Lawyers, Clients, and Professional Regulation

Eric H. Steele; Raymond T. Nimmer

doi:10.1111/j.1747-4469.1976.tb00961.x

1 See, e.g., American Bar Association Special Committee on Evaluation of Disciplinary Enforcement (Tom C. Clark, Chairman), Problems and Recommendations in Disciplinary Enforcement (Final Draft, June 1970) thereinafter cited as Clark Report], Ad Hoc Committee on Grievance Procedures, The Association of the Bar of The City of New York (Leon Silverman, Chairman), Report on the Grievance System (1976) thereinafter cited as Silverman Report]; Hearing Before the Subcomm. on Representation of Citizen Interests of the Senate Comm. on the Judiciary, 93d Cong., 2d Sess. (1974) thereinafter cited as Senate Judiciary Comm. Hearing]; Paul Carrington, The Ethical Crises of American Lawyers, 36 U. Pitt. L. Rev. 35 (1974); John W. Sheppard, The Lawyer's Ethical Response, 49 Fla. B.J. 184 (1975); John Thomason, What the Public Thinks of Lawyers, 46 N.Y. St. B.J. 151 (1974); The Bar and Watergate: Conversation with Chesterfield Smith, 1 Hastings Const'l L.Q. 31 (1974).Google Scholar

2 Our initial intent was to study national patterns of disciplinary agency performance. While this objective was partially fulfilled, its full realization was impossible from the outset because of the general unavailability of pertinent data. See Clark Report, supra note 1, at 77–81.Google Scholar

The unavailability of data is an old problem in this area. It was called to public attention by a national survey of the legal profession in the mid-1940s and reiterated in the Clark Report. Many disciplinary agencies do not retain complaints received or systematic records of them. Many that do retain such records cloak them in confidentiality and report neither gross numerical totals nor qualitative descriptions of any sort. Many of the disciplinary sanctions that are imposed are covered by confidentiality; even final orders of discipline are not published in supreme court or bar association reports in all states. Routine reports of disciplinary sanctions typically contain little information about the lawyer or the offense.Google Scholar

One recently developed resource responds to the data problem. The ABA National Discipline Data Bank, a product of a Clark Report recommendation, is a central record of formal disciplinary sanctions imposed in each state. Clark Report, supra note 1, at 156–60. The origin of the Data Bank is discussed in Edward L. Wright, President's Page, 57 A.B.A.J. 391 (1971). Although the data are both limited and confidential, access to gross totals of disciplinary sanctions imposed was granted for the purposes of this study. These data facilitated an under-standing of gross national patterns. However, the reliability of the Data Bank is open to question due to apparently incomplete reporting of disciplinary action to the Data Bank by the various jurisdictions.Google Scholar

The discussion that follows is based on the following data sources: (1) complaint and disposition information supplied by approximately 20 state agencies responding to a mail survey; (2) the ABA National Discipline Data Bank; (3) annual reports of agencies when available; (4) a screening survey primarily intended to identify clients who had experienced serious problems with attorneys; (5) interviews with some of the clients identified by the screening survey to determine the nature of the problem and the response to it; and (6) intensive examination of case flow and disposition patterns in one major disciplinary agency that afforded access to its records for this study.Google Scholar

3 E.g., Goldfarb v. Virginia State Bar, 421 U.S. 773 (1975) (concerning minimum fee schedules); the Employee Retirement Income Security Act of 1974 (ERISA), 29 U.S.C. sec. 1144(d) (Supp. IV, 1975) and its effect on prepaid legal insurance, as discussed in Werner Pfennigstorf & Spencer L. Kimball, Employee Legal Service Plans: Conflicts Between Federal and State Regulation, 1976 A.B.F. Res. J. 787; recent proposal by ABA Standing Committee on Ethics and Professional Responsibility to remove the ban on advertising (see, e.g., 20 ABA Am. B. News, at 1 (No. 8, Dec. 1975)); Senate Judiciary Comm. Hearing, supra note 1.Google Scholar

4 The Clark Report, supra note 1, for instance, presents a stinging and powerful critique of disciplinary enforcement practices but almost totally adopts, without examination, the traditional assumptions as to the role and structure of professional regulation.Google Scholar

5 The exceptions include Delaware, Iowa, and Ontario, Canada. See Edmund N. Carpenter II, The Negligent Attorney Embezzler: Delaware's Solution, 61 A.B.A.J. 338 (1975); Iowa Sup. Ct. R. 121.3 & 121.4; The Law Society Act of 1970, c. 19, secs. 19–22, Ont. Rev. Stat. c. 238, secs. 19–22 (1970) (Can.); James H. Manahan, Lawyers Should Be Audited, 59 A.B.A.J. 396 (1973). Other jurisdictions on occasion pursue intensive investigations of particular attorneys or practices but these have seldom become institutionalized or more than one-shot short-term affairs.Google Scholar

6 The tension between the disciplinary perspective of the profession and the contract-oriented perspective of complainants is illustrated by the comments of the nonlawyer member of the Washington Discipline Board:Google Scholar

During my time on the board, I have tried to analyze whether there is a pattern to lawyer-member reaction and to nonlawyer-member reaction. There are some differences in outlook and emphasis, and this is healthy.Google Scholar

We differ in our reactions to specific cases. Certain breaches of etiquette don't offend me nearly as much as they do my colleagues …. I find my attention focusing on how the client is served, rather than on the lawyer's violation of the Canon.Google Scholar

….Google Scholar

On the other hand, I react strongly to those cases in which a client has been damaged because of a lawyer's negligence or lack of communication. The majority of the cases coming before us deal with such minor infractions, which demonstrate lack of sensitivity and consideration toward clients, rather than actual wrongdoing.Google Scholar

It is in these cases that lawyer members manifest more empathy than I can muster. They identify with the attorney and are inclined to say, “This could happen to me. Mea culpa-I, too, have forgotten, neglected, been uncommunicative.” Their emphasis is on “understanding” the lawyer, and mine is to consider the client's frustration, aggravation and predicament.Google Scholar

Edith Lobe, Confessions of a Non-Lawyer on a Discipline Board, 1 B. Leader 17, 18 (Nov. 1975).Google Scholar

7 Even where there are laymen on the decision-making boards, typically they are appointed by the judiciary or the profession. Laymen serve on disciplinary boards in Colorado, Georgia, Maine, Michigan, Minnesota, New Hampshire, Washington, and Wisconsin. 1 B. Leader 9 (Mar.-Apr. 1975). In California, laymen will serve on the Board of Governors of the State Bar as well as the disciplinary board. 1 B. Leader 7 (Nov. 1975); cf. Silverman Report, supra note 1, at n.35.Google Scholar

8 The first such code was the Canons of Ethics of the Alabama Bar Association (1887), followed by the ABA Canons of Ethics (1908) and the ABA Code of Professional Responsibility (1969). The history of legal ethics codes is discussed in Henry S. Drinker, Legal Ethics 23–26 (New York: Columbia University Press, 1953).Google Scholar

9 In addition, indefinite suspension or inactive status is used in a few states in cases of disability (such as alcoholism, senility, and mental or physical illness). We do not discuss these forms of sanction or probation because of their infrequent use. The ABA National Discipline Data Bank also omits them.Google Scholar

