Time for permanent disbarment?

Stand up now and stop the sleaze

By Wendy Borcherdt

Borcherdt

As a member of the public served by the legal profession, and as a former public member of the State Bar Board of Governors, I was dismayed when I read in the California Bar Journal that four attorneys faced disbarment for a second time. Why are lawyers who practice unethically and deceive their clients by stealing from them allowed to be reinstated and practice law again?

I grew up in a family of lawyers and judges and learned by their actions to respect and admire a profession that demanded excellence and dedicated service to clients and the justice system. This respect has eroded, not just in my home but in society overall.

When I was first appointed to the board of governors, I was appalled to learn that two convicted murderers were currently practicing law in California. Thus, I focused my efforts on strengthening the discipline system and served on many bar committees to educate myself.

I immediately was disappointed in the leniency I witnessed. Attorneys who had committed grievous crimes — multiple thefts of client funds, bribery, perjury, insurance fraud, practicing law while not entitled and felony convictions for rape, child molestation, homicide — were given various letters of admonition, or a suspension of inadequate length or, for the most egregious acts, disbarment. They could reapply for reinstatement after five years, and many did. Many were also approved for that reinstatement. I was appalled.

Up to that point, I had assumed that disbarment was permanent, that clients never would be injured by that attorney again. Not so. I listened to discussions about rehabilitation for these attorneys while I watched clients’ lives permanently injured by these lawyers’ abuses. No one worried about the innocent victim, the client.

It is apparent that this attitude still prevails as I read the discipline reports each month in the Bar Journal. The seriousness of the crimes that have been committed and the penalty for them do not seem commensurate. How long will this leniency continue?

There clearly are some people who cannot be trusted to practice law again. In April 2004, the Louisiana bar (which now has permanent disbarment) reported that 85 percent of disbarred attorneys were reinstated. But far worse is that 44 percent of those reinstated were disbarred again. Louisiana initiated permanent disbarment to correct this travesty. Why can’t California?

I appeal to those of you attorneys who practice your profession with honesty, ethical behavior and concern for your clients: Speak out to uphold the respect for your profession that used to be there in the public community. The lawyer jokes are not unfounded and are increasingly deserved. You must step forward to seek sufficient punishment for the unethical lawyer and to seek protection for the public. Do not permit these dishonest attorneys to continue to practice or be reinstated. There are nearly 150,000 active attorneys licensed in California — more than enough to meet the demands for legal services.

Practicing law is a privilege; you are the trusted representative of your clients. I challenge you to take some action to make the discipline system protect the public. If you do, you will begin to regain from the community at large the respect for the legal profession that it once had. The “sleazy” attorneys are the ones that give the profession a bad name. However, I blame each of you, for, by your silence, you condone their actions.

Do you want me, and other members of the public, to be suspicious of every attorney I meet? If not, you must help the bar rid itself of those attorneys who do not uphold the ethical standards by which you all are judged.

Chuck Plattsmier, chief disciplinary counsel for the Louisiana bar, states that “when you are talking about the privilege of practicing law and the protection of the public, there are some categories of misconduct that are so egregious, where the harm done to the client or to the profession as a whole is so profound, that it warrants a finding by the court that the lawyer has forfeited on a permanent basis the privilege to practice law.”

The current system of disbarment here in California is really only a “suspension.” We must have permanent disbarment in this state (as 10 other states have). Each of you is an officer of the court sworn to uphold our justice system. That system will only be as noble as the attorneys practicing in it.

Ethical attorneys: Where are you? Stand up, speak out and be counted.

• Wendy Borcherdt, a public member of the board of governors from 1993-98, is a member of the Commission on Judicial Nominees Evaluation and serves on the executive committee of the Hoover Institution at Stanford University.