| Oregon State Bar Bulletin — FEBRUARY/MARCH 2009 |
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I hate to sound like a broken record (or for you younger lawyers, like
a skip in a CD) but, as you will see later in this article, we (the Client
Assistance Office) have been telling you the same concerns for the last
five years but see the same old trends reoccurring.
On Aug. 1, 2003, rules adopted by the Oregon Supreme Court initiated the operation of the Client Assistance Office (CAO). Since its inception, CAO has screened all inquiries and complaints received by the bar alleging ethical misconduct by Oregon lawyers. Bar Rule of Procedure 2.5 requires CAO "to the extent possible and resources permit" to respond to all inquires from the public concerning the conduct of attorneys and allows CAO to refer inquirers to other resources. If CAO determines that, even if true, a complaint does not allege misconduct, it will dismiss the complaint. The complainant may then ask for review by general counsel, who may affirm the dismissal, refer the matter to the disciplinary counsel’s office (DCO) or ask for more information and then make a decision. The general counsel’s decision is final. If CAO determines, "that there is sufficient evidence to support a reasonable belief that misconduct may have occurred," the complaint will be referred to DCO for further review.
As part of our practice we maintain a database that keeps statistical information concerning the nature of complaints, the source of the complaint, the disposition of the complaint and other statistically significant information that may help us identify trends or patterns. CAO lawyers use this information when speaking to local bar associations, presenting bar wide CLE presentations or writing articles to assist lawyers in avoiding ethical misconduct.
Having recently celebrated CAO’s five-year anniversary, I thought it might be interesting to take a look at the statistics from our first full year of operation in 2004 and compare them to 2008. Statistical methodology has changed over the years but the trends remain common.
The most striking statistic noted in our 2004 report was found in the "source of the complaint" benchmark, which identifies who actually made the complaint, whether it be the clients, opposing parties, opposing counsel or judge. In 2004, nearly 61 percent of complaints came from clients. Statistics from that year also showed that the primary nature of the complaints involved neglect, communication, fee disputes, competence and diligence, and return of client property. Those categories constituted almost 33 percent of the type of concerns raised by complaining parties in that year. This statistic, combined with the fact that clients were the primary source of complaints, and the nature of the most significant complaints related to issues between clients and their lawyers made those of us in CAO concerned about our members’ relationships with clients.
So, for the next five years, lawyers from CAO and DCO undertook a major education effort to see if we could turn this trend around. We shared these statistics with local bar associations and bar sections, in CLE presentations and Bulletin articles, and we suggested ways for lawyers to avoid complaints from their clients.
Now, let’s move forward to 2008. Our five-year effort appears to have been somewhat successful. The primary source of complaints remains clients, but the percentage is lower, at 37.25 percent of the total number of complaints received in 2008. Neglect, communication, fee disputes, competence and diligence, and return of client property still comprise a relatively large percentage of the total; in 2008 these combined categories represented nearly 25 percent of the complaints. While these numbers are lower than in 2004, they still present a somewhat troubling picture of how clients are viewing their lawyers.
Lawyers often ask what practice areas draw the most complaints. While the categories have been refined and redefined over the last five years, the top two practice areas have remained constant: criminal law and domestic relations. In 2004, almost 26 percent of the complaints concerned criminal matters and nearly 19 percent arose in the domestic relations arena. Thus, 44 percent of the complaints in 2004 were directed at lawyers in those two practices, dwarfing the other 26 practice areas.
In 2008, there was a significant change in those numbers — but not for the better. Complaints against lawyers that related to a criminal matter jumped to 36 percent of the total, while complaints against lawyers practicing law in the domestic relations area had a slight drop, to a little over 16 percent of the total complaints received. These two practice areas had a combined increase to 53 percent of all complaints received in 2008, again dwarfing the other 25 practice areas.
One explanation for the increase in complaints against lawyers who practice criminal law may be that inmates are more aware of CAO and are increasingly seeking assistance from our office. We find that many of these letters are addressed not to the Client Assistance Office but to a particular lawyer in CAO. We suspect inmates are circulating information from our office to other inmates and the inmate population is simply more informed about what we do or what they think we may be able to do.
