October 2007
PRESIDENT’S MESSAGE
LAWYER DISCIPLINE: A CRITICAL CORE FUNCTION
BY NANCY ALLF, PRESIDENT, STATE BAR OF NEVADA*
Self respect is the fruit of discipline; the sense of dignity grows with the
ability to say no to oneself.
-Abraham J. Heschel
Member participation in, and knowledge of, the disciplinary process is critical. The state bar’s regulation of lawyer discipline has prompted media coverage containing disparaging remarks about how we regulate ourselves. These recent stories prompt me to dedicate a column to the issue. Since the legal profession is self-regulating, we should expect the criticism of others and we should be ready to respond to that criticism.
Discipline reports are published monthly in the Nevada Lawyer magazine, and the press sometimes devotes additional coverage to factually unique cases or to cases involving salacious details. Recently, a story regarding the Client Security Fund prompted a story and editorial by a Las Vegas newspaper, which criticized the state bar, claiming Nevada residents made double the complaints about lawyers than did citizens of surrounding states. My response is that it is healthy for the state bar to exist in a culture where citizens feel free to air their grievances to the state bar. This is especially true, because the vast majority of the hard work delegated to the Office of Bar Counsel and the northern and southern disciplinary boards is accomplished without fanfare or public discourse.
Supreme Court Rule 104 is succinct in defining the duties of Bar Counsel, to "investigate all matters involving possible attorney misconduct or incapacity called to bar counsel's attention, whether by grievance or otherwise." In the past several years, those numbers break down as follows:
Number of grievances received:
2004 1,173
2005 1,362
2006 1,388
2007 (through July 31st) 922
Nevada has grown rapidly in these years, as has our lawyer population. From April 1, 2000, through July 1, 2006, the U.S. Census Bureau estimated that the population in Nevada grew 24.9 percent, while the U.S. population grew 6.4 percent during the same time period. The two states with which Nevada was compared (regarding rates at which complaints are made against attorneys) in the recent article were Colorado and Arizona, which grew by 10.5 percent and 20.2 percent during the same time period. Unlike in Nevada, membership in the Colorado Bar Association is not required of lawyers admitted to practice law in Colorado, and lawyers are disciplined by the Supreme Court rather than the bar association. The jurisdiction to discipline lawyers in Colorado, as in Nevada, extends to those who practice pursuant to pro hac vice admission or who practice as specially admitted lawyers. Arizona's state bar, like Nevada's, is "unified," requiring all lawyers to be members of the state bar, and it has similar jurisdiction over lawyers and a disciplinary process very similar to ours.
After grievances against Nevada lawyers are made, over 90 percent are slated for further investigation. Only when there is clearly no jurisdiction (such as complaints against judges or fee disputes), are matters closed without further review. On average, 200 or more matters per year are referred to the disciplinary boards. The two Nevada disciplinary boards consist of both lawyers and non-lawyers, and none of the boards’ members are compensated for their services.
The Office of Bar Counsel keeps track of the number of grievances lodged with it. The reported statistics on grievances can include circumstances where one person complains several times about one lawyer or cases where multiple grievants write regarding just one attorney. Very often, grievances are simply fee disputes. Because of this, you can't simply divide the number of complaints into the number of active attorneys to determine how many individual lawyers have been reported in an "X complaints received for every Y lawyers in Nevada" formula.
The mission of the disciplinary system is effected through a three-pronged philosophy: to protect the public, to promote professionalism (by educating lawyers regarding better practices when matters do not rise to the level of necessity for discipline but nonetheless could have been handled better), and early detection and assistance for lawyers who find themselves facing grievances related to personal issues like depression and addiction problems, which affect their ability to practice. Many states have formal diversion programs for lawyers. Even though Nevada does not have a formal diversion program, our rules allow for diversion in lieu of discipline. Our Lawyers Concerned for Lawyers program is appropriate in many cases, I believe, to help with these issues. The Office of Bar Counsel works from the philosophy that the reasons lawyers face grievances are relevant and should be explored, consistent with the three-prong philosophy discussed above.
Once a complaint has been received by the Office of Bar Counsel, the matter is investigated and then screened. The attorney responding to the complaint has the right to be notified and to respond to the grievance. Formal or informal hearings are then set. Formal disciplinary proceedings are commenced by Bar Counsel, which files a written complaint, in the name of the state bar, with the appropriate disciplinary board. Hearings are held within 45 days of assignment, and with at least 30 days notice to the respondent of the time and place of the hearing. Hearing panels render written decisions within 15 days of the conclusion of the hearing. All suspension or disbarment decisions are automatically appealed to the Supreme Court; appeals are taken within 30 days from other decisions.
Part of the reason that disciplinary investigations are kept confidential, even from the Board of Governors, is because of Supreme Court Rule 121, which requires that all proceedings involving allegations of misconduct by, or the disability of, an attorney shall be kept confidential (a) until the filing of a formal complaint, (b) unless the respondent attorney requests the matter be made public, (c) if the investigation is predicated upon a conviction of the attorney for a crime, or (d) in the case of disability, the attorney has obtained an order transferring to disability inactive status. All documents filed with the Supreme Court are public. Absolute immunity is afforded to participants in the discipline process.
The four main outcomes of standard disciplinary board review are dismissal (with or without cautionary language as to better practice, called a “Letter of Caution”); a “Letter of Reprimand” with or without a fine of up to $1,000 and/or restitution; suspension; or disbarment (which is now irrevocable under the new rules for formal complaints/petitions filed on or after March 1, 2007).
The Office of Bar Counsel is also tasked with many different types of investigations outside the standard review under SCR 105. These include temporary suspension, diversion/mentoring, attorneys convicted of crimes (which allows the immediate suspension of the attorney), and reciprocal discipline for attorneys who have been disciplined in other jurisdictions. Attorneys who are barred from the practice of law must notify their clients (even those not involved in legal proceedings) and wind down their practices. Orders imposing suspension or disbarment are effective 15 days after entry.
In addition to processing grievances, Bar Counsel and its staff of three lawyers has an open door policy. On a rotating basis, the Deputy and Assistant Bar Counsel take attorney ethics calls-- sometimes as many as 30 or more per day-- requesting informal assistance and advice. The toll free ethics hotline phone number is 1-800-254-2797. The policy of Bar counsel is that "the best way to handle a bar grievance is never to have one." The Office of Bar Counsel also regularly participates in Continuing Legal Education seminars and works with CLE staff to target seminars in core discipline areas. The Office of Bar Counsel has a monthly column in the Nevada Lawyer magazine. Since the highest practice areas for incidence of bar complaints are criminal defense and family law, the CLE department offers ethics CLE in these areas regularly.
Last month's Nevada Lawyer magazine included articles in response to our new rules on lawyer advertising which went into effect on September 1, 2007. I encourage you to visit the state bar's website for more details about the new advertising rules. While the rules may have changed, please note that one very important thing has not changed: the Office of Bar Counsel retains the sole jurisdiction to initiate disciplinary review of a lawyer advertiser under Supreme Court Rule 105.
The Board of Governors feels strongly that uniform and fair enforcement of all the rules of professional conduct is tantamount to the success of lawyer discipline and to maintenance of the public trust. It is also important to note that only a very small percentage of lawyers end up in the discipline system. There is much more to the disciplinary function than suspending and disbarring lawyers. We practice in a dignified profession, and if, as Heschel said, self-respect is the fruit of discipline, I respect the job that the State Bar of Nevada does in disciplining the lawyers who practice in our state.
* Written with the assistance and input of several individuals in the Office of Bar Counsel.