10 Ex parte Wall, 107 U.S. 265, 288 (1882) (holding that due process did not entitle a lawyer to indictment and jury trial in a disciplinary proceeding). See also Albert P. Blaustein & Charles O. Porter, The American Lawyer: A Summary of the Survey of the Legal Profession 253 (Chicago: University of Chicago Press, 1954); Orie L. Phillips & Philbrick McCoy, Conduct of Judges and Lawyers: A Study of Professional Ethics, Discipline and Disbarment 86 (Los Angeles: Parker & Co., 1952); Drinker, supra note 8, at 3342; George W. Warvelle, Essays in Legal Ethics 43–44 (Chicago: Callaghan & Co., 1902); Robert T. McCracken, The Maintenance of Professional Standards: Duty and Obligation of the Courts, 29 S. Cal. L. Rev. 65, 73 (1955); Russell D. Niles & Judith Smith Kaye, Spevack v. Klein: Milestone or Millstone in Bar Discipline? 53 A.B.A. J. 1121 (1967); W. Warren Cole, Jr., Bar Discipline and Spevack v. Klein, 53 A.B.A.J. 819 (1967); Michael Franck, The Myth of Spevack v. Klein, 54 A.B.A.J. 970 (1968); Comment, The Objectives of Attorney Discipline: A Pennsylvania View, 79 Dick. L. Rev. 558 (1975).Google Scholar

11 See, e.g., Clark Report, supra note 1, at 2–3.Google Scholar

12 The disciplinary process has come to be defined more explicitly as a process of quasi-criminal prosecution, adjudication, and punishment. The opinion in Spevack v. Klein, 385 U.S. 511 (1967), holds disbarment to be a “penalty” bringing into play the fifth amendment right against self-incrimination. Disciplinary personnel have come to use avowedly criminal law language in discussing the “indictment,”“prosecution,”“trial,”“conviction,” and “sentencing” of lawyers by the disciplinary system. Even the sparse case law has started to apply constitutional requirements of due process and give some of the rights of criminal defendants to lawyers subjected to the disciplinary process. Lawyers being judged by their peers in disciplinary proceedings have been granted rights to fair notice of hearing and charges, to cross-examine and confront witnesses, to present evidence, and to take the fifth amendment. Id. (no penalty for using fifth amendment privilege against self-incrimination in disciplinary hearings); In re Ruffalo, 390 U.S. 544, rehearing denied, 391 U.S. 961 (1968) (attorney entitled to fair notice of charges); In re Murphy, 387 Mich. 632, 198 N.W. 2d 289 (1972) (right to cross-examine witnesses); In re Ming, 469 F. 2d 1352 (7th Cir. 1972) (due process requires notice of hearing and opportunity to confront and cross-examine witnesses in disciplinary proceeding); Erdmann v. Stevens, 458 F. 2d 1205 (2d Cir.), cert. denied, 409 U.S. 889 (1972); In re Krogh, 85 Wash. 2d 462, 536 P. 2d 578 (1975); In re Bogart, 386 F. Supp. 126 (S.D.N.Y. 1974); Note, Constitutional Law-The Right to a Jury Trial in Disbarment Proceedings, 68 Mich. L. Rev. 604 (1970). As one recent opinion stated: “Disbarment, designed to protect the public, is a punishment or penalty imposed on the lawyer. He is accordingly entitled to procedural due process, which includes fair notice of the charge ….Google Scholar

“These are adversary proceedings of a quasi-criminal nature.”In re Ruffalo, supra at 550–51 (citations omitted). Spevack v. Klein, supra, may go even further and view disciplinary proceedings as fully criminal in nature.Google Scholar

13 Clark Report, supra note 1, at 97–98.Google Scholar

14 Roscoe Pound, The Lawyer from Antiquity to Modern Times 232–42 (St. Paul: West Publishing Co., 1953).Google Scholar

15 As early as 1790-well before the Jacksonian period-Massachusetts allowed any person to appear in court for another. In the 1840s and 1850s New Hampshire, Maine, and Indiana opened membership in their bars to all citizens, voters, or residents. See discussion and citations in Erwin N. Griswold, Law and Lawyers in the United States: The Common Law Under Stress (Cambridge, Mass.: Harvard University Press, 1964).Google Scholar

16 Lawrence M. Friedman, A History of American Law 550 (New York: Simon & Schuster, 1973) suggests an unfulfilled longing for the honor and security of the English bar. Alexis de Tocqueville observed that the legal profession had a special elite status and image in the United States when he visited in the first Jackson administration, before what Pound referred to as the period of deprofessionalization:Google Scholar

In America there are no nobles or literary men, and the people is [sic] apt to mistrust the wealthy; lawyers consequently form the highest political class, and the most cultivated circle of society …. If I were asked where I place the American aristocracy, I should reply without hesitation, that it is not composed of the rich, who are united together by no common tie, but that it occupies the judicial bench and bar.Google Scholar

2 Alexis de Tocqueville, Democracy in America 109–10 (Henry Reeve, trans. 3d ed., London: Saunders & Otley, 1838). Roscoe Pound called this the “Golden Age” of American law. Pound, supra note 14, at 185. See generally Roscoe Pound, The Formative Era of American Law (Boston: Little, Brown & Co., 1938) and Griswold, supra note 15. Pound's conception of what the legal profession ought to be was shared by the creators of the current bar organizations beginning in the 1870s. In 1870 the first modern bar association, The Association of the Bar of The City of New York, was founded. One of the Association's purposes, stated in its constitution, was “to maintain the honor and dignity of the profession.” 1 Rep. Ass'n of the Bar of The City of New York 32–35, in Pound, supra note 14, at 256. Other bar associations created during the 1870s and later, including the American Bar Association (1878), shared an interest in reform and in improving both the image and the performance of the profession. See Pound, supra note 14, at 253–69; Friedman, supra at 561–66; Griswold, supra note 15; Drinker, supra note 8; Charles Warren, A History of the American Bar (Boston: Little, Brown & Co., 1911); Blaustein & Porter, supra note 10; Phillips & McCoy, supra note 10; James Willard Hurst, The Growth of American Law: The Law Makers (Boston: Little, Brown & Co., 1950); Edson R. Sunderland, History of the American Bar Association and Its Work (Chicago: American Bar Association, 1953); Glenn R. Winters, Bar Association Organization and Activities: A Handbook for Bar Association Officers, (Ann Arbor: American Judicature Soc'y, 1954); Spencer L. Kimball, Historical Introduction to the Legal System (Ann Arbor: Overbeck Co., 1961); Philip J. Wickser, Bar Associations, 15 Cornell L.Q. 390 (1930).Google Scholar

Others have commented on the elitist tendencies-perhaps related to the desire to improve the image of the profession-that they perceive in modern bar associations from the 1870s to the present.Google Scholar

Carlin's work suggests the elitist orientation of bar ethics rules and their enforcement. Jerome E. Carlin, Lawyers' Ethics: A Survey of the New York City Bar (New York: Russell Sage Foundation, 1966). Similarly, it has been suggested that the “character and fitness” requirements for bar admissions, while intended in general to assure quality, often operate simply to discriminate against political and social nonconformists. Comment, Controlling Lawyers by Bar Associations and Courts, 5 Harv. Civ. Rights-Civ. Lib. L. Rev. 301 (1970); Vern Country-man & Ted Finman, The Lawyer in Modern Society 822–84 (Boston: Little, Brown & Co., 1966); Note, Attorney Discipline and the First Amendment, 49 N.Y.U.L. Rev. 922 (1974); Jerold S. Auerbach, Unequal Justice: Lawyers and Social Change in Modern America (New York: Oxford University Press, 1976); Friedman, supra at 561–66.Google Scholar

17 Others have suggested that public antagonism toward lawyers has much deeper and subtler roots. E.g., David Riesman, Toward an Anthropological Science of Law and the Legal Profession, 57 Am. J. Sociol. 121, 124 (1951), reprinted in his Individualism Reconsidered and Other Essays 440, 450 (Glencoe, Ill.: Free Press, 1954). We suggest that, whatever the various factors relating to the general attitudes of the public toward lawyers may be, many individual dissatisfactions expressed by clients arise from concrete and specific service-related disputes with their lawyers that can best be described as contractual in nature.Google Scholar

18 Clark Report, supra note 1, at 2–3, 8. See also Thomason, supra note 1, and David K. Robinson, The Bar, PR and Discipline, 33 Ore. St. B. Bull. 19 (Nov. 1972).Google Scholar

19 See Carlin's discussion of the “inner disposition to conform,” social organization, situational inducements, and facilitating processes as factors in the genesis of norm violation (Carlin, supra note 16, at 165–76) and Douglas E. Rosenthal, Lawyer and Client: Who's in Charge? (New York: Russell Sage Foundation, 1974).Google Scholar

20 F. Raymond Marks & Darlene Cathcart, Discipline Within the Legal Profession: Is It Self-Regulation? 1974 U. Ill. L.F. 193 (advocating disciplinary enforcement of attorney competence). Cf. E. Wayne Thode, Canons 6 and 7: The Lawyer-Client Relationship, 48 Tex. L. Rev. 367 (1970); R. F. Outcault, Jr., & George E. Peterson, Lawyer Discipline and Professional Standards in California: Progress and Problems, 24 Hastings L.J. 675, 692–96 (1973); Harold Brown, A.B.A. Code of Professional Responsibility: In Defense of Mediocrity, 16 Cath. Law. 314 (1970).Google Scholar

21 Marks & Cathcart, supra note 20, at 197.Google Scholar

22 Continuing legal education is now required in Iowa and Minnesota and is being considered elsewhere. 1 B. Leader 10 (Nov. 1975); Paul A. Wolkin, A Better Way to Keep Lawyers Competent, 61 A.B.A. J. 574 (1975).Google Scholar

23 Richard F. Zehnle, Specialization in the Legal Profession (Chicago: American Bar Foundation, 1975) and materials cited therein.Google Scholar

24 E.g., Argersinger v. Hamlin, 407 U.S. 25 (1972); Warren E. Burger, The Special Skills of Advocacy: Are Specialized Training and Certification of Advocates Essential to Our System of Justice? 42 Fordham L. Rev. 227 (1973); Irving R. Kaufman, The Trial Lawyer: The Legal Profession's Greatest Asset, 50 A.B.A.J. 25 (1964), and his The Court Needs a Friend in Court, 60 A.B.A.J. 175 (1974); David L. Bazelon, The Defective Assistance of Counsel, 42 U. Cin. L. Rev. 1 (1973); The Legal Profession and Professional Competence, address by Chesterfield Smith to National Conference of Bar Presidents, Feb. 2, 1974.Google Scholar

25 Marks & Cathcart, supra note 20, at 229–30 and n.67.Google Scholar

26 One example of this approach is the client security fund, which we will discuss later in this article; see pp. 1009–11 infra. While conceptualized as compensatory institutions to aid injured clients-and thus potentially dramatically unlike other regulation schemes-most client security funds explicitly require a formal disciplinary finding of misconduct or deviance before a claim can be considered and thus are not remarkably different.Google Scholar

27 See text at pp. 949–64 infra.Google Scholar

28 Clark Report, supra note 1, at 186–91.CrossRef Google Scholar

29 Id. at 1.Google Scholar

30 Carlin indirectly measured attorney compliance with bar norms and reported his findings in Lawyers' Ethics, supra note 16. See also Joel F. Handler, The Lawyer and His Community: The Practicing Bar in a Middle-Sized City (Madison: University of Wisconsin Press, 1967). The complexity of the measurement of compliance of lawyers makes it impractical to repeat the measurement periodically and in numerous locations, which would be necessary to measure changes in compliance.Google Scholar

31 The data concerning pre-Clark Report procedures and financing were obtained primarily from Joyce Eriks, Special Committee on National Coordination of Disciplinary Enforcement, A Summary of the Disciplinary Procedures in the Fifty States (ABA Department of Professional Standards, Jan. 1971). This summary was compiled from testimony presented to the Clark Committee during regional hearings in 1968. Other original data collected and compiled by the Clark Committee were not available for this study, but supplementary material was obtained from a few states in response to our direct inquiries.Google Scholar

Data concerning post-Clark Report patterns were compiled primarily from surveys conducted by the American Bar Association, but were supplemented by a project survey to which 18 states responded. The first ABA source was the ABA Special Committee on National Coordination of Disciplinary Enforcement (Henry Pitts, Chairman), which in 1971 mailed a survey entitled “Checklist for Disciplinary Enforcement” to the 50 states and the District of Columbia. Among other data, the survey requested and generally obtained information on the size of the professional grievance staff, the budget allocation for grievance matters, and state compliance with several of the recommendations from the Clark Report. In August 1972 the Committee pre-pared “a factual report describing what it understands to be the status of disciplinary enforcement in each of the states.” The second ABA survey was conducted by the ABA Standing Committee on Professional Discipline (S. Shepherd Tate, Chairman), which in 1973 mailed an identical survey to all the states. A third source was developed in 1975 when the ABA's Center for Professional Discipline collected information from the state disciplinary agencies to update these committee surveys. Some additional budget and staff information has been obtained from Chairman Tate in his speech, “Are We Serious About Modernizing Bar Discipline?” delivered Feb. 21, 1975, to the National Conference of Bar Presidents. We were also granted limited access to the ABA National Discipline Data Bank, which reports sanctions imposed in all the states (see note 2 supra).Google Scholar

Despite the numerous sources, the data are incomplete. A number of the states did not respond to all of the ABA surveys; for nine states, complete information on the pre-Clark Report status was not available. A further limitation is that since the data came from different sources at different times they are often not directly comparable. Wherever possible, 1968–69 has been used for pre-Clark Report data and 1970–74 for post-Clark Report data. Despite these limitations, the data examined represent the most complete and most accurate data available on the functioning of the disciplinary process.Google Scholar

32 The reliability of ABA National Discipline Data Bank information is a matter of some concern. Due to the basic unreliability of all reported measures of disciplinary output, an assessment of reliability is difficult to obtain. We did, however, compare Data Bank information with the annual reports of 15 disciplinary agencies. Of the 15 comparisons, the Data Bank and annual report information corresponded in 12, while the Data Bank reported several more disciplines in 2 jurisdictions and fewer disciplines in 1. Our rough estimate is that the Data Bank is accurate to within about 10 percent for reporting jurisdictions. In addition, a few jurisdictions do not cooperate with the Data Bank and do not submit any information on disciplinary output. Such information is thus omitted from Data Bank reports. Nonetheless, the Data Bank is the best available source of information.Google Scholar

33 Regional hearings on the status of discipline were held between Mar. 1968 and Apr. 1969, with representatives from every state, and many local, disciplinary agencies. A Preliminary Draft of the Clark Report was circulated in Jan. 1970; the Final Report published in June 1970. The regional hearings and other Clark Committee activities throughout this period generated a heightened awareness of the deficiences of professional discipline.Google Scholar

34 Silverman Report, supra note 1, at 49 n.108. Overall, the rate of disbarment after hearing by the Appellate Division of the New York Supreme Court dropped from 20 percent for the period 1963–68 (N=98) to 12 percent for the period 1970–75 (N=149), and the rate of resignations (with an admission that the respondent cannot successfully defend against the charges) dropped from 26 percent to 16 percent. The changes in rates of disbarment and suspensions for one year or more and for less than one year for certain types of misconduct (conversion of client funds, neglect of client cases, and violation of federal income tax laws) are as follows:Google Scholar

35 The 29 states on which figure 2 is based imposed 75.1 percent of all public disciplinary sanctions imposed in the nation during the period 1960–74, according to data reported by the ABA National Discipline Data Bank. These 29 states include all except 1 of the states that imposed more than 2 percent of the total sanctions during that period. Approximately 72 percent of all lawyers in the United States work in these 29 states. Bette H. Sikes, Clara N. Carson, & Patricia Gorai, eds., The 1971 Lawyer Statistical Report (Chicago: American Bar Foundation, 1972) [hereinafter cited as 1971 Lawyer Statistical Report].Google Scholar

36 Clark Report, supra note 1, at 19–20.Google Scholar

37 U.S. Bureau of the Census, Statistical Abstract of the United States: 1975, at 422 (96th ed. Washington, D.C., 1975).Google Scholar

