Proposed new changes to Arizona’s disciplinary rules are supposed to make the process of disciplining lawyers quicker, faster, and better. In other words, it’ll be good for lawyers. Or at least that’s what the state bar is telling them. But as the late President famously said, when government offers to help, watch out. And make no mistake, the state bar is a quasi-governmental entity. It’s also a bureaucracy of the first rank.
Mandatory state bars are bureaucracies. And Arizona’s is no exception. When bureaucracies look at recreating their rules, it’s not unlike what Bismarck said, “There are two things you don’t want to see being made—sausage and legislation.”
So when the Arizona Supreme Court set as one of its initiatives, to “Work with the State Bar to improve the attorney discipline system to ensure the efficient, timely and fair resolution of complaints,” the Arizona State Bar responded like any self-respecting bureaucracy. It created a committee.
Actually, they called it the Attorney Discipline Re-Engineering Task Force. It’s job? To reengineer the bar’s way of punishing lawyers and to model it on what the Court believes are the “best practices” from the Colorado State Bar’s discipline system.
Best in Class.
I am unaware of any disciplinary system benchmarking study or independent ratings report that validates a “best in class” or even a Westminster Dog Show style ‘best in show’ ranking of any state bar, let alone Colorado’s. And far as I know, there’s no J.D. Powers ranking of the way state bars mete out discipline to their members.
In 2009, Lawyer Carolyn Elefant at My Shingle blogged on The Bars, Reviewed: What Has Your Bar Association Done for You Lately. But beyond Carolyn’s informative and comprehensive report, the only independent group I know that looks at bar associations and how they hold lawyers accountable is the virulently anti-lawyer HALT, (Help Abolish Legal Tyranny).
Unfortunately, HALT’s oversight has been somewhat moribund of late. HALT last reported on state lawyer accountability in its 2006 Lawyer Discipline Report Card. In its 2006 report, HALT coincidentally gave Colorado and Arizona the same overall grade of C-. Maybe French novelist Jean Giraudoux is right after all, “Only the mediocre are always at their best”?
Average Joes need not apply.
Instead, at the Court’s behest, the task force was drawn from the Court itself, perhaps signaling a shift toward judges and the Court and away from the state bar hierarchy in disciplining lawyers. On the task force were bar counsel, a hearing officer, one public member, a probable cause panelist, a judge, a respondent’s counsel and board of governors representative. But in an interesting twist, the task force charged with improving the way lawyers are disciplined was chaired by two non-lawyers! Chair Dave Byers and Vice Chair Nancy Swetnam headed up the task force. The two chairs were supported by three staff lawyers from the Arizona Supreme Court and a court administrative person. What does all that suggest? It doesn’t take a fortune-teller to read those prosecutorial tea leaves.
So in the process of re-crafting lawyer punishment, there wasn’t a regular lawyer in sight. Those most affected whether past, present or future by any new rules changes weren’t part of the sausage-making.
Of course, the push-back on this contention is the presence on the task force of a State Bar Board of Governors representative and of a Respondent’s Counsel Representative but that’s small comfort. The token respondent’s counsel was one of 8 on the committee. And when the chorus of 3 staff court prosecutors and a court administrator is added, you have one voice out of twelve.
And with the perception that the Board of Governors largely rubber-stamps what the bar hierarchy wants, there’s small comfort on that front. The late Admiral Rickover once said, “If you are going to sin, sin against God, not the bureaucracy. God will forgive you but the bureaucracy won’t.”
Only now, on the back end of the process, are the opinions of the great unwashed, the bar’s constituents, being solicited on what’s pretty much a fait accompli. And coincidentally, the public comment period ends on April 1st, April Fool’s Day.
Not much attention.
If past experience is any guide, lawyers will largely wait and complain later not before. So it’s too bad the REPORT OF THE ATTORNEY DISCIPLINE TASK FORCE hasn’t garnered as much attention as it should have, given the extensive changes planned. News of the impending changes has been reported in the bar’s mouthpiece magazine, The Arizona Attorney, at Lawyer Discipline Changes Proposed, and at bar counsel dog-and-pony-shows to sell the new program to lawyers.
Fortunately, there’s a group of respondents’ counsel filing a group response countering many of the components of the new plan. But will it be enough?
