Vivian Berger Mediator

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Mediation: An Alternative Means of Processing Attorney Disciplinary Complaints

The Professional Lawyer
December 2005

Sources ranging from the Harris Poll [FN1] to lawyer jokes reflect Americans' low level of confidence in, and esteem for, the bar. Regrettably, some attorneys do live up (or down) to their reputation.

We do not know how many actually commit substantial violations of the rules governing professional behavior, but we do know how many complaints are filed alleging attorney misconduct. In my jurisdiction of admission, for instance, the First Judicial Department of the Appellate Division of the Supreme Court of the State of New York (which covers Manhattan and the Bronx), the Departmental Disciplinary Committee (DDC) opened almost 3,500 new matters in 2003.[FN2] Of the 3,653 matters - old and new - processed that year, only 272, a little over 7%, culminated in private discipline (Letter of Admonition or Reprimand) or referral to the court with a recommendation for more serious, public sanctions ranging from censure to disbarment.[FN3] The vast majority of complaints were rejected on their face or eventually dismissed.[FN4]. These results are likely typical.

Yet those of us concerned with professional responsibility should not take these low rates of substantiation as proof that there is no basis for the public's lack of trust in lawyers. True, few commit fraud or forgery, convert client funds, get convicted of felonies, or otherwise engage in the type of misconduct that leads to removal from the bar. Avoidance of gross misbehavior, however, is hardly the standard to which attorneys ought to aspire. Nor is skirting the ethical line (conduct that in New York's Judicial Departments other than the First may lead to issuance of a letter of caution [FN5]).

Ideally, lawyers should strive to achieve respect and confidence from the public and, above all, their clients. Discipline is too blunt an instrument to deal with the failure to forge or maintain a good attorney-client relationship, especially since some clients may be so abusive, emotionally disturbed, mentally challenged, unrealistic or controlling as to subvert counsel's best efforts in this regard. Indeed, even much of the "law" governing lawyers is couched in merely precatory terms: the "shoulds" and Comments in the Model Rules of Professional Conduct (Model Rules), the Ethical Considerations in the Code of Professional Responsibility (CPR), embody desiderata - not mandates. Regulatory bodies ought to refrain from micromanagement, which risks overuse of the power to damage the livelihood of those under their jurisdiction. For this reason, in addition to their limited resources, DDC staff might be well advised to pursue only charges of clear violations.

But complainants who allege something short of obvious misconduct do more, ordinarily, than simply protest that their lawyers were not understanding or friendly. Rather, they assert, "my lawyer never answers my phone calls," or "he forced me to settle, when I didn't want to" or "it's been five years and nothing has happened on my case."

Quite likely, the client is exaggerating. The Model Rules, though (and related provisions in the CPR, the basis of New York's disciplinary statutes [FN6]), prescribe that "[a] lawyer shall keep the client reasonably informed about the status of the matter [and] promptly comply with reasonable requests for information," [FN7]"shall abide by the client's decision whether to settle ...," [FN8] and "shall act with reasonable diligence and promptness in representing a client." [FN9] In real life, communication, coercion and neglect come in shades of gray, not black and white. While the regulators may surmise that investigation of such allegations is unlikely to disclose activity rising to an actionable breach, they cannot be sure. What they can tell is that, whatever the explanation, the bond between attorney and client has frayed or severed. Summary dismissal, while doubtless welcome to the respondent, will leave the complainant wholly dissatisfied and, very likely, persuade him that the professional authorities desire only to shield their own. Chalk up another negative vote for the polls on public perception of lawyers.

In these circumstances, what can be done? Under the Rules of the New York State Supreme Court, applicable to all Departments, the DDC is able to refer "appropriate" matters that may not warrant formal discipline to mediation. [FN10] (Serious complaints, such as charges of criminality, escrow violations, alcohol or drug abuse, or a pattern of similar misconduct are excluded from the program.) [FN11] Eligible cases are generally those involving "a breakdown in the attorney-client relationship." [FN12] In such situations, volunteer neutrals help to "resolv[e] minor disputes in a non-adversarial manner." [FN13]

Since mediation, unlike arbitration, is purely a facilitative process - mediators make no factual findings and issue no decisions or orders - the parties choose whether to settle, or on what terms. If they settle, the mediator assists them in writing up an agreement, which is filed with the DDC; compliance by the parties (or non-compliance by the complainant) will result in dismissal of the proceeding. If talks fail to achieve resolution, the mediator will return the matter to the DDC, "which may continue its investigation of the original complaint." [FN14] Like other types of mediation, these sessions are confidential - with one exception. In the event that during discussions previously unknown evidence emerges "that raises a substantial question as to the attorney's honesty, trustworthiness or fitness as a lawyer in other respects" (for example, an attorney accused of mishandling the client's lawsuit turns out to have been embezzling her money), the mediator has a duty to report this discovery to the DDC, [FN15] which will then pursue the grievance formally.

