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Report urges lawyer reform Discipline system for attorneys too merciful, it says; 'Homerism' charged; State panel member says ABA took ideas from his committee


Next month, the judges and lawyers who formulate Maryland's legal rules will turn again to the task of policing their profession better -- armed this time with an outside report that agrees the current disciplinary system is slow, inefficient and less than friendly to the public.

The report, written by a five-member team of lawyers from across the country and sponsored by the American Bar Association, said the disciplinary process suffers from "homerism" -- having lawyers from the same county judge their brethren, sometimes too mercifully.

Maryland's Court of Appeals asked for the ABA review in February, after a series in The Sun chronicled the problems in Maryland's lawyer discipline system.

The newspaper cited a number of examples in which lawyers had been held responsible for misconduct by civil and criminal courts, yet remained untouched -- at least in public -- by a secretive disciplinary process.

That process can drag on for years while the lawyer in question keeps practicing.

The ABA review stemmed from interviews in May with participants in the process, from bar counsel Melvin Hirshman, who seeks to discipline lawyers on behalf of the Attorney Grievance Commission, to clients who complained lawyers had wronged them.

The team did not do a detailed study of specific cases, many of which are shielded from public view by confidentiality rules.

Recognizing many of the problems, the Maryland Standing Committee on Rules of Practice & Procedure has been working on reform for seven years -- recently adding final touches and preparing to send the package to Maryland's highest court. The ABA committee said change should wait no longer.

'Immediate attention'

"In order to restore the public's perception of lawyer discipline in Maryland and protect the state's consumers of legal services, the system deserves immediate attention from the Court of Appeals," the report said.

Towson lawyer H. Thomas Howell, who has drafted many of the reformed rules for the rules committee, plans to present ideas for how to implement the ABA report at the committee's next meeting Jan. 8.

Methods criticized

He has criticized the team's methods. In most cases, the ABA report made recommendations the committee had included in its proposal, Howell said. He complained that the ABA team did not interview any rules committee members.

"The ABA team takes credit for recommendations largely plagiarized from the revision draft, without the slightest attribution, and urges the court to move 'quickly' and give 'immediate attention' to its own proposals," Howell wrote in a reply to the report.

While the committee and the ABA team agreed on many of the problems, they differed on some of the ways to solve them.

A lengthy process

Under the current system, disciplinary complaints that aren't dropped right away wind their way through a secretive, lengthy process involving decisions from as many as four tribunals.

An "inquiry panel," made up of lawyers and nonlawyers, holds a hearing to determine the facts. If not dismissed, the complaint goes to the Review Board, a standing committee that decides whether to file charges in public. Then a trial judge holds another hearing, this one public. Finally, the state's highest court, the Maryland Court of Appeals, decides what, if any, punishment to impose.

The ABA team commented that that system offers lawyers "excess due process."

'Excess due process'

To speed the process and eliminate the local bias the ABA team said had crept into the system of inquiry panels, the report proposed creating a statewide board that would determine cases based on written statements from the parties, then swiftly dismiss cases or forward them to a trial court, where the cases would become public.

Howell said the rules committee prefers to address local bias by widening the pool from which panelists come -- from counties to regional divisions that mirror the state's seven appellate court circuits.

He likened the ABA recommendation, which would not include full-blown hearings at the inquiry level, to a grand jury-style proceeding that would not be fair to the accused lawyer.

"I don't think homerism is going to have its day any more, if it was," Howell said. "I would feel that if it persists, there certainly will be a further need to correct the system."

Howell's subcommittee also has decided not to accept the ABA recommendation that the state add random audits of attorney trust accounts, a practice that for years has helped states such as New Jersey catch lawyers who had misappropriated clients' money.

Howell said the audits could prove burdensome and costly, and that banks already notify Hirshman of overdrawn trust accounts -- a mechanism for discovering theft.

The subcommittee is proposing that the committee adopt some ABA recommendations to make the process friendlier to nonlawyers, including requiring Hirshman to explain to clients why their complaints have been dismissed; allowing a client to speak at public hearings involving an attorney he has accused; and increasing the number of nonattorneys on the Attorney Grievance Commission.

Call for 'balanced approach'

Howell said that once he makes his presentation to the rules committee in January, he hopes the group can swiftly forward rules to the Court of Appeals, which makes the final decision on whether to adopt them.

Robert M. Bell, chief judge of that court, said he doesn't want to rush reform.

"The whole system's got to be looked at to make sure that it serves everybody's purposes," Bell said. "It's got to be a balanced approach."

Pub Date: 12/14/98

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