The last time I can recall so radical a transformation perpetrated in a veritable vacuum was 7 years ago. I was practicing law in Nevada when the Arizona Bar again under direction of the Arizona Supreme Court allowed document-preparers to walk and quack like ducks but not act like ducks by allowing them to provide “general legal services” without supposedly breaking the commandment against unauthorized practice of law.
The Court tipped the balance in favor of the public’s access to legal services rather than the possible harm resulting from nonlawyers providing legal services. This was accomplished by the Arizona Supreme Court’s approval of the certified document preparer program in 2003 through an exemption to the rule governing the unauthorized practice of law.
Walk like a duck, quack like one, but not a duck.
Under ACJA § 7-208 , A certified legal document preparer was authorized to:
a. Prepare or provide legal documents, without the supervision of an attorney, for an entity or a member of the public in any legal matter when that entity or person is not represented by an attorney;
b. Provide general legal information, but may not provide any kind of specific advice, opinion, or recommendation to a consumer about possible legal rights, remedies, defenses, options, or strategies;
c. Provide general factual information pertaining to legal rights, procedures, or options available to a person in a legal matter when that person is not represented by an attorney;
d. Make legal forms and documents available to a person who is not represented by an attorney; and
e. File and arrange for service of legal forms and documents for a person in a legal matter when that person is not represented by an attorney.
No bright line test.
And though they supposedly aren’t practicing law, the bar does ring up additional revenues by requiring the certified document preparers to complete 10 continuing education credits annually and to pay biennial state bar licensing fees of $650.00. (Elder attorney Carrie Pickett at http://aztrustlaw.typepad.com/ecpazlaw/ has blogged about estate-planning certified document preparers at Arizona Legal Document Preparers.)
Sandra thought Jesse had her back. Well, in a way you can say he did, except he put a knife in it.
So the upshot of all this is this, does the Arizona State Bar have their lawyers’ backs? The last time Arizona lawyers didn’t pay enough attention, the above-described certified document preparer system was the result.
This time, while most lawyers will likely never have to endure the disciplinary gauntlet, the possibility is always there. “There but for the grace of God. . . “ Bradford said from the Tower of London. Therefore, Arizona lawyers should care about the proposed changes because one never knows.
Enduring the misfortune of others.
Long-time readers of this blog will recognize my love for La Rochefoucauld’s, “We all have strength enough to endure the misfortunes of others.” See, e.g., Never Mind the Misfortunes of Others.
A system that can potentially strip away a lifetime’s livelihood and a professional reputation must be given the most heightened concentration even if you think it’s something that happens to someone else not you. So while some lawyers may prefer to regard the disciplinary process as akin to incidentally enduring the misfortune of others, attention must be paid.
So to sum up, the Rule Petition’s recommended changes to establish “a system similar to the Colorado model,” which some have called “best in class,” are:
– Early engagement of the Respondent from the beginning of the process and early resolution where appropriate;
– Ongoing and detailed communication between Bar Counsel and the Complainant;
– Establishment of an independent probable cause committee, appointed by the Supreme Court, with representation by attorneys and members of the public;
– Utilization of a paid full-time hearing officer, the Presiding Disciplinary Judge, to preside over all formal cases;
– A process where a Respondent may object to the release of records the Respondent believes are privileged or confidential.
– A streamlined process for formal cases that encourages resolution of cases before the Presiding Disciplinary Judge and provides the judge with the authority to impose all sanctions, including disbarment;
– Elimination of the Disciplinary Commission review and recommendation process; replacing it with a direct appeal to the Supreme Court; and
– Appointment of counsel by the Presiding Disciplinary Judge for investigation of conflict cases.
And what’s being touted as a supposed “new” feature of the proposed system, the early resolution of cases is no innovation. It exists now. But it’s of little consequence if it’s not used. Will the new process dissuade the bar’s apparent reluctance to employ such discretion?
Consequently, a quicker hearing and faster punishment system may not necessarily be a good thing if the bar’s zealousness to presume guilt remains the same as before under a so-called ‘new and improved’ regimen.
Finally, although touted as a Colorado-like disciplinary system, the proposed Arizona rules’ changes deviate significantly from Colorado in important ways. First, trials in Colorado are private. Not so in Arizona. Second, informal reprimands in Colorado are not published. Not so in Arizona. They are treated the same as censures. This means they are also published and available on the state bar’s website. I will delve further into the new discipline rules in a subsequent post. [TO BE CONTINUED]
Photo Credits: Ronald Reagan, at Wikipedia Commons, public domain, work of U.S. government.