WEST VIRGINIA RECORD

By CARL L. ARMOUR, Ph.D.

According to widely disseminated national information, West Virginia ranks near the bottom among the 50 states for the reputation of our legal system.

In the American Tort Reform Association's (ATRA) Dec. 16, 2008, news release, our State reclaimed its number one rank among all the states as a perennial legal hellhole. The American Legislative Exchange Council (ALEC) has ranked the State 50th for our liability system including judicial impartiality.

Even the Nation's elite legal body rebuked the State's flawed legal system. In the February 2009 issue of the American Bar Association's (ABA) Journal Law News Now, criticism was leveled against our process in selecting Supreme Court justices. It was declared, that infusions of money from vested interest sources impugn the system's integrity with appearances that justice is for sale.

There is a perception that one cause of our State's poor ranking is lack of a robust oversight system designed to protect citizens from unscrupulous lawyers. The State Bar, which is supervised by the West Virginia Supreme Court, is responsible for policing the ethical and professional conduct of our lawyers. On the Bar's Web site (www.wvbar.org) information regarding the Lawyer Disciplinary Board is available and it is stated, "West Virginia lawyers have adopted high standards of ethics and professional competency and they strive to maintain those standards."

Two sentences later it is stated, "No trade or profession has rules of conduct which are more exacting or more vigorously enforced." When citizens communicate with personnel at the Bar about conflicts with a lawyer, they are advised that a complaint can be filed without need to hire legal counsel. Also, they are assured that all complaints are thoroughly investigated, but they may not know that lawyers dominate the "investigations".

Another factor is that the Disciplinary Board's Chief Counsel is seemingly empowered to unilaterally decide on merits of a complaint. Also, when citizens file an appeal, the Chief Counsel's decision can apparently be rubber stamped with no verification that it was even read and evaluated by other officials. That brings to mind Lord Acton's famous quote that "Power tends to corrupt, and absolute power corrupts absolutely."

Citizens perceive that the intricate involvement of lawyers with issues affecting fellow lawyers has inherent conflict of interest implications. For example, if the Bar's rules are read carefully, it is evident that it exercises wide discretion in its oversight capacity. Seemingly, loopholes exist to authorize it to forgo discipline for lawyers who engage in misconduct.

Another point is that the Lawyer Disciplinary Board's composition is two-thirds lawyers and one-third non-lawyers. All members are appointed by the President of the Bar's Board of Governors. West Virginians are entitled to question if the appointments are merit-based and do the appointee's have demonstrated abilities to reason analytically, avoid succumbing to politics, and be immune to pressures which could stem from forces within the legal system?

When a complaint is filed, the Bar submits it to the lawyer involved to immediately pit a layman against a person highly trained in mounting legal defenses. From the outset that disadvantages common citizens. For an illustration, how often can a West Virginian recall hearing a lawyer involved in wrongdoing admit to inappropriate behavior? The standard response is for them to argue that they are the aggrieved parties, and they maintain that citizens who oppose them are at fault. The behavior suggests to laