Lawyer misconduct complaint process targeted - East Valley Tribune: News

Lawyer misconduct complaint process targeted

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Posted: Friday, September 18, 2009 5:35 pm | Updated: 12:27 am, Sat Oct 8, 2011.

The new chief justice of the Arizona Supreme Court wants to revamp the process for investigating possible misconduct by lawyers.

In a formal order, Rebecca White Berch said the process should be revamped to make it less cumbersome and less time consuming. And while she left the specifics of how to do that to a task force she appointed, Berch laid out some guidelines for the kinds of things she wants.

Some of these are technical changes, like having a panel of lawyers and lay people review complaints and determine if there is probable cause to bring formal charges against an attorney. Now that decision is made by a lone hearing officer.

But some of the changes actually would allow an "intake attorney" to summarily dispose of some cases and handle others informally. That would speed the process along by having full-blown cases only on the more serious ones.

David Byers, director of the Administrative Office of the Courts, said Berch isn't trying to come up with something entirely from scratch. He said the task force is using the Colorado discipline system as a starting point and will make changes that are appropriate for Arizona.

Byers said until several years ago it took four years to get cases of serious misconduct involving attorneys through the system.

"We've cut the time to process to well over half," he said.

"But that wasn't good enough," Byers continued. "We want a fair system that's also swift for both the public and the lawyers."

The State Bar filed its own proposed changes. But Byers said the justices concluded that more was needed and directed his office to see what is being done elsewhere.

"The court concluded that they really weren't going to achieve what they wanted just tweaking the current system," he said. That, said Byers, resulted in the directive to look at how things are done elsewhere - which led to examination of the Colorado system.

Part of the problem, he said, are the sheer numbers: Last year there were 4,324 complaints made about attorneys to the State Bar, whether by phone or in writing.

"It's everything under the sun," Byers said.

"Sometimes people lost their cases; they're complaining about their attorney," he said. "Or sometimes what they're complaining about is something they should appeal to the Court of Appeals."

Those are simple to eliminate.

Of the others, Byers said the largest amount falls into a couple of categories. These include complaints that lawyers won't return phone calls or that an attorney won't provide a copy of the file, whether for the client's own records or to go to a different lawyer.

"And then you have some fee disputes," he said.

He said these are relatively minor and can be handled informally through mediation.

"But that leaves, then, about 1,205 charges that are referred to the investigation attorneys," Byers said. "Those are the ones that we want to see if we can handle a little differently."

What Byers found is Colorado tries to have the cases resolved rather than dealing with complaints on an adversarial basis.

"When a citizen calls in and is complaining, they really want to get it resolved," he said. "And typically they want to do it pretty quickly. They don't want it to drag on."

Byers said the Colorado system gives attorneys involved in reviewing complaints more authority to resolve cases than staff attorneys at the Arizona Bar. The result, he said, is Colorado gets about 85 percent of charges resolved in less than a month, versus about 70 percent in Arizona.

In those cases that do proceed further, Byers said Colorado offers other differences.

For example, Arizona now has a single person review formal charges filed against attorneys to determine if there is probable cause to proceed. The person who serves in that role, usually a Bar officer, changes every year.

One problem that creates, said Byers, is different hearing officers have differing views of what constitutes probable cause.

In Colorado, by contrast, there is a nine-member committee of attorneys and lay people appointed by that state's Supreme Court that makes the "probable cause" decision.

Colorado also uses a full-time hearing officer, called a "presiding disciplinary judge," to adjudicate complaints, versus volunteer attorneys. Byers said that results in more consistent rulings of what are ethical violations and what are not. And that consistency, in turn, encourages settlements.

Finally, full-blown hearings are conducted before the presiding disciplinary judge, another attorney and a lay person, whose decisions are final, though appeal to the Colorado Supreme Court is possible.

In Arizona, a nine-member disciplinary commission reviews the case but can only make recommendations, with the final decision always left to the Arizona Supreme Court.

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