38 Bayless Manning, If Lawyers Were Angels: A Sermon in One Canon, 60 A.B.A.J. 821, 822 (1974). Manning concludes that “very little has happened so far to take up the challenge of the Clark Report.” Id. at 822. In Aug. 1974 Chief justice Warren E. Burger said of the Clark Report: “That important report must not be allowed to gather dust in the archives. It should be made a priority measure on the agenda of the Association. The legal profession is a generation behind the need to place its own house in order.” Letter from Chief Justice Burger to ABA President Chesterfield Smith, in Tate speech, supra note 31, at 1–2. Justice Clark, the chairman of the committee that produced the Clark Report, appeared to have the same stark assessment of the impact of the Report: “As late as December 10 [1974] Mr. Justice Clark is reported as having said that the enforcement of legal ethics among the practicing attorneys is deplorable and the future of enforcement looks glum; that no progress has been made to amount to anything; and that unless lawyers do something fast to police themselves, either the U.S. Congress or state legislatures will have to do it for them.” Tate speech, supra note 31, at 2.Google Scholar

39 The transitory effects of publicity surrounding the initiation of a legal reform are analogous to the large but transitory impact of the British Road Safety Act of 1967 on drunk driving. H. Laurence Ross, Law, Science, and Accidents: The British Road Safety Act of 1967, 2 J. Leg. Studies 1, 27–35 (1973).Google Scholar

40 Mich. Sup. Ct. R. 15–16, Rules Concerning the State Bar of Mich., and Procedural and Administrative Rules of the State Bar Grievance Bd. Although the new rules did not become effective until 1970, the new grievance administrator took over in 1969, hence, some of the impact of the reform was felt in 1969.Google Scholar

41 In figure 3, the rate of complaints in New York City may be understated because the only available data on the number of lawyers include all of New York City while data on complaints include only the First Judicial Department of New York (New York and Bronx counties). The shape of the curve, however, ought not to be significantly affected.Google Scholar

In 1972 Michigan somewhat altered its procedures for classifying and reporting complaints, reporting nongrievance matters separately from disciplinary complaints. This may explain a portion of the large increase in complaints between 1971 and 1972, as shown in figure 3. Nevertheless, between 1972 and 1975 the number of complaints per 10,000 lawyers dropped approximately 35 percent. Inclusion of these nongrievance matters (constituting about one-half of all complaints) does not alter this approximate percentage.Google Scholar

All complaint rates may be somewhat misleading because we were not able to adjust the rates for multiple complaints against the same lawyers. Thus the indicated complaint rate some-what overstates the proportion of all lawyers who were the subjects of complaints. See pp. 996–99 infra.Google Scholar

42 The former clients interviewed were identified on the basis of a screening survey conducted in a moderate-sized city in Michigan. The primary purpose of the screening survey was to locate within a random sample of households individuals who had experienced what they considered to be serious problems with lawyers retained to represent them. We interviewed these individuals in order to gain an understanding of clients' subjective expectations as to lawyer behavior and their perceptions of and responses to the problems encountered.Google Scholar

It was anticipated that the frequency of problems in relationships between clients and lawyers would be low, and therefore a two-stage interviewing strategy was employed: (1) a survey of a large random sample (N=3,874) drawn from the general population (based on telephone listings, thus perhaps underrepresenting the poor) gathering minimal information adequate to select a sufficient pool of such problem relationships, and (2) in-depth interviews with clients obtained from this pool. The screening survey was intended as a first step in locating individual clients falling into this relatively low-frequency category-individuals who (a) had used a lawyer, (b) had had a problem with him, and (c) were willing to report on the problem. The screening survey is discussed more fully in the Appendix, p. 1017 infra.Google Scholar

43 Clark Report, supra note 1, at 6.Google Scholar

44 See Talcott Parsons, The Professions and Social Structure and A Sociologist Looks at the Legal Profession, in his Essays in Sociological Theory 34, 370 (rev. ed. New York: Free Press, 1954).Google Scholar

45 See Rosenthal, supra note 19; Wilbert E. Moore, The Professions: Roles and Rules 87–108 (New York: Russell Sage Foundation, 1970); Michael P. Katz, Negotiation and the Lawyer-Client Interview, 5 U. Toledo L. Rev. 282 (1974); Thomas L. Shaffer, Christian Theories of Professional Responsibility, 48 S. Cal. L. Rev. 721, 737–40 (1975).Google Scholar

46 Cf. Eliot Freidson, Profession of Medicine: A Study of the Sociology of Applied Knowledge 344 (New York: Dodd, Mead, & Co., 1970). Freidson points out the general confusion between the ideals to which professions claim to aspire (expertise and ethicality) and the factual definitions of the professions, i.e., between what they claim to be and what they are.Google Scholar

47 Goldfarb v. Virginia State Bar, 421 U.S. 773, 786, 787 (1975) (notes omitted)Google Scholar

48 While the screening survey was intended primarily to locate individuals for further inter-viewing rather than to collect quantitative information (see note 42 supra), certain quantitative information concerning the frequency of occurrence of lawyer-client relationships perceived as problematic by the client can be inferred. This quantitative data is set out and discussed in the Appendix, p. 1017 infra.Google Scholar

49 Clark Report, supra note 1, at 187.Google Scholar

50 Blaustein & Porter, supra note 10, at 258–61; Phillips & McCoy, supra note 10, at 110–14.Google Scholar

51 Blaustein & Porter, supra note 10, at 259.Google Scholar

52 Id.Google Scholar

53 Handler, supra note 30, at 78.Google Scholar

54 Clark Report, supra note 1, at 1–2.Google Scholar

55 See, e.g., Howard S. Becker, Outsiders: Studies in the Sociology of Deviance (Glencoe, Ill.: Free Press, 1963); William J. Goode, Community Within a Community: The Professions, 22 Am. Sociol. Rev. 194 (1957); Marks & Cathcart, supra note 20, at 220–21 nn.58–59.Google Scholar

56 Frederic K. Upton, President's Message, 13 N.H.B.J. 56 (1971). See also Chicago Bar Association, Annual Reports Submitted by Committees in the Association Year 1969–70, at 22.Google Scholar

57 Blaustein & Porter, supra note 10, at 258–59.Google Scholar

58 Upton, supra note 56, at 57. Cf. Rosenthal, supra note 19; R. B. Reavill, Professional Responsibility and Discipline: A Warning, 28 Bench & B. Minn. 25–26 (Oct. 1971), and his Professional Responsibility and Discipline: More About Neglect, 28 Bench & B. Minn. 35 (Mar. 1972).Google Scholar

59 The comparison set out in table 7 is made possible by the fact that the Oklahoma data are reported in the same categories as the New York City data.Google Scholar

60 Compare Reavill's Oct. 1971 article, supra note 58, with his Mar. 1972 article, where it is noted that almost one-half of agency complaints involve neglect of clients' business and related failure to keep clients advised. Carlin reports also that from 1951 to 1962, 65 percent of the New York City agency complaint input consisted of neglect and fee dispute matters. Carlin, supra note 16, at 151.Google Scholar

61 Frank Plaut, A Survey of Grievance Complaints Filed Against Colorado Attorneys: 1971–1972, 2 Colo. Law. 7, 8 (Aug. 1973).Google Scholar

62 The Michigan Bar Grievance Board, the disciplinary agency for the State of Michigan, received 2,172 complaints about lawyers in 1972 and opened investigatory files on about 53 percent of them. The data reported here are based on a systematic random sample of 50 percent of the complaints received during 1972, stratified to include 50 percent of the complaints on which files were opened and 50 percent of the others. We chose 1972 as the most recent year for which the proceedings were likely to be completed and case outcomes determinable. The case study approach allows a detailed examination of complaint and response patterns and illustrates the operation of a modern disciplinary agency, generally thought to be among the best in the country. We chose it to see what a disciplinary agency does when it functions well, according to contemporary standards.Google Scholar

