Milestones make me melancholy.
Sarah Katz is disciplinary counsel. Earlier this week she told me that she’d stopped into HR in Montpelier and someone had given her something to deliver to me: a certificate marking my 20th anniversary as an employee of the Judiciary. I was hired as deputy disciplinary counsel in December 1998, became disciplinary counsel two years later, and switched to bar counsel in 2012.
Sarah’s message made me pause. I’m not even old enough to have been a lawyer for 20 years! And I’m certainly not old enough to have worked in an unrelated lawyer job for the 5 years preceding my term here! Alas, as the kids say, ball don’t lie.
Yet, I don’t want today’s reflection on 150 #fiveforfriday posts to be melancholy. I want it to be celebratory. Why? Because when it comes to professional responsibility – and to borrow a phrase – we’ve come a long way baby!
First, something to keep in mind as you wend your way through this post.
Before I settled on how far we’ve come, I spent the early morning hours searching for something to tie to the number 150. My search led me to Ptolemy’s world map. He published it in the year 150 A.D. For the time, its accuracy shocks me. I have no idea how they did it.
Now, back to my tale of how far we’ve come in legal ethics.
When I first started, Vermont’s legal ethics landscape was kind of like the wild wild west. My boss (who started a few months before I did) and I inherited an incredibly large docket of active investigations. Many were quite old. Indeed, a local newspaper had recently run an expose on “the backlog” in the attorney disciplinare system. New complaints continued to flow in.
On July 1, 1999, there were 174 active disciplinary investigations. By the end of the fiscal year, 192 new complaints had been filed. Bar counsel referred 91 of the new complaints to us for formal investigation. In other words, in FY 2000, the disciplinary office actively investigated 265 complaints.
Many were serious. That year, 37 different complaints resulted in formal disciplinary charges being filed against 18 different lawyers.
The Earps were outgunned, Doc Holliday weren’t nowhere to be found for backup, and within a year of being hired, I wanted out of Dodge.
Or did I?
Looking back, it appears as if we thought we had it so good. The Annual Report from FY 2000 is here. In it, we touted having “eliminated the backlog.”
But did we really “have it so good?” If, as the Supreme Court has often stated, a core tenet of attorney discipline is public protection, how much protection were we providing if complaints were pouring in and sanctions were being meted out on a monthly basis?
The collective YOU were doing things that generated complaints. WE were reacting.
It stayed that way for quite a while. Even as recently as fiscal year 2013, the PRP received 286(!) new complaints. Of those, 133 were referred to the disciplinary office for investigation.
Things have changed. For the better.
In 2012, the Supreme Court and the Professional Responsibility Board reallocated resources. We chose to focus as much on prevention as reaction, mainly by elevating the position of bar counsel from part to full-time. It’s working.
Take a look.
Over 5 years, new complaints fell from 286 to 149. YOU are no longer doing as much to generate complaints. And, while I can’t say for certain, at least some of the reduction can be attributed to the fact that WE have become more proactive.
Here are my inquiry numbers over the same period of time. They’ve doubled.
Remember how I said that 133 complaints were referred to the disciplinary office in FY13?
Last year, I referred 28.
Now, of the 149 complaints received, I did not screen 25. In some I had conflicts, while others were overdraft notices that are automatically referred to disciplinary counsel for investigation. Many of those that I did not screen resulted in formal investigations. Still, even if all 25 that I did not screen resulted in a formal investigation, 53 new investigations is a significant drop from 133.
And here’s an oft-overlooked reason that the reduction is important.
Sarah Katz’s docket shouldn’t be cluttered with files that don’t belong in the discipline system. Real public protection is keeping her free to respond to serious misconduct. And let’s be honest: there will always be serious misconduct. Show me a cohort subject to rules and I’ll show you members thereof that violate them.
Today, Sarah is free to respond to the serious misconduct.
I am not saying that we used to ignore serious misconduct. We prosecuted a lot of cases. But, I’ll be candid: 15 and 20 years ago, we probably dismissed complaints that warranted prosecution. And we did so for no other reason than to keep our heads above water.
That’s not public protection.
Now, back to Ptolemy’s map. As I mentioned, it’s a marvel for its time. Back then, I’m sure everyone thought it was a spectacular accomplishment. Much like FY 2000 when we thought it was spectacular that we “eliminated” the backlog of disciplinary investigations.
Again, on July 1, 1999, the disciplinary office had 174 open investigations.
On July 1, 2018? 21.
Oh how far maps and we have come.
So, on this milestone, thank you for reading. Thank you for calling before trouble arises.
That’s public protection.
Onto the quiz!
- None. Open book, open search engine, text/phone/email-a-friend.
- Exception – but one that is loosely enforced – #5 (“loosely” = “aspirational”)
- Unless stated otherwise, the Vermont Rules of Professional Conduct apply
- Team entries welcome, creative team names even more welcome.
- E-mail answers to michael.kennedy@
- I’ll post the answers & Honor Roll on Monday
- Please don’t use the “comment” feature to post your answers
- Please consider sharing the quiz with friends & colleagues
- Please consider sharing the quiz on social media. Hashtag it – #fiveforfriday
There’s only one rule that specifically references both criminal cases & divorces. It’s the rule on:
- A. Pro Bono.
- B. Conflicts with former clients.
- C. Conflicts with current clients.
- D. Contingent fees.
There’s a rule that prohibits ex parte communications with two groups of people. Each group begins with the same letter.
Name each group.
True or False.
Under our current rules, a nonlawyer paralegal can have an ownership stake in a law firm.
Per one of the conflict rules, a lawyer shall not prepare for a client an instrument (ie: a Will) that gives the lawyer a substantial gift unless ____________:
- A. the lawyer is related to the client.
- B. the client gives informed consent, confirmed in writing.
- C. the lawyer advises the client to seek independent counsel before executing the instrument.
- D. B & C.
Last year, the ABA updated its list of the top 25 legal movies of all-time. Two of the top three on the original list are set in the same state.
Name the movies and the state.