as long as they cooperate with the client and the Bar’s CAAP staff, they go unscrutinized.

End of ‘a valuable tool’
The debate over public access to information about lawyer discipline goes back years, reflecting a divide even within the legal community.

Today’s system reflects legislative changes made in 2003. A significant change was eliminating informal hearings in front of a regional grievance panel to help determine whether an investigation was warranted. The client and affected attorney took part in the hearings.

“It was an early way for everybody to get in there, say their piece and figure out whether anything was there or not,” said Gaines West, chairman of a panel appointed by the Supreme Court to review the disciplinary system.

Today, the Bar staff and the grievance panels determine whether complaints will go forward or be dismissed. A staff attorney, representing the office of the Chief Disciplinary Counsel, has the say-so over thousands of grievances. If the staff attorney determines there’s no just cause, his argument for dismissal is presented to the regional grievance panel. Usually, it affirms the decisions.

Critics call that process “the star chamber” because minutes aren’t kept and, worse, the complainant is cut out of the process.

Even lawyers have objected. “I have been very unhappy with the loss,” said Sharon Conway, a former disciplinary prosecutor for the Bar who now represents attorneys charged with misconduct. The hearings could lead to a faster resolution. “It was a valuable tool.” Ask Moore, who is also associate provost at UT-Arlington. He and a committee of criminal-justice experts studying legal services for the poor filed a complaint against a lawyer who Moore said had made a number of mistakes involving a Death Row client.

Their grievance was dismissed. The Bar won’t tell him what happened, Moore said.

“We were hoping that if we filed a grievance or two and the Bar decided to sanction the guy, other lawyers would be taking their job more seriously,” he said. “It didn’t work out that way.”

Blackwell points out that while complainants aren’t allowed at the dismissal hearings, neither are the attorneys under scrutiny.

And the new system is speedier, said Ray, the Bar’s special administrative counsel. The old one “made the grievance process take too long.”

West, chairman of the Supreme Court-appointed panel, said that the legal community faces a predicament as it tries to do the right thing.

An attorney may have commingled his or her funds with the client’s. That’s a violation, he said. But that lawyer may be suffering from severe depression.

“So there’s two issues,” he said. “They’ve harmed the public in the practice of law, and they can’t get it together.

“So you’ve got to hold that sick lawyer accountable for the bad things they’ve done to the client, but you also got to make that sick lawyer well. … That’s a real big issue for us.” Because the Bar puts as much emphasis on protecting attorneys as clients, the public doesn’t get the protection it needs, said Larry Doherty, an attorney for 30 years who was chairman of his region’s grievance committee in the 1980s.

“I tell people if they want to file a grievance, they could generally consider it a waste of time,” he said. “If a lawyer had cheated them, that lawyer needed to be sued.”

About the Consumer Report Card series

This report is part of the Star-Telegram’s ongoing examination of consumer protection in Texas. For previous installments on healthcare professionals, go to star-telegram.com/consumer_news

Original article at http://www.star-telegram.com/state_news/story/206810.html

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