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Monday, September 21, 2009

Legal Profession Tries to Hide Misconduct from the Public

If I had to pick just one thing that is wrong with our dysfunctional justice system, it would be this: The law is a self-regulating profession, meaning that complaints of wrongdoing against a lawyer almost always are heard by other lawyers. And lawyers often have a vested interest in sweeping their profession's "dirty undies" under the mattress, rather than airing them out for public view.

A recent article by Reporter John Schwartz in The New York Times shows that, even in the age of the World Wide Web, the legal profession clings to its ethos of self-protection over self-disclosure. Who are the losers in this game of "hide and don't seek"? The public. And that's just the way the legal profession wants it.

Schwartz reports that a number of brave lawyers have taken to various online social-media sites to gripe about judges. Did the associations and commissions that oversee the legal profession look into the complaints to see if, indeed, the judges were incompetent, or worse, corrupt? Not exactly.

Instead, they took action against the complaining lawyers, issuing reprimands, fines, and other forms of discipline. Schwartz focuses on Sean Conway, a Florida lawyer who blogged about a Fort Lauderdale judge, calling her an "evil, unfair witch." Reports Schwartz:


Mr. Conway is hardly the only lawyer to have taken to online social media like Facebook, Twitter and blogs, but as officers of the court they face special risks. Their freedom to gripe is limited by codes of conduct.

“When you become an officer of the court, you lose the full ability to criticize the court,” said Michael Downey, who teaches legal ethics at the Washington University law school.

Here is the rub, however, and it's an issue that Downey fails to address. If Conway were to use official channels to complain about the judge, his concerns almost certainly would be ignored.

I know because I've seen how state legal-oversight bodies work. I've filed complaints against three different judges with the Alabama Judicial Inquiry Commission. In each case, I did more than just "air gripes." I presented extensive evidence that each judge had repeatedly and intentionally ruled contrary to clear, simple law. I presented evidence that each judge either was incompetent, biased, or corrupt--or some combination of all three.

No action was taken on any of my complaints. None of them was even investigated.

I filed a complaint against lawyer William E. Swatek with the Alabama State Bar. Swatek has been disciplined by the bar three times previously, including a suspension of his license for acts of "fraud, misrepresentation, deceit, and dishonesty." And that does not include a criminal prosecution against him for perjury in the early 1980s. Swatek somehow managed to be acquitted, even though public documents indicate he clearly was guilty, and that allowed him to keep his bar card.

Bar rules state that a lawyer with previous disciplinary problems is subject to particularly close scrutiny. But was my complaint even investigated? Nope.

I know of a Jefferson County man who filed a bar complaint against Swatek, and it involved a case where someone almost lost his life. Did the Alabama State Bar do anything? Nope. (Much more on this case is coming in a future post.)

The Times does not say if Conway, the Florida lawyer, had tried to use official channels to complain about the judge. But it sounds as if Conway felt he was out of options. And his concerns involved issues that could deprive defendants of their right to a fair trial--and their freedom:

In Mr. Conway’s case, the post that got him in trouble questioned the motives and competence of Judge Cheryl Aleman, and appeared on a rowdy blog created by a criminal defense lawyers’ group in Broward County. The judge regularly gave defense lawyers just one week to prepare for trials, when most judges give a month or more. To Mr. Conway, the move was intended to pressure the lawyers to ask for a delay in the trials, thus waiving their right under Florida law to have a felony trial heard within 175 days, pushing those cases to the back of the line.

“All I had left were my words,” Mr. Conway said, adding that he decided to use the strongest ones he had.

If I could offer Mr. Conway some advice, it would be this: The next time, you criticize a judge online--and I hope you will do it if it is justified--don't just use words like "unfair evil witch." Spell out exactly how he or she is acting contrary to law. Show how he or she is violating procedural, statutory, or case law--and what that means to the parties involved. And don't write on a blog that is read mostly by other lawyers. Write where the general public is likely to see it.

We have written before about the law as a self-regulating profession--and spotlighted the problems that causes. We have proposed solutions, and John Schwartz' article convinces us even more that non-lawyers must get involved in the process. Here are our earlier words, and we stand by them today:

Lawyers have proven that they can't regulate themselves, so let's stop pretending that they can. Most bar associations scare lawyers about as much as Barney Fife scares the criminals of Mayberry. And most judicial inquiry boards scare judges about as much as Otis the Town Drunk scares the criminals of Mayberry.

We need citizen boards with the power to disbar, impeach, fine, spank, apply wedgies, and recommend indictments for wayward lawyers and judges. Obviously these boards will need to be trained by honest lawyers (perhaps law professors?). And they will need lawyers available for advisory purposes. But citizens need to be the ones who determine if lawyers and judges are following the law. And citizens need to be given the teeth to bite bad lawyers in the britches--until it hurts.

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