The First Department's mediation program is administered by the Association of the Bar of the City of New York; the Association assigns the grievances referred to it by the DDC to individual mediators. I have served as a volunteer neutral for several years. Having handled approximately 30 cases (roughly three-quarters of which were resolved), I am in a good position to evaluate its pluses and minuses. In a nutshell, I conclude that mediation can play a very valuable role in mending "broken" professional relationships. In the absence of full repair, it can at times patch them up so as to allow counsel to complete at least some of the tasks for which he was hired. Finally, even where a new attorney has taken over the underlying matter or the retention has otherwise ended, a facilitated face-to-face meeting can help both sides to reassess what occurred in the past and achieve a better understanding. If nothing else, the parties (most critically, the lawyer) can learn to avoid in the future the mistakes, misjudgments or miscommunications that generated the grievance at hand.

Are there certain kinds of parties or cases that I see disproportionately often? While each situation is unique in some way, I can describe a typical context from which my mediations arise.

First, who is the respondent lawyer? He - and out of 30 examples, it's never been "she"! - practices solo or with a few other attorneys and perhaps a paralegal. He has a very high-volume, small-case practice, most of it devoted to "PI" work (personal injury litigation). He usually takes a negligible retainer, "fronts" most expenses, and relies for the bulk of his compensation on contingent fees, to be paid out of awards or settlements. Economics dictate that the lawyer not spend too much time on individual clients or matters. Frequently he is out of the office, in court or talking to claims adjusters. He has little patience for "handholding" clients. He is slow to return phone calls and may be rude or abrupt when he does, saying little more than "I'm working on it." If the client ultimately fires him, he will assert a retaining lien - holding on to the file until the client pays the disbursements or he and new counsel agree on how to divide any future recovery.

Second, who is the respondent's client, or ex-client, turned complainant? Very often, she (or he) is less educated than the attorney, from a different racial or ethnic background, and financially not well off. As an accident victim, she is usually a "one shot" litigant. Thus, in contrast to business clients, who have ongoing relationships with lawyers, she is, on the whole, unsophisticated about the law and court processes, knowing only what counsel tells her or what she hears from equally ignorant friends or family. She tends to believe that long delays in her case's progress stem from neglect by her attorney rather than systemic factors like crowded dockets. Furthermore, she may still be in physical pain from the after-effects of the accident and vulnerable emotionally - hence, not always objective or reasonable. Because of poor communication with her lawyer, she feels disrespected, even abandoned, and worries that her case is getting short shrift. When counsel at some point produces a settlement offer, she will likely regard it as inadequate - yet feel psychologically pressured to accept it, as the passage of time dims hope of a more substantial recovery.

Other sorts of matters I deal with not infrequently involve immigration or citizenship, housing disputes, and small-business sales, dissolutions or problems with governmental agencies, which the attorney is hired to handle. Again, a majority of the respondents are "small-time" lawyers, and most of the complainants do not have continuing relationships with counsel or familiarity with the legal system.

Clearly, these paradigm situations are rife with occasions for misunderstanding and mutual resentment. I stress "mutual" because attorneys have feelings, too (though the public does not always seem to think so!). Some clients make unrealistic demands, insisting on constant contact with, and support from, their lawyers. A few even attempt to insist on unethical conduct, complaining if counsel properly declines to pursue a claim that investigation proves to be baseless. Others are "wannabe attorneys," striving to micromanage their case. Still others have language problems, making communication difficult. And some are just unpleasant or unbalanced people, impolite or, at times, even threatening. Where a lawyer feels burned by a client's obstructionism or perceived ingratitude, the filing of a Bar complaint only piles injury on insult.

