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New disciplinary direction

Accused and accusers figure to benefit from proposed changes to the attorney discipline system, members of the State Bar of Arizona say.

They use the word “streamline” to describe efforts to speed up the process of determining if complaints from the public are worthy of pursuing. They also talk about fairness. In addition, the goal is to resolve the more serious issues promptly so lawyers accused of misdeeds will know their fate sooner.

The Arizona Supreme Court last July ordered the creation of an eight-member Attorney Discipline Task Force to recommend changes designed to improve the quality and timeliness of the disciplinary process. The group, led by Dave Byers, director of the Administrative Office of the Courts, borrowed heavily from the Colorado court system’s best practices.

Scott Rhodes of Jennings Strouss & Salmon, who frequently represents fellow lawyers facing Bar inquiries, is troubled by the existing system.

“The perception among many lawyers is that the Bar counsel works for the Bar and the probable cause panelist is a member of Board of Governors that oversees those people — that relationship is too close,” he says.

The new system, Rhodes says, should result in “more confidence to both sides — to lawyers and the public about the fairness of the process.”

Rhodes, who was the respondents’ counsel representative on a task force that drew up the proposed changes, says the new rules will be a substantial improvement for everyone involved. “It encourages communication between the State Bar counsel and the respondent lawyers at an earlier stage and it encourages early resolution of cases,” Rhodes says. “It gives the Bar more tools for resolving cases earlier that don’t involve serious misconduct.”

The new system provides for more public input in the various stages of the process. There will be public members on the Attorney Discipline Probable Cause Committee, who will help decide whether formal complaints should be filed against a lawyer. And public members will serve on hearing panels that are assigned to those formal cases.

At the probable cause level, which is the next step after an initial review of complaints, under the existing system the decision whether the case should proceed is up to one individual — a member of the State Bar Board of Governors. The proposed system establishes a nine-member independent Attorney Regulation Committee consisting of six attorneys and three public members, all appointed by the Arizona Supreme Court.

One of the advantages of the new system is that it will shift Bar resources to the front-end of the system where an initial review of all charges takes place. Statistically, most charges represent either no violation or very low-level violations of the rules that don’t necessarily require a disciplinary sanction, says Maret Vessella, chief counsel for the State Bar.

“It is important to identify early those cases that should be removed or diverted from the system,” she says. “When I say diverted, the State Bar has a diversion program that is an alternative to a disciplinary sanction. The idea is that a great deal of rule violations occur because a lawyer lacks solid law office management skills, specific education in an area or may have other personal issues affecting their practice. We have quite a few programs that are designed to address these areas. Once the lawyer has completed the diversion program, the matter against that lawyer is dismissed.”

Additionally, Vessella says, the system “promotes moving the more serious allegations of misconduct into a full investigative posture and allows more time and attention to be devoted to those cases.”

So, will lawyers be better protected from frivolous complaints? Vessella expresses her doubts. “The truth is that no system will really keep a determined consumer from filing weak or frivolous charges against lawyers,” she says. “The new system is designed to weed out those types of charges much more efficiently so we can concentrate on cases that may deserve more attention.”

Rhodes agrees: “It won’t affect at all complaints against lawyers. We’re trying to make it easier for members of the public to know how to complain against a lawyer. Most complaints are frivolous, but that doesn’t mean we should put roadblocks up to making those complaints. We need a good system to filter out what is frivolous. We want members of the public to feel comfortable and know how to call the State Bar and complain or inquire about a lawyer.”

In fact, Rhodes says the new system might even result in an increase of complains against lawyers. “But in terms of lawyer protection and due process, it’s better because the probable cause panel of nine will replace a single individual.”

Under no circumstances, key attorneys say, is the effort to quicken the pace intended to give complaints a cursory once-over or to protect errant lawyers.

Alan Bayham, incoming president of the State Bar of Arizona, responds to a suggestion that the Bar goes out of its way to protect its own. “I completely disagree with that. I think the Bar is harder on its own than any other profession. No other profession requires a professional to inform a client when they have a problem and advise the client of the particulars of it.”

