A special American Bar Association committee has proposed streamlined, more open disciplinary procedures to replace those in most parts of the country that are heavily weighted in favor of errant attorneys.
The proposal, released today at the ABA's annual meeting here, recommends that non-lawyers be included on disciplinary boards and that all proceedings be open to the public once an investigation shows the probability that a lawyer has committed a misdeed.
Currently, one-third of the states include non-lawyers on their disciplinary boards and half keep proceedings against lawyers secret until the final stage. Moreover, the process is tilted in favor of the lawyer by giving him or her as many as three levels of secret hearings before any discipline may be recommended.
These systems "provide more due process for a lawyer than for someone accused of a capital crime, and we thought that was excessive," said Michael Frank, executive director of the Michigan State bar and chairman of the ABA group that drafted the proposal.
The ABA's board of governors and the National Organization of Bar Counsels -- a group of local bar officials in charge of lawyer discipline -- both recommended Thursday that the ABA's policymaking House of Delegates adopt the rules at its meeting here next week. But before taking effect the rules will have to be approved by the high courts of each state, which have the responsibility for regulating lawyers' conduct in their jurisdictions.
Some of these recommendations have been adopted by state courts. In Washington, for instance, non-lawyers were included on the disciplinary board a year ago and all but the first two stages of the proceedings are open to the public. Under the new recommendations though, one of these two stages -- a preliminary hearing by a three-lawyer panel -- would be eliminated.
Sweeping changes in the way lawyers discipline other members of their profession have come about since 1970 when a special ABA committee headed by the late Supreme Court justice Tom C. Clark called lawyer discipline "a scandalous situation."
"With few exceptions," the Clark committee reported, "the prevailing attitude of lawyers toward discipline enforcement ranges from apathy to outright hostility. Disciplinary action is practically nonexistent in many jurisdictions; practices and procedures are antiquated, and many disciplinary agencies have little power to take effective steps against malefactors."
The ABA reported 18 months ago that the Clark committee report resulted in some improvement, but that further change was necessary to make sure the public is protected from bad lawyers and to improve public confidence in lawyers.
While no recent figures are available, ABA statistics show that twice as many lawyers were disciplined in 1973 as were in 1970.
But a deputy director of the Justice Department's antitrust division, Richard T. Favretto, said today that lawyer discipline remains tilted toward "leniency and discrimination.
"Such is the inevitable nature of any system where the regulators are themselves the regulated. The public is aware of this, and justifiably cynical of it."
The proposals are designed to cut the time it takes to decide if a lawyer has committed a misdeed and to make sure the person who filed the complaint knows what's going on at every stage of the proceeding -- answers to two of the most common public complaints about lawyer discipline.
One provision that is expected to be debated by the ABA House of Delegates would allow investigators to make random checks into bank accounts held by lawyers for clients to make sure the client's funds are protected.