As the mediator tasked with sorting out the parties' differences, I try even before we meet to set the stage for a fruitful process. When I call the parties to schedule the session - having already read the charge, the answer, and the reply, if any - I attempt to get an initial sense of these people's personalities, how upset or angry they feel, and what it might take to fix the problem. By the same token, they get some sense of who I am and, I hope, begin to trust me. I also ascertain who else should be at the table. Occasionally, the grievant requires a friend or family member for emotional support, physical assistance, or English translation; sometimes, the lawyer will himself have retained counsel to represent him, or will need to bring someone like an accountant who worked on the case to answer the complainant's questions.

Moreover, when possible, I endeavor to get the lawyer to address all or part of the problem ahead of time in a practical fashion. For example, I have encouraged respondents to take steps in the underlying matter, such as prodding the insurer to make a monetary offer, finalizing negotiations with replacement counsel over a retaining or charging lien, or following up on the client's behalf with a recalcitrant government agency. The mediator can often jump-start stalled proceedings, and is wise to attempt this as soon as possible. Nothing succeeds like early success: when the complainant sees progress at the outset, she will probably feel more confidence in the mediator and, one hopes, diminished anger toward the attorney.

The session ordinarily lasts for about one and a half to three hours. After I make an opening statement, I give the floor to the complainant and then the respondent. In guiding their discussions, I use traditional mediational techniques like active listening, reframing issues, probing for submerged interests and needs, and creatively searching for solutions to problems. Often the process itself is the solution: the client gets answers to her questions; the attorney turns over requested documents; they iron out misunderstandings. As earlier noted, in my experience three-quarters of the cases culminate in a mediated settlement.

A few examples will illustrate more concretely mediation's power to alleviate the stresses that culminate in bar grievances. [FN16] One complaint against a personal injury lawyer by a slip-and-fall victim, a Dominican woman whose English was weak, recited the usual litany of grievances: unreturned phone calls, papers not turned over to the client, no progress on the underlying matter. I had her come with her husband, whose English was more fluent, as well as her 22-year old son, who had been born in the United States. In our session, the attorney explained (as he evidently had tried to several times before) that the claim had been dismissed on summary judgment. She had waived her right to appeal - insisting, in tears, that she just wanted for it all to be over - after the lawyer told her that her chances of prevailing were poor. He showed me the papers; the court's opinion seemed persuasive and, hence, his advice unobjectionable.

I was able to translate the judge's (and lawyer's) jargon into English, while the woman's family translated my words into Spanish. I also arranged for the lawyer to find and turn over a photo related to the case, upon which the client placed great stock. I am not certain that the complainant fully understood she had lost in court for good; the picture seemed to have no value except as evidence. But I hope that, at least upon reflection and further discussion with her son, the most knowledgeable participant in our session, she was able to comprehend and accept the fate of her claim. I know the mediation did help to convince her that her lawyer had always been on her side, had provided competent representation, and cared that she comprehend what had happened.

Here, the gravamen of the settlement was essentially the conversation itself - coupled with the return of the photo. (Typically, we never did sort out the "he said, she said" dispute regarding how often counsel had spoken to the client; our attention to the larger issues relating to the litigation largely obliterated this concern.) Other sorts of cases, however, combine relationship repair with more tangible aid to the client.

One such instance involved a dispute over $2,000 that the complainant, a very gracious retired professor, had advanced the lawyer for the purpose of filing a counterclaim against her daughter's litigious landlord, who had been harassing his tenant. Seeing no action on the case, she filed a complaint. During the mediation session, which the daughter also attended, the lawyer was able to convince the client that he had performed some work on the matter before he decided to drop the claim, when the landlord dismissed the original action. He also took the opportunity to vent his feelings of betrayal by the woman he viewed as the "client" as well as a friend - the daughter, who was very poor, for whom he had performed pro bono or cut-rate work a number of times over the years. ("No good deed goes unpunished" is an oft-heard refrain at these proceedings.)

As discussion proceeded, both the attorney and the daughter acknowledged that they liked each other, and mother and daughter expressed gratitude for the previous help he had given. The lawyer's return of half the fee, $1,000, settled the case. At least as important for all concerned, bitter feelings had been replaced by positive ones; and the lawyer said he would be willing to represent the daughter again.