The Michigan State Bar Grievance Board is a creation of the Supreme Court of Michigan. The Michigan bar was integrated in 1936 and the State Bar Grievance Board created in 1970, under a revised structure and set of procedural rules. In 1970 the administration of the disciplinary system was transferred from the State Bar of Michigan to the independent State Bar Grievance Board, consisting of five lawyers and two nonlawyers appointed by the Supreme Court and the State Bar of Michigan.Google Scholar

The day-to-day work of the Board is carried on by an administrator with a professional and office staff located in Detroit and serving the entire state. All complaints and information from other sources are received, screened, and investigated by the administrator and his staff and, in the half of the cases where files are opened, by the Board. Formal disciplinary proceedings or prosecutions are initiated where appropriate before three-person hearing panels of volunteer attorneys throughout the state. The hearing panels have the power to hear cases and impose orders of discipline that are final and effective when issued, subject only to appeal to the State Bar Grievance Board and then to the Michigan Supreme Court. This administrative structure contrasts with the prevailing structure in other states, that typically provides several levels of preliminary hearings and recommendations of discipline but reserves the power to impose disciplinary sanctions to the Supreme Court after (de novo) formal hearing before it. The hearing panel proceedings in Michigan are public, and hearings are announced to the press. This practice also contrasts sharply with the practice in most other states where the disciplinary process becomes public only after the Supreme Court has imposed a sanction. In the typical state neither preliminary hearings nor their results are public and Supreme Court proceedings are not made public unless and until disciplinary sanctions are imposed and become final. In most states, proceedings that do not result in the imposition of formal disciplinary sanctions remain confidential permanently and the public is unaware that proceedings have ever been held. (See, e.g., discussion of this issue in Special Committee on the Second Century (Cyrus R. Vance, Chairman), Report on the Committee on Grievances, 29 Record of the Ass'n of the B. of The City of N.Y. 563, 569 (1974).Google Scholar

63 The Clark Report viewed nonreporting by professionals as a serious problem. It quotes one agency chairman as saying that only about 1 percent of complaints to his agency came from lawyers. Clark Report, supra note 1, at 167–71.Google Scholar

This reluctance of lawyers to make complaints to the disciplinary agency is paralleled and exacerbated by the reluctance of lawyers in the disciplinary system to act on the information they do possess and to initiate agency investigation without the impetus of an external complaint.Google Scholar

One area in which the [discipline] board demonstrates caution is in the initiation of investigation. Board members frequently know of colleagues in their respective communities who are slipping or are suspected of actual misconduct in the pursuit of their professional duties. But, since the board is a reactive body, rather than an initiating tribunal, no action is taken until a complaint is received. I believe that the public and the profession would benefit if the board were not quite as reluctant to initiate an investigation.Google Scholar

Lobe, supra note 6, at 19. See also Silverman Report, supra note 1, at 24, 41.Google Scholar

64 Disciplinary agency personnel generally agree that complaints typically are framed as requests for assistance in the resolution of disputes between clients and their lawyers. Handler notes that sanctions are not generally the complainant's objective in making a complaint: “Clients may be using the disciplinary machinery to prod the lawyer into taking action–either to pursue the litigation or, more likely, to return the money.” Handler, supra note 30, at 83.Google Scholar

Note: Cases initiated by the agency without third-party complaints (28) are omitted.Google Scholar

65 It is not surprising that clients complain primarily about disputes with their lawyers. Whatever amount of questionable conduct one may see or think he sees, the filing of a complaint requires some particular motivation. While outrage and indignation are strong emotions and often steel the aggrieved party to stand up for his rights, indignation alone may be insufficient to motivate one to “blow the whistle” and file a complaint unless there is also a concrete injury to be remedied. See Becker, supra note 55. Thus the motivation to complain is typically the desire for redress of injury. This is congruent with attitudes underlying our legal system–the common law has a traditional distrust of raising issues of principle not accompanied by concrete injury. Compare Vilhelm Aubert, Competition and Dissensus: Two Types of Conflict and of Conflict Resolution, 7 J. Conflict Res. 26 (1963). The underlying assumption is that it is peculiar and suspect to complain unless one has something specific to gain from it. This hostility lies behind, e.g., the “case or controversy” requirement of the U.S. Constitution and the doctrine of “standing to sue,” and is deeply rooted in our entire legal system. At any rate, it is clear that nonprofessional complainants complain primarily in order to obtain the help of the agency. They seldom seek to invoke the quasi-criminal disciplinary function of the agency, which is its official purpose. The private and concrete dispute orientation of complaints is clearly demonstrated by the objectives articulated by nonprofessional complainants. See table 11.Google Scholar

66 Barbara A. Curran & Francis O. Spalding, The Legal Needs of the Public 83–84 (Chicago: American Bar Foundation, 1974); 3 Alternatives: Legal Services & the Public 22–23 (ABA Consortium on Legal Services and the Public, Special Issue, No. 1, Jan. 1976).Google Scholar

67 The 17 contemporary jurisdictions on which table 12 is based imposed 55.3 percent of all public disciplinary sanctions imposed in the nation during 1960–74, according to data reported by the ABA National Discipline Data Bank. These states include all except 2 of the states that imposed more than 4 percent of the total sanctions during that period. Approximately 54 percent of all lawyers in the United States work in these jurisdictions. 1971 Lawyer Statistical Report, supra note 35.Google Scholar

68 See note 62 supra. This same pattern of prescreening and reporting only approximately half of the complaint input as formal complaints appears in the Chicago Bar Association where only about 50 percent of complaints received are reported as formal complaints and considered by the Inquiry Committee. Interview with Secretary of the CBA Inquiry Committee; Chicago Council of Lawyers, Report on Disciplinary Procedures for Professional Misconduct 5 (1972). First District of New York statistics (see table 7) include many types of complaints not reported in other jurisdictions–such as “complaints that set forth no unethical behavior” (38.7 percent) and “complaints against attorneys not within the agency's jurisdiction” (21.3 percent).Google Scholar

69 In reality there were 1,016 complaints against 828 lawyers in the Michigan sample. Table 14 uses the number of lawyers (N=822, omitting 6 of the 828 cases which were pending) as its base for the sake of consistency; see table 13.Google Scholar

70 In most jurisdictions preliminary screening is carried out completely by the agency's administrative staff. The state of Michigan employs the unusual procedure of review of each formal complaint by at least one member of the formal disciplining body before it can be dismissed by the administrative staff. Procedural and Administrative Rules of the Mich. State Bar Grievance Bd., R.16.7 In fact, this requirement of Board review of dismissals is applied to somewhat more than half of all complaints received (see note 62 supra).Google Scholar

71 For an extensive discussion of “norms of inherent probability,” the subjective standards by which allegations or statements of fact are judged as credible (possible) or noncredible (too improbable to be considered possible), see Soia Mentschikoff & Ernest A. Haggard, Decision Making and Decision Consensus in Commercial Arbitration, in June Louin Tapp & Felice J. Levine, eds., Law, Justice, and the Individual in Society: Psychological and Legal Issues (forthcoming, Holt, Reinhart & Winston, 1977).Google Scholar

72 See Clark Report, supra note 1, at 1–3.Google Scholar

73 See the work of Elihu Katz and Brenda Danet on the styles of presentation of complaints to bureaucracies. Katz & Danet, Petitions and Persuasive Appeals: A Study of Official-Client Relations, 31 Am. Sociol. Rev. 811 (1966), reprinted in their Bureaucracy and the Public: A Reader in Official-Client Relations 174 (New York: Basic Books, 1973); Brenda Danet & Michael Gurevitch, Presentation of Self in Appeals to Bureaucracy: An Empirical Study of Role Specificity, 77 Am. J. Sociol. 1165 (1972); Brenda Danet, The Language of Persuasion in Bureaucracy: “Modem” and “Traditional” Appeals to the Israeli Customs Authorities, 36 Am. Sociol. Rev. 847 (1971).Google Scholar

