 In
a recent column, we considered the State Bar report on small firm and
solo practitioners, which verified that they are investigated and
prosecuted more than lawyers in big firms. The purpose was to open a
dialogue, exploring how "the practice" could be equalized and
evaluating what factors make a difference. We must look beyond the
obvious difference that a prime corner location in a 42-story office
building can make in the mind of a client. Remember, we are all sworn
to provide justice for all, not just for the well-heeled. A very valid
suggestion by Justice William Rylaarsdam on mentoring appears in this
month's Letters to the Editor. Yet, I still have visions of things .
. . other than sugar plum fairies.
Mack v. State Bar (2001) 112 Cal Rptr. 2d 341,
involved a lawyer's dismay that the State Bar would publish, on the
internet at the State Bar's website, his "private" reproval.
"Once the State Bar initiated disciplinary proceedings
against Mack, the records of those proceedings became public." (Id
at 344.) The internet is a "newer and better way of making public
records available." (Id at 345.) "Even if we were to treat State
Bar disciplinary records as ordinary court records, both decisional
law and state and federal constitutional principles have established a
powerful public right of access to those records." (Ibid.)
"The purpose of discipline is to protect the
public, the courts, and the legal profession." (Sands v. State Bar
(1989) 49 Cal. 3d 919, 931.) Inherent in the theory of discipline is
the belief that it has a prophylactic impact on other lawyers. But,
lawyers are members of the "public," too. Approximately 70 percent
of our annual dues go to fund the disciplinary system.
The State Bar Court publishes the California State Bar Court
Reporter, which contains intricate and detailed opinions analyzing
attorney misconduct. These decisions can be purchased in hard copy
(The Reporter), or through commercial companies like Westlaw and
Lexis.
There is a powerful lawyer/public right to access
those records, in order to trigger the prophylactic or preventive
effect. Today, even small firm and solo practitioners use computers:
they are "not frozen in amber, unaffected by new technology."
(Mack, supra, at 347.) One could suggest that we have already paid a
high price - through our dues, for access to these decisions - and
should not be required to pay twice. What about posting them on the
State Bar's website? They are a valuable asset and a prime teaching
tool.
Then, there are ethics opinions, addressing the
truly "gray" areas of practice, published by large metropolitan
bar associations. In order to access them (each of the four separate
organizations), they must be independently visited online. Al-though
the State Bar's ethics materials have recently improved
tremendously, why couldn't we have a "mega-search engine," to
search all the opinions in one fell swoop? Making this information
widely available could prevent mistakes and misconduct. It is
heart-wrenching to see good, competent lawyers disciplined simply
because they didn't know.
Los Angeles attorney Diane Karpman can be reached at 310/887-3900
or karpethics@aol.com.
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