Some other mediations, while less heartwarming, produced good results for the grievant through reinvolving the lawyer in the representation, at least for a limited time or purpose. One such underlying matter, an application for citizenship, had dragged on interminably, with the (then) INS failing to respond to attempts at contact and even losing the applicant's file. Predictably, the young male Asian complainant, a taxi driver, took out his frustration on the lawyer, who was not very "user-friendly" in manner; he complained to the DDC that counsel had been neglecting his case and had not responded to his phone calls. The lawyer, on his part, accused the client of making rude phone calls to his office. Not only was the breakdown in the relationship causing unpleasantness to both parties; it also was sapping the attorney's will to keep prodding the IRS to grant the desired relief to the immigrant.

In our session, the applicant came to understand that the government, not the attorney, bore major blame for the delay. Once civility had been restored, we brainstormed (another mediation technique) about how the client could improve his position, discussing such options as appealing to his Congressman for help. Ultimately, to resolve the complaint, the lawyer agreed to mount one more "full court press" on behalf of the client. With renewed motivation, he recurred to the task and, finally, succeeded: a few weeks later, he wrote me that the complainant had been sworn in as a citizen. Even as fervid a mediation supporter as I would not deny that luck played a role in this happy result. But so, too, did the mediation, especially since the improvement in lawyer-client relations that it produced fostered a settlement in which the attorney agreed to continue the representation - not just, say, refund the retainer.

I engineered a similar resolution in a very different kind of matter, a collection case: an elderly Haitian man had improvidently lent his credit card to a nephew, who ran up over $15,000 of debt, which he refused to pay back to the uncle. At some point, the deadbeat simply disappeared. While the lawyer procured a judgment against him (the easy part), finding either the defendant or his assets had thus far proved impossible. The client's daughter, an impressive young woman who came to the mediation alone since the father was disabled and did not speak English, asserted that counsel had not made sufficient post-judgment efforts to obtain the money. The attorney showed up at the session full of righteous anger; earlier, in his written response, he had railed against the "egregious use of the disciplinary function by this complainant" as well as those who had "urged him on" and stated his intent "to defend this scurrilous complaint vigorously."

Once again, frank dialogue defused rather than heightened tensions, and the lawyer agreed to put his shoulder to the wheel once more. Instead of viewing each other as foes, the attorney and the daughter decided to act together as a team. As part of the settlement, the latter agreed to use her family contacts to help locate the debtor; the former agreed to pursue certain remedies (such as, potentially, garnishment) for free. The parties also entered into a new contract calling for the payment of a reasonable hourly fee and expenses, if further services were required. I do not know if this case, like the would-be citizen's, had a storybook happy ending. Yet even if the complainant never recovered his money, he likely no longer felt cheated twice: first by the nephew and then by the lawyer.

A final example of mediation's salutary potential involved a tangible financial benefit obtained for the client by counsel's aid provided during the actual session. The complainant, typically, had hired the respondent to represent him in a personal injury matter; he was a marginally literate African-American man who had been knocked down by a car. At some point, the attorney had gotten himself relieved because of differences with the client - who was trying with predictable difficulty to proceed in court pro se. Blaming the attorney for abandoning him, the grievant was even more suspicious by the time we met than when he first filed his grievance: we had had to adjourn the proceeding on account of the lawyer's illness, an excuse the client considered phony.

According to counsel, the insurance company had offeredthe victim $11,000. This amounted to a good deal since the policy limit was only $25,000; to go to trial, the plaintiff would have to retain an expert, at a cost of several thousand dollars; and he had merely broken his hand, an injury unlikely to lead to a sizeable damages award. The lawyer had, therefore, strongly encouraged the client to accept this settlement, even proposing to lower his contingency. The client, who wanted to hold out for the full $25,000 (which he stood no chance of getting) then became hostile and took to showing up at the firm demanding money and accusing the lawyer of subverting his interests. Plainly, such factors as the parties' racial, class and educational divide undermined the complainant's trust in his attorney. Ironically, the straw that broke the back of their relationship was the latter's good advice (unheeded by the former) not to hypothecate a large portion of any future recovery to a bottom-feeding lien outfit in return for a small loan.

