The Referendum: A Former Chief Disciplinary Counsel's View

 Posted on January 17, 2011 in Uncategorized

From Jim McCormack of Austin. Jim is a former General Counsel and Chief Disciplinary Counsel to the State Bar of Texas. (If you're a Texas lawyer, you've probably received Jim's emails about the referendum).A good place to start is with a "No" vote in next week's referendum.

Yesterday morning, I sent an email urging a "no" vote in the State Bar disciplinary rules referendum that will begin next Tuesday, January 18th. I set out my concerns that the proposed Texas disciplinary rules would further degrade the effectiveness of our disciplinary system by imposing new burdens and costs on a system that is already struggling. My point was that adopting these proposals is not, as some proponents have claimed, a key to our continued self-governance as a profession. In fact, it is the opposite. If we truly care about a profession that is strong enough to regulate itself, then we had better pay closer attention to how effectively our institution, the State Bar, is disciplining bad lawyers.

Late yesterday, the State Bar responded with a blast email to all Bar members stating that all of my concerns were unfounded and that the grievance system's leaders supported the new rules.

One thing is clear: someone or some entity will always regulate the legal profession. The question before us is whether lawyers, as stewards of the public interest, will regulate the legal profession or whether we will be regulated by something new created by the Texas Legislature after the Bar's next Sunset review in less than four years. If the Legislature is adequately convinced that our unique, quasi-public/quasi-private association is doing a good job of dealing with bad lawyers, then the Bar will survive largely as it is. If the Legislature is convinced that the Bar has failed to live up to its public duties as the regulatory arm of the Supreme Court, then the Legislature will act accordingly.

Four years is not much time for us to put our institution in order. This referendum is a crucial moment-and it is about a lot more than whether some badly conceived disciplinary rules are approved. We could tinker with the Texas Penal Code all we want, but if we slash funding to local prosecutors and make their work more difficult, we would not accomplish any worthwhile goal.

To my friends and colleagues at the State Bar and to the Bar's membership:

1. The Bar's blast email yesterday stated that my concerns were misplaced concerning the steadily declining number of lawyers disciplined in Texas while the attorney population of the state steadily rises (a 40% increase in the number of Texas lawyers with a 50% decline in lawyers disciplined over the last 20 years or so). The Bar's email claimed that the decline in grievances filed (an issue, but not the one that I mentioned) is because of several new programs implemented by the Bar over the Attorney Assistance Program, the Ethics Helpline, the Texas Lawyers Assistance Program, the Advertising Review Department, and the Law Practice Management Program as those programs had, in the Bar's view, contributed to fewer grievance filings.

2. Here's at least five problems with that claim:

(a) Of the five programs mentioned above, three of those˜the Texas Lawyers Assistance Program, the Ethics Helpline, and the Law Practice Management Program˜already existed when the Bar was at its peak in disciplining professional misconduct in the early and mid-1990s. Those aren't "new" programs at all. (b) I am aware of no study in which any causal connection between these various programs and the declines in grievance complaints˜and certainly, the precipitous decline in disciplinary actions˜has been established. It is not enough to simply point, vaguely, at these programs and claim that they deserve some credit for what are dramatic-and disturbing˜trends. A rigorous and business-like approach to making such a causal claim is required. That is the way that "cause and effect" works–but you have to prove it. We should not have a "faith-based" disciplinary system in which "it is what it is because we say it is." (c) The Client-Attorney Assistance Program (CAAP) is one of the programs touted as most responsible for the remarkable decline in complaint filings. This is another program that has had no rigorous examination of its methods, including whether it is discouraging people from filing grievances that should be filed or ignoring actual misconduct in favor of "mediating" potential complainants away from the disciplinary system. The CAAP program may be like so many other programs in the world; untested, unchallenged, and inadvertently achieving outcomes that no one should want. I recently reviewed the CAAP "training" manual and was not encouraged. (d) The Bar's reply sidestepped completely my point that the number of lawyers has increased by 40% while the number of disciplinary actions has decreased by 50%. While the decreased number of complaints filed may be a factor in the dramatically lower number of disciplinary actions at the other end of the process, the Bar's current theory has to be that the disciplinary system was disciplining large numbers of innocent lawyers in the mid-1990s and has now stopped doing that. Otherwise, the Bar's theory that it has, with the help of these "new" programs, decreased the number of non-meritorious complaints but is still prosecuting all valid complaints, doesn't make sense. Why the drop in the number of disciplinary actions if all the Bar has done is force frivolous complaints out of the system at the front-end? Even with fewer complaint filings, one would expect the remaining complaints to produce roughly the same number of disciplinary actions each year˜and that number should, predictably, increase as the Texas lawyer population increases over time. (e) It is important not to ignore the elephant in the room. Fact: The Bar cut the disciplinary system's funding by roughly $1 million several years ago. Fact: The disciplinary system staff was slashed by 20% to 25% at the same time. Fact: The disciplinary system's investigating offices in El Paso, Harlingen, Tyler, and Midland and its Regional Office in Fort Worth were all closed. The number of disciplinary actions started falling quickly after that. The Texas Supreme Court's own Grievance Oversight Committee has repeatedly expressed its concerns that the disciplinary system has been critically crippled by these developments and may be underperforming (see the GOC's Annual Reports at www.txgoc.com). Why are these not the "causes" for the resulting "effect": a diminished disciplinary system that is struggling to do what it can with significantly fewer resources? If the Bar cannot afford the disciplinary system we need, what should we do about that? Should we start with burdening it with more rules?

3. It is crucial not to "drink the Kool-Aid." Groupthink and sunk cost advocacy are recipes for disaster with respect to these proposals˜and for the institution of the Bar, as its review by the Legislature looms in less than four years. If we really need new disciplinary rules, we can start this process over˜once Texas attorneys vote down these proposals. But, regardless of that outcome, we have a bigger problem on the near horizon˜and time is short.

Vote "No" in next week's referendum.

Jim McCormackPO Box 2505Austin Texas 78768United States