74 Carlin, supra note 16, at 151.Google Scholar

75 Committee on Grievances, The Association of the Bar of The City of New York, Annual Report 1971–72, 27 Record of the Ass'n of the B. of The City of N.Y. 49, 50–51 (Supp., Oct. 1972).Google Scholar

76 The bifurcated perspective is implicit in, e.g., Guidelines and Procedures for Local Bar Association Handling of Complaints, approved by the Board of Governors of the State Bar of California, Sept 1973 [hereinafter cited as California Guidelines]. See also Sethi M. Hufstedler, President's Message: Another Look at Discipline, 49 Cal. St. B.J. 224 (1974).Google Scholar

This perspective on the role of the disciplinary system with respect to lawyer conduct that might result in problems but may not be deviant is also illustrated by Professional Responsibility and the Lawyer: Avoiding Unintentional Grievances (Standing Committee on Professional Discipline and Center for Professional Discipline of the American Bar Association, 1975), which states, at 5: “The experience of those involved in the discipline of lawyers shows that most complaints could be prevented if lawyers realized that the unintentional grievances they may unwittingly cause, or fail to prevent, are potential pitfalls they can avoid … if commonsense measures are taken. [This booklet] does not cover culpable conduct.” The publication of this booklet demonstrates the bar's view that such grievances warrant some level of organized response though, one infers, probably not disciplinary prosecution.Google Scholar

77 The screening and investigative procedures of the New York City agency are discussed critically and in detail in the Silverman Report, supra note 1, at 28–37.Google Scholar

78 See, e.g., Clark Report, supra note 1, and Carlin, supra note 16. Carlin, for example, states, at 161–62:Google Scholar

Too few violators are formally charged and punished to suggest that this activity by itself does much to weed out or discipline unethical lawyers.Google Scholar

….Google Scholar

The organized bar through the operation of its formal disciplinary measures seems to be less concerned with scrutinizing the moral integrity of the profession than with forestalling public criticism and control.Google Scholar

….Google Scholar

Further evidence that the organized bar is responding primarily to a concern for preserving its public image is the considerable importance of the visibility of the offense to the general community in the handling of disciplinary cases. Although visibility in general tends to force the hand of enforcement officials, it seems here to be the overriding consideration, having an even greater effect on the severity of the official sanction than the nature of the offense itself. It is consistent, however, with a desire to avoid lay interference and control that the most widely publicized violations should be the most severely and publicly sanctioned. Failure to punish visible violations might result in public criticism of the bar, and the visibility itself offers the profession an opportunity to demonstrate to the public that it can discipline its own members. Without publicity, the decision-maker has more leeway. He can offer to preserve the secrecy of the charge in return for a confession of guilt, or if there has been no confession, he is free to impose a relatively mild sanction. Furthermore, if little attention is focused on the violation, little if any official effort need be made to apprehend, let alone punish, the violator. (Note omitted).Google Scholar

The Clark Report shows a similar preoccupation with the image of the legal profession and lay criticism and control of the disciplinary process when it states:Google Scholar

After three years of studying lawyer discipline throughout the country, this Committee must report the existence of a scandalous situation that requires the immediate attention of the profession.Google Scholar

….Google Scholar

The Committee emphasizes that the public dissatisfaction with the bar and the courts is much more intense than is generally believed within the profession. The supreme court of one state recently withdrew disciplinary jurisdiction from the bar and placed it in a statewide disciplinary board of seven members, two of whom are laymen. This should be a lesson to the profession that unless public dissatisfaction with existing disciplinary procedures is heeded and concrete action taken to remedy the defects, the public soon will insist on taking matters into its own hands.Google Scholar

….Google Scholar

… Unless the profession as a whole is itself prepared to initiate radical reforms promptly, fundamental changes in the disciplinary structure, imposed by those outside the profession, can be expected. It is appropriate to quote a portion of the annual report of a state bar association ethics committee: '“A good and decent profession has a headache that cries out for fast relief. We have been put on notice repeatedly. We will compound our own cure or someone will mix up a dose which will curl our hair.”Google Scholar

Clark Report, supra note 1, at 1, 2, 9.Google Scholar

79 See Committee on Grievances, The Association of the Bar of The City of New York, supra note 75; California Guidelines, supra note 76.Google Scholar

80 Clark Report, supra note 1, at 93–94.CrossRef Google Scholar

81 A private admonition is analogous to pretrial diversion–a warning rather than prosecution. A private admonition generally remains confidential, although the complainant is informed of it in a few jurisdictions, such as Michigan. Typically, however, the complainant is not even informed that his complaint has been investigated, much less that a sanction has been imposed. The ABA National Discipline Data Bank does not record private admonitions. Some disciplinary agencies report the number of private admonitions imposed without data on the lawyers or the misconduct. These data are set out in table 12.Google Scholar

82 The five states on which table 16 is based imposed 42.6 percent of all public disciplinary sanctions imposed in the nation during the period 1960–74, according to data reported by the ABA National Discipline Data Bank. These five states include all except two of the states imposing more than 4 percent of the total disciplinary sanctions imposed during the period. Approximately 37 percent of all lawyers in the United States work in these five states. 1971 Lawyer Statistical Report, supra note 35.Google Scholar

83 See Plaut, supra note 61.Google Scholar

84 See discussion of sources of “legal intelligence” in Donald J. Black, The Mobilization of Law, 2 J. Legal Studies 125 (1973). The Clark Report, supra note 1, at 60–66, also notes the dependence on external sources of information, principally clients. A progress report of the Iowa Clients' Security Fund states the problem from the disciplinary agency's point of view as an appeal for information: “If you have a lawyer who gives you a trust account check that bounces or a client complains to you that another lawyer will not pay him his share of a settlement fee, then please call us. These are the clues that help us prevent small shortages from growing into big embezzlements. We need your help to learn about these clues.” David Hance, The Iowa Clients' Security Fund, Progress Report, March 20, 1975, at 8.Google Scholar

85 The way the disciplinary system defers and delegates to the criminal justice system is illustrated by the handling of the so-called “Watergate lawyers” cases, where disciplinary prosecution typically commenced only after criminal proceedings were completed. See, e.g., Allan Wolper, The Watergate Fallout, 4 Juris Doctor 37 (Sept. 1974). These cases also illustrate the dependence of disciplinary systems on the investigative resources of others-e.g., on press reporting and the materials assembled and partly televised by Senator Ervin's Select Committee on Presidential Campaign Activities. This point is made even more clear by the fact, pointed out by Chesterfield Smith, former president of the American Bar Association, that many local disciplinary systems could not, or did not, make use of this mass of evidence marshaled by others without the intervention of the ABA, which selected and assembled from the public record evidence pertaining to lawyers in the particular jurisdictions. ABA News Release, Legal Profession Tightening Controls over Errant Lawyers, ABA President Says (Jan. 16, 1974). These cases also illustrate the responsiveness of disciplinary agencies to notoriety and public pressure (and, in this case, ABA pressure). Others have presented evidence indicating the relationship between the notoriety of lawyer conduct and the severity of disciplinary sanction imposed. See, e.g., Carlin, supra note 16, at 157–60; Handler, supra note 30, at 84–85.Google Scholar

86 The six states on which table 18 is based imposed 44.5 percent of all public disciplinary sanctions imposed in the nation during the period 1960–74, according to data reported by the ABA National Discipline Data Bank. These states include all except two of the jurisdictions that imposed more than 4 percent of the total disciplinary sanctions imposed during that period. Approximately 39 percent of all lawyers in the United States work in these six states. 1971 Lawyer Statistical Report, supra note 35.Google Scholar

87 Similarly, a study of lawyer behavior leading to disbarment in Ontario during the period 1945–65 (N=79) found that it consisted of misappropriation, 58 percent; improper use of trust funds, 25 percent; fraud or forgery, 6 percent; neglect, 8 percent; other, 3 percent. S. Arthurs, Discipline in the Legal Profession in Ontario, 7 Osgoode Hall L.J. 235, 240 (1970). Cf. Carlin, supra note 16, at 154; Handler, supra note 30, at 79, 84.Google Scholar

88 Clark Report, supra note 1, at 98.Google Scholar

89 In New York City approximately one-fourth of the lawyers complained about had been previously complained about, often several times. Data correlating prior complaints with the imposition of disciplinary sanctions were not available. Silverman Report, supra note 1, at 37.Google Scholar

90 The archaic view that deviance results solely from innate identifiable character defects is also illustrated by the 1972 proposal of an ABA committee to test all applicants to law schools and exclude those of defective character in order to reduce future lawyer deviance. ABA Section of Legal Education and Admissions to the Bar, Report of the Special Committee on the Feasibility of Establishing a Procedure for Reviewing the Character and Fitness of Candidates for Law School Admission Prior to Their Acceptance as Students, January 28, 1972. See Leon Jaworski, President's Page, 58 A.B.A.J. 667 (1972); Alan M. Dershowitz, Preventive Disbarment: The Numbers Are Against It, 58 A.B.A.J. 815 (1972).Google Scholar

91 The Clark Report, supra note 1, at 2–3, joins this debate by stating: “The Committee has no reservations in concluding that the present enforcement structure is failing to rid the profession of a substantial number of malefactors.”Google Scholar

92 Carlin, supra note 16, analyzes the relationship between personal and situational factors in the genesis of lawyer ethical deviance.Google Scholar

93 See, e.g., Franklin E. Zimring & Gordon J. Hawkins, Deterrence: The Legal Threat in Crime Control (Chicago: University of Chicago Press, 1973).Google Scholar

94 See id.; Johannes Andeneas, Punishment and Deterrence (Ann Arbor: University of Michigan Press, 1974).Google Scholar

95 See discussion in Black, supra note 84, and Eric H. Steele, The Dilemma of Consumer Fraud: Prosecute or Mediate, 61 A.B.A.J. 1230 (1975).Google Scholar

96 It has been recommended that greater publicity be given to disciplinary agencies in order to increase public awareness of them. E.g., Silverman Report, supra note 1, at 60–61.Google Scholar

97 See Clark Report, supra note 1, at 143–46.Google Scholar

98 See Samuel I. Shuman, Why Criminal Law? Parameters for Evaluating Objectives and Response Alternatives, in Tapp & Levine, supra note 71.Google Scholar

99 See, e.g., Zimring & Hawkins, supra note 93; Andeneas, supra note 94; Kai T. Erikson, Wayward Puritans: A Study in the Sociology of Deviance (New York: John Wiley & Sons, 1968); Philip Shuchman, Ethics and Legal Ethics: The Propriety of the Canons as a Group Moral Code, 37 Geo. Wash. L. Rev. 244 (1968).Google Scholar

100 Code of Professional Responsibility, DR 6–101(A)(1), discussed in Marks & Cathcart, supra note 20.Google Scholar

101 Carlin, supra note 16.Google Scholar

102 In Michigan, Georgia, and Florida, for instance, disciplinary hearings are open to the public. Tate speech, supra note 31, at 7. See Special Committee on the Second Century, supra note 62. Nowhere are agency proceedings public until formal prosecution is commenced. Thus 95 percent of the dispositions are hidden from public view.Google Scholar

103 Iowa, through its client security fund, has instituted a program of auditing lawyers' trust accounts in an explicit attempt to gather information on lawyer handling of client trust funds. This intelligence gathering applies to one central area of disciplinary activity. It has been widely discussed. See note 5 supra.Google Scholar

104 See, e.g., Raymond T. Nimmer, Diversion: The Search for Alternative Forms of Prosecution (Chicago: American Bar Foundation, 1974); Eric H. Steele, Fraud, Dispute, and the Consumer: Responding to Consumer Complaints, 123 U. Pa. L. Rev. 1107 (1975).Google Scholar

105 See note 22 supra.Google Scholar

106 See note 23 supra.Google Scholar

107 The first client security fund was created in New Zealand in 1929. Similar funds appeared thereafter in Queensland, New South Wales, Australia; Alberta, Canada; Union of South Africa; England; Denmark; Scotland; Ireland; and Sweden. Development of Clients' Security Fund in the U.S., speech by Karl C. Williams before the ABA Special Committee on Clients' Security Fund, Dallas, Tex., Aug. 9, 1969. See also J. Stanley Mullin, Clients' Security Funds: Where We Are–What Is Ahead, 5 Ark. Law. 186 (1971). The first state client security fund in the United States appeared in Vermont in 1959 and was largely modeled on the client security funds in Canada. Since that time additional funds have been created rapidly until now 43 states, the District of Columbia, and at least 21 local bar associations have them. American Bar Association, Standing Committee on Clients' Security Fund, Report, Feb. 1975, at 1, in Section and Committee Reports to the House of Delegates, American Bar Association, 1975 Midyear Meeting, Chicago, Ill., Feb. 24–25, 1975, at 250. For a general discussion of client security funds see Note, The Disenchanted Client v. the Dishonest Lawyer: Where Does the Legal Profession Stand? 42 Notre Dame Law. 382 (1967). “Clients' Security Fund, as we have come to know it in the United States, is a fund provided by a state or local bar association to compensate a client who has suffered pecuniary loss through the misconduct of his attorney acting in the attorney-client relationship. It does not apply to instances of negligence but only to defalcation and misappropriation.” Williams, supra at 1. The chairman of the ABA Standing Committee on Clients' Security Fund described the reasoning behind the establishment of client security funds in this way:Google Scholar

[W]e have accepted the responsibility for discipline of lawyers but discipline itself is not enough. To disbar a lawyer who has stolen money from a client does not place the client in the same position he occupied before he placed his faith and his funds in the hands of the lawyer. The lawyer may have been disciplined but yet he was insolvent or deceased and unable to make restitution. It is also a plain fact that the threat of disbarment that we have relied upon has not eliminated the crime of misappropriation of clients' funds.Google Scholar

Because the public was not satisfied with the imposition of discipline against lawyers who had stolen funds, the Clients' Security Funds came into existence. Thus, we see that these indemnity funds have come into existence as an integral part of our disciplinary procedures.Google Scholar

Mullin, supra at 186.Google Scholar

108 While there are variations among jurisdictions, the following is a typical provision defining eligible claims:Google Scholar

[L]osses … caused by the dishonest conduct of a member of the State Bar of ___ acting either as a lawyer or as a fiduciary in the matter in which the loss arose except to the extent to which they are bonded or to the extent such losses are otherwise covered, provided such member has been disbarred or suspended from the practice of law, has voluntarily resigned from the practice of law, has died, has been adjudicated a bankrupt, or has been adjudicated mentally incompetent, or where the claim has been certified to the Committee by the Board of Commissioners of the State Bar of ___ as an appropriate case for the consideration because the loss was caused by the dishonest conduct of a member of the State Bar of __.Google Scholar

American Bar Association, Standing Committee on Clients' Security Fund, Clients' Security Fund: Model Resolution, Rules of Procedure, and Application for Reimbursement at nn.7–10 (Nov. 1970).Google Scholar

Discussing the types of losses compensable from clients' security funds, the ABA committee commented in 1971:Google Scholar

Not only are we troubled by losses arising from acts outside of the specific attorney/client relationship [e.g., lawyers acting as executors or trustees], but also by the losses or claims arising out of attorneys' questionable practices, such as taking a sizable retainer and failing to perform services. The client considers this “stealing” and we lawyers tend to view it as a “fee dispute” and consider our duty done when we order a return of part of the fee. If the attorney fails to return the fee, should the clients' security fund reimburse the client? If we are seeking to improve our stature in the public's mind, should we not accept the public's standards of “wrong-doing” rather than the more limited definition we generally adopt?Google Scholar

