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EYNOTE: MARTHA W. BARNETT
PROFESSIONALISM: DEBORAH L. RHODE
Let me close by singling out a representative example: reforming state bar disciplinary systems. Current systems generally dismiss about ninety percent of complaints without investigation.66 Although some of these complaints are clearly unmerited and reflect unhappy outcomes rather than unethical conduct, other complaints are excluded because disciplinary agencies are understaffed and underfunded. As a consequence most agencies decline jurisdiction over performance issues such as “mere” negligence, neglect, or overcharging. In theory, clients could bring malpractice claims for such abuses; in practice, such remedies are too expensive to pursue except in the infrequent circumstances in which liability is reasonably clear, damages are demonstrably substantial, and the lawyer has adequate insurance or assets available to cover a judgment.67 The vast majority of cases fall through the cracks, and only a minority of state bars offer alternative dispute resolution systems to address these claims.68 Moreover, the limited available evidence on the performance of such systems suggests that they are often more responsive to the concerns of lawyers than clients.69
Not only does the disciplinary process fail to provide remedies for most complaints, the remedies that it does provide are demonstrably inadequate. For example, in California fewer than two percent of complaints result in public sanctions.
70 Seldom does the system impose requirements like reimbursement that could benefit clients or impose significant penalties that might antagonize bar leaders, prosecutors, or other powerful officials.71 Only a handful of states authorize permanent disbarment, discipline of law firms, public disclosure of complaints, or sanctions against lawyers who fail to report ethical violations.72 All of these practices must change. If an informed and disinterested agency were designing the process, they undoubtedly would. The challenge lies in finding ways to nudge a self-interested profession in similar directions.
The same point could be made about a host of other issues that should be the subject of professionalism initiatives. Many bar ethical standards are insufficiently demanding or overly self-protective. They do too little to prevent overrepresentation for clients who can afford it and underrepresentation of everyone else. Litigation and fee abuses are too frequently unremedied, and non-client interests are too seldom protected.
73 Obfuscation and obstruction are common features of trial practice,74 and money often matters more than merits.75 Yet despite the cottage industry of commentary identifying these problems, judicial, administrative and legislative officials encounter significant disincentives to address them. Judges depend on the bar for their reputation, advancement, and sometimes campaign support. Constraints of time and resources also work against adequate judicial review of lawyers’ performance.76 So too, most elected officials see little to gain from challenging an interest group as powerful as the organized bar on issues of regulatory reform, especially since consumers have not mobilized around these concerns. The same is true of disciplinary agencies, which depend directly or indirectly on bar support.