Bayham, of the law firm of Bayham Jerman, PLC, says the proposed changes will give lawyers better protection because of the initial aggressive front-end effort. “From a lawyer’s perspective, initially the idea is to put a lot of resources at the beginning of the process, to intervene early and get it resolved quicker,” Bayham says, “before it gets to be worse between client and lawyer and results in more serious discipline.”

At the same time, the proposed system will be more public friendly with more interaction, says Bayham, who sat for a year as a probable cause panelist. “This new system should be a great source of comfort to the public,” he says. “It will be fair to all participants.”

Regarding a question of whether streamlining the process will still enable all complaints to receive proper attention, Bayham says, “That’s a question of due process and whether there are safeguards built into the system to make sure that both sides are treated fairly. We believe the system does that in very good way. The probable cause level is a perfect example of that.”

Speeding up the process has been a long-time goal of the Bar, says Vessella. “For the past 10 years or so, the State Bar and the court have worked to increase efficiencies in the processing of discipline cases,” she says. “Not only do we need to make sure that lawyers who have engaged in serious misconduct are not able to do more harm, but we also need to make sure that consumers feel their concerns are handled with care and efficiency.”

Vessella is particularly supportive of the change that gives the public more input. “I like the notion that a system (lawyer regulation) that exists for the protection of the public so widely also includes public participation,” she says. “Members of the public will serve important roles in determining what matters result in a sanction, and which ones should be dismissed.”

Rhodes says the general hope in the legal community is that the Bar’s resources will be focused more on serious cases of misconduct — on lawyers “who have really done harm to the public or are at risk of harming the public.”

In many cases, Rhodes says, the lawyer is really not a bad person. “The complaint simply reflects a mistake, sometimes a very good-faith mistake,” Rhodes says. “Or, maybe a good lawyer is going through a period in life-issues that affect the lawyer’s practice.”

Those stressful issues, he says, could include alcohol or substance abuse, marital problems, health problems or a death in the family. “Being a lawyer is a very stressful profession, and the responsibilities don’t stop,” Rhodes says. “It’s important to get these complaints resolved early, to help the attorney to get assistance, and not be removed from his or her practice.”

Under the current system, communication between the Bar counsel and the complainant is not as structured as it should be, Rhodes says. “Form letters provide no real explanation on what’s happening,” he says.

To that concern, Vessella says, “Making members of the public a part of the process will simply give consumers greater confidence in the system. Also, the new rules will promote more communication with someone who has complained. It will make sure they have more input earlier in the process.”

Vessella, who has been involved in lawyer regulation for 15-plus years, rejects the notion that the Bar’s aim is to protect lawyers from unjust complaints.

“Lawyer regulation has never been about protecting lawyers,” she says. “I see all the consumers who have been protected by our work. Lawyers have been suspended or disbarred because they were a serious threat to consumers. Other lawyers have been diverted into educational programs or given probation that allows us to keep watch over their practice. Our main responsibility is to protect the public. By taking actions against the few lawyers who have problems, we also protect the large majority of attorneys who are living up to the highest ethical standards.”

Vessella says she is optimistic that the proposed changes will make an already good system great.

“It would, however, be foolish to think that there will not be some growing pains and necessary adjustments along the way,” she says. “The task force brought together stakeholders from all parts of the disciplinary system. Their work demonstrated to me that all those groups can work together to make sure the new system is fair, efficient and just.”

Attorney Discipline Task Force

Members of the court-ordered task force that drafted proposed changes to the lawyer discipline process included: Chair Dave Byers, director, Administrative Office of the Courts; Vice Chair Nancy Swetnam, Administrative Office of the Courts; Alan Bayham, State Bar of Arizona probable cause panelist and Board of Governors representative; Don Carson, public member; H. Jeffrey Coker, Arizona Supreme Court hearing officer representative; Jeffrey Messing, Arizona Supreme Court Disciplinary Commission representative; Scott Rhodes, respondents’ counsel representative, and Maret Vessella, chief counsel, State Bar of Arizona.

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