At the mediation, I helped the client to understand that he had received a fair offer and would have been well advised to accept it. Yet now that he was willing to do so, especially since the lawyer at this point agreed to waive his fee entirely, would the insurer still stand by its offer? Through a series of phone calls during the session, the respondent established that the money was still on the table. In our settlement, even though he had been relieved, he promised to help the complainant get the check promptly. (In parting, counsel advised the client to let the shyster lien company come after him; by the time it does, he will probably have spent the money and be judgment-proof!)

I would be less than honest if I portrayed mediation as a panacea for what ails attorney-client relations or as an all-purpose diversionary tool for bar disciplinary committees. Parties, complainants and respondents, may not take advantage of the process' beneficial potential - often displaying the boorishness, insensitivity, intransigence, or sheer stupidity that led to breakdown in the first place. A few (mainly grievants) turn out to be paranoid or otherwise unable to participate in meaningful dialogue. Mediated resolutions fall apart at times. Some reward an extortionate client, whom a blameless lawyer agrees to pay off in order to get rid of the grievance quickly, or paper over attorney deficits that will likely surface again.

Most worrisome are the latter: after all, the DDC and its adjunct mediation program exist for the purpose of regulating misconduct by counsel, not complainants. In one instance, unusual because it involved a dispute between two attorneys, one of whom succeeded the other in a personal injury representation, the grievant had entered into a contract with the respondent to give up the former's charging lien in return for 10% of the net proceeds. He complained to the DDC because the second lawyer refused to pay his share when the case ended, claiming that the first lawyer had not told him how much work the case would entail. Clearly, Attorney Number 2 simply wished to welch on an improvident deal and was hoping that Attorney Number I would get tired of pursuing the matter.

Mediation proved more efficient for the debtor than recourse to suing in Small Claims Court would likely have been; knowing he had no plausible defense, the creditor promptly wrote a check for the money owing. Admittedly, I felt somewhat uncomfortable about the settlement: the respondent had clearly behaved unethically, albeit not in a manner that affected the general public. But I made the judgment call that returning the grievance to the DDC would not have yielded satisfaction for the complainant, given the number of more serious cases on the Committee's crowded docket.

A more typical category of lapses by counsel involves the area of conflict of interest. I faced this problem where the lawyer had asserted a retaining lien on an ex-client's file. The litigation undertaken by counsel originally involved three plaintiffs, including the complainant, who had been injured while in a car rear-ended by another vehicle. The relationship with the client in question foundered when he became greedy, insisting that he receive more than his proportionate share of the limited insurance fund. While he was seeking other counsel, the attorney continued to represent his co-passengers. As I told the lawyer, in the circumstances this was improper. [FN17] Blinded by self-interest, he insisted it was not. Luckily, I did not need to wrestle with whether to remit the case to the DDC; I had to, because it failed to settle. [FN18]

A final matter worth mentioning grew out of a landlord-tenant litigation. The client, a Chinese single mother, was facing eviction from the rent-controlled apartment that she shared with her daughter. She claimed that the lawyer had overcharged her [FN19] and behaved in a hostile and even frightening manner when she questioned the bill. Unique among the respondents whose cases I have handled, he refused to talk to me on the phone. Notwithstanding that his office clerk had approved the date of the mediation six weeks ahead of time and that I had sent a reminder fax a week earlier, he also failed to show up at the session without even requesting an adjournment - this, too, was a one-time-only event. Instead, he sent a nonlawyer without authority to agree to anything. (Even had she been given authority, her presence alone would not have sufficed since mediation contemplates an exchange among the involved parties wherever feasible.)

Remanding the matter, as required by the rules [FN20], I reported his lack of cooperation in full detail. Thus, by thumbing his nose at the process, the lawyer imprudently ensured that he would attract much more attention from the DDC than if he had simply appeared. He had also evinced the kind of contempt and arrogance that might indirectly substantiate some of the client's substantive charges.

On the whole, though, I rarely encounter matters like these that, at least in hindsight, may not belong in mediation. The DDC seems to triage the cases well.

In sum, I think the program I have described is good and deserves wide replication. At best, it can assist in resolving clients' issues with their attorneys, as well as the problems that caused them to seek a lawyer's aid - and, in so doing, improve the public's view of the profession. Equally important, it can educate lawyers who want to learn how to do better in the future. None of this is rocket science. Keeping in touch, [FN21] listening to the client, explaining what is happening in her case, conveying respect, and displaying patience and empathy will do much to reduce grievances born of frustration, which formal discipline cannot address.