Lessons Learned from True Stories of Lawerly Lapses

Richard L. Abel, author of "Lawyers in the Dock: Learning From New York Disciplinary Proceedings"

The problem, said Richard L. Abel, is trust, or rather the lack of it. "The degree of trust that lawyers enjoy in the first part of the 21st century is exceedingly low," the UCLA law school professor said in a UB Law School presentation. "The profession itself should be very concerned about the ways it has lost the trust of the public and what it will take to restore it."

One way to restore the public's trust in the legal profession, Abel said, is to examine the ways lawyers are disciplined when they go wrong. He did just that in researching his new book, Lawyers in the Dock: Learning From New York Disciplinary Proceedings (Oxford University Press), and entertained a Baldy Center for Law and Social Policy audience on Nov. 19 with some true stories of lawyerly lapses.

For example, there was the lawyer who moved from Buffalo to New York City and took on hundreds of immigrant asylum cases, all without bothering to use a calendar. "Maybe if you brought in your desk calendar, we could clarify why you keep missing these appearances," a judge once told him. "Your honor, what is a desk calendar?" the lawyer replied. Case after case fell through, Abel said, and even the judges got angry at this attorney for fumbling cases that easily could have been won. Brought up on neglect charges, the lawyer was disbarred.

Then there was the woman who filed a sexual discrimination lawsuit, and began working as a paralegal assisting the lawyer who was handling her claim. In a motion conference, she came upon a four-inch stack of papers – the complete file of her case, left accidentally on a table by the respondent's counsel. She and the lawyer made a stack of photocopies before returning the file. The judge, who had been sympathetic to the woman's claim, dismisses the case with prejudice, calling it "fatally compromised."

And the lawyer handling a case for a friend who, following an unfavorable tax court ruling, found himself owing $200,000 in back taxes. They made an oral agreement that the lawyer's fee would be no more than $20,000. Over a period of time, the lawyer negotiated the tax bill down to $15,000. The client gave him a bank deposit slip and a signed blank check, then left the country on business. The attorney kept negotiating until the tax-due bill turned into a $50,000 refund – which he deposited in the client's bank account, waited until the check cleared, wrote himself a check for $53,000, and sent the client – his friend – a bill for exactly that amount. A disciplinary hearing ended with a one-year suspension.

To explore how the Appellate Division of State Supreme Court disciplines lawyers, Abel examined thousands of pages of transcripts from disciplinary proceedings, finally homing in on three areas of misconduct: neglect, misuse of client funds, and overzealous advocacy. "Most of these cases involve solo and small-firm practitioners," he noted. Another common element: Only rarely do the attorneys involved admit guilt.

"Most of these cases are about money," Abel said. "It is about greed and need. But a fair amount of this behavior is motivated by the desire to be a helper. Law is a helping profession, and these lawyers wanted to help their clients and receive their gratitude.

"Most of these lawyers were totally convinced of their own righteousness. They had no idea they had done anything wrong."

In attempting to better enforce an ethical code, Abel said, the legal profession has tended toward three solutions: refining the rules under which lawyers operate; better educating lawyers on their professional responsibilities; and passing more stringent regulations.

But none of those solutions, he said, has proved effective. Instead, he proposed six ways that the profession could influence lawyers to behave more ethically:

• Technological fixes, such as calendar systems.
• Publicizing the names of wrongdoers. "What these lawyers fear more than anything else is publicity," Abel said. "While the profession is huge, lawyers operate in a small circle of people who know them."
• Insurance requirements. Only one of the 50 state legal jurisdictions requires lawyers to carry malpractice insurance, Abel said.
• Noting that law firms "have an interest in and the capacity to prevent these kinds of practices," he proposed, "at least as a thought exercise," that solo practices might be outlawed.
• The legal market also serves as a regulator, Abel said: "Can we mobilize consumers and intermediaries?"
• Finally, self-regulation can be strengthened.

"It would be hard to do much worse than we currently do about lawyer misconduct," Abel said. "Anybody looking at this process from the outside would be appalled at how poorly it ensures quality legal services."

But the importance of getting lawyer discipline right cannot be overstated, he said: "Lawyers are the interface between the public and the legal system. What they do is critically important for the function of the system and the perception of the lay public."