Because the number of complaints against lawyers practicing criminal law was not declining, we modified our database to track the disposition of criminal matter complaints. These statistics were not available in 2004, but in 2008 just under 63 percent of such complaints were dismissed. Many of the dismissed complaints concerned claims that the client’s constitutional rights had been violated, the lawyer refused to file motions that the client felt should be filed, the lawyer was incompetent, the lawyer refused to call witnesses the client felt were important to the case or the lawyer was "in cahoots" with the district attorney and was forced intosigning a plea agreement. These issues generally do not implicate any of the Oregon Rules of Professional Conduct and do not require a response from the lawyer.
Many of the complaints involving criminal matters involve the quality of service provided to the client. These matters generally are not within the jurisdiction of CAO but may be of importance to the Office of Public Defense Services (OPDS). CAO has a good working relationship with OPDS, and we refer many of the quality of service cases to that agency. In 2008, just over 8 percent of the complaints involving criminal law practitioners were referred to OPDS. Finally, of the total criminal matter complaints in 2008, fewer than 8 percent were referred to DCO for further review.
One other statistic warrants mention in this article. As noted above, if CAO dismisses a matter, the complaining party has the right to have the matter reviewed by the OSB general counsel. CAO only began keeping statistics on the disposition of appeals since Jan. 1, 2006. From that date until Dec. 31, 2008, there were 717 appeals of CAO decisions. Of those, 702, or 98.18 percent, were affirmed by general counsel while only 15, or 2.10 percent, were referred to DCO.
Now, let’s move from statistics to process. Prior to the creation of CAO, all complaints, regardless of merit, were handled by DCO and became a part of the lawyer’s permanent (and public) disciplinary record . One of the goals of the task force that developed the concept of CAO was to cull the meritless complaints and establish a method to inform the public that although a complaint had been filed it was not considered part of the lawyer’s disciplinary history. Thus, from the outset CAO had a separate database from DCO’s so that if a request was made concerning the disciplinary history of any lawyer the bar could explain the distinction.
That process was improved in 2007 when the bar adopted a document retention policy. Now CAO keeps dismissed complaints for three years. At the end of three years the file is purged and there is no longer a public record of the dismissed complaint. If a complaint is forwarded to DCO for further review and is dismissed, it is retained for 10 years and then purged. If the complaint results in discipline, the record remains a part of the lawyer’s permanent record.
Part of the CAO process includes providing assistance to clients, the public and Oregon lawyers. Countless hours are spent by CAO lawyers and lay staff talking with members of the public about how to file a complaint, how to get their files from their lawyers, how to access the bar’s fee arbitration program and what other agencies or resources may be available. Sometimes the issue may involve a lawyer, such as a failure to return calls, e-mails or other client communications. Often a CAO lawyer will simply call the lawyer to re-establish communication. Most often those attempts are successful since a continued failure to communicate may result in a bar complaint requiring a written response to CAO.
While I hope that I will not have to sound like that old broken record (or that skip in the CD) next year at this time, rest assured that CAO lawyers will continue to sound the praises of, among other things, good communication with clients, attending to legal matters entrusted to you and insuring that you always have a written fee agreement with your client. If you think CAO can be of assistance to you, feel free to call me, Scott Morrill or Paul Neese at any time.
ABOUT THE AUTHOR
Chris Mullmann is manager of the OSB Client Assistance
Office. He can be reached at (503) 620-0222 or toll-free
in Oregon at (800) 452-8260, ext. 392, or by e-mail
at cmullmann@osbar.org.
Scott Morrill can be reached at the same phone number,
ext. 344, or by e-mail at smorrill@osbar.org. Paul
Neese can be reached at ext. 366, and by e-mail at pneese@osbar.org
.
Ethics opinions are published and updated on the bar’s website here.
© 2009 Chris Mullmann