American Bar Association, Standing Committee on Clients' Security Fund, Report, July 1971, at 3, in Committee and Section Reports to the House of Delegates, American Bar Association, New York, New York, July 5–7, 1971, at 53 [hereinafter cited as 1971 Report of the ABA Standing Committee on Clients' Security Fund].Google Scholar

109 E.g., the 1971 Report of the ABA Standing Committee on Clients' Security Fund, supra note 107, states, at 3:Google Scholar

Short of that Utopian day when we are free of the misdeeds of a few of our members, we must cope with the fact that the public does not regard us highly. Should the public conclude that our self-governing bar associations are not doing a decent job, it stands to reason that we may expect legislation removing some of our self-governing features and the imposition of outside controls as exist in so many of the licensed trades. If we cherish the right of self-government, it follows that we must be responsible for our members and plan to meet all losses as they occur …. From the publicity received in Massachusetts and Florida on the occasion of their making reimbursement to clients who had suffered at the hands of lawyers, the newspaper publicity clearly indicated that the image of the Bar was enhanced by its reimbursing those clients for their losses.Google Scholar

See also An Editor's View of Clients' Security Funds, speech by Harold LeVanway before the ABA Special Committee on Clients' Security Fund, Dallas, Tex., Aug. 9, 1969; and Mullin, supra note 107, at 181.Google Scholar

The Supreme Court of Delaware, in sustaining the constitutionality of the court rule requiring annual payments by members of the bar to the client security fund, expressed these concerns in this way:Google Scholar

The proper administration of justice will falter if the Bar as a whole loses the confidence of the public as to legal service to which it has a maintained monopoly. The reputation of the Bar as a whole suffers when one of its members embezzles, even though the wrongdoer is a conspicuous exception among honest lawyers who join in the condemnation of his misconduct. Too often, however, the public thinks only of the defrauded client who must absorb the loss caused him by one who had been held out as a member of a privileged and trustworthy profession to which the public must, of necessity, turn.Google Scholar

In re Member of the Bar, 257 A. 2d 382, 383 (Del. 1969).Google Scholar

See also Clients' Security Fund and the Public Press, speech by Perry L. Fuller before the ABA Special Committee on Clients' Security Fund, Dallas, Tex., Aug. 9, 1969, in 30 Ala. Law. 485 (1969); Mullin, supra note 107, at 187; American Bar Association, Report of the Special Committee on Clients' Security Fund (Theodore Voorhees, Chairman) (Aug. 1961, No. 19).Google Scholar

110 Special Committee on Clients' Security Fund of the American Bar Association, Guide for the Establishment of Clients' Security Fund 16 (3d ed. 1961).Google Scholar

111 The proportion of complaints in various agencies involving excessive fees is as follows:Google Scholar

“Prairie City”–8.0 percent (Handler, supra note 30, at 79)Google Scholar

Michigan–9.8 percent (see table 13)Google Scholar

New York City–9.9 percent (see table 10)Google Scholar

Minnesota–12. 2 percent (aggregate 1971–73 data supplied by Minnesota State Board of Professional Responsibility)Google Scholar

Colorado–13.0 percent (Plaut, supra note 61, at 7).Google Scholar

112 Those grievances in which the fee charged appears unconscionable are referred directly to the disciplinary agency. “The rule has been that if a fee is unconscionable, it should be considered by the disciplinary body. However, I have found that a fee which shocks the conscience of a client will not necessarily have the same effect on his lawyer.” Professional Responsibility and Discipline, Areas of Inquiry and Complaint, 27 Bench & B. Minn. 13 (Feb. 1971); see also Special Committee on Resolution of Fee Disputes of the American Bar Association Section of Bar Activities, The Resolution of Fee Disputes: A Report and Model Bylaws 4 (1974).Google Scholar

113 An ABA committee recommended:Google Scholar

[T]hat if a lawyer against whom a fee complaint has been made refuses to submit to binding arbitration, the arbitration committee would nevertheless proceed to hold a hearing at which it attempts to determine, through the complainant and the testimony he marshalls, whether a legitimate complaint exists. If the committee so finds, one of its members would undertake to represent the complainant by either instituting suit against the lawyer or defending the client against any future suit brought by the lawyer if the fee in dispute has not yet been fully paid.Google Scholar

ABA Special Committee on Resolution of Fee Disputes, supra note 112, at 4–5; see also Jay A. Strassberg, The Philadelphia Bar Association Fee Disputes Committee, Bar Executive Key Handbook, V Programs (State & Local Bar Services, American Bar Association, Jan. 1972); Edward J. Schwartzbauer, Your President Reports, 42 Hennepin Lawyer 9 (Sept.-Oct. 1973); David S. Doty, Fee Dispute Arbitration–A Beginning, 40 Hennepin Lawyer 19, 26 (Mar.-Apr. 1972).Google Scholar

114 George E. Bodle, The Arbitration of Fee Disputes Between Attorneys and Clients, 38 L.A.B. Bull. 265 (1963). Similarly, “[t]heir first task was to define the Committee's objective, which, paradoxically, did not at all turn out to be the determination of right or wrong in the matter of a fee dispute, but rather the deciding of what should be done to preserve the image of the bar ….” Joseph I. Lewis, Fee Dispute Determination-The Allegheny County Experience, 121 Pitt. Leg. J. 3 (July 1973).Google Scholar

115 Hufstedler, supra note 76, at 227; see also California Guidelines, supra note 76, at 1; Silverman Report, supra note 1, at 25–27; and Annual Report of the Board of Governors, 49 Cal. St. B.J. 607, 609 (1974).Google Scholar

116 The unique aspect of the California response is the promulgation of formal guidelines aimed at defining nondisciplinary grievances and indicating appropriate responses to them. Types of lawyer-client disputes that may be considered by the local bar association, according to the Guidelines, include fee disputes and “(either types of complaints involving failure to communicate, dilatoriness or delay in taking action and other objectionable conduct which alienates clients ….” California Guidelines, supra note 76, at 2.Google Scholar

117 E.g., Clark Report, supra note 1, at 186–88; Comment, Professional Negligence, 121 U. Pa. L. Rev. 628 (1973); Lester J. Mazor, Power and Responsibility in the Attorney-Client Relation, 20 Stan. L. Rev. 1120 (1968); Note, Attorney Malpractice, 63 Colum. L. Rev. 1292 (1963); Note, Improving Information on Legal Malpractice, 82 Yale L.J. 590 (1973); D. O. Haughey, Lawyers' Malpractice: A Comparative Appraisal, 48 Notre Dame Law. 888 (1973); Nathaniel Rothstein, Lawyers' Malpractice in Litigation, 21 Clev. St. L. Rev. 1 (May 1972).Google Scholar

The impact of malpractice law is also felt through the mediating institution of malpractice insurance, which may function, as do other forms of liability insurance, not only to assure solvency and spread the cost of compensating losses but also to provide a more accessible forum for negotiation, adjustment, and settlement of lawyer-client disputes. See, e.g., E. Robert Wallach & Daniel J. Kelly, Attorney Malpractice in California: A Shaky Citadel, 10 Santa Clara Law. 257 (1970); Herbert S. Denenberg, Victor T. Ehre, Jr., & Ronald L. Huling, Lawyers' Professional Liability Insurance: The Peril, the Protection, and the Price, 1970 Ins. L.J. 389; Dick L. Rottman & Duke Nordlinger Stern, Analysis of the Lawyer Malpractice Problem, 1971 Annals of the Soc'y of Chartered Property & Cas. Underwriters 63; Patric J. LeHouillier, Legal Malpractice: The Risks and Insurance Protection, 42 Ins. Counsel J. 106 (1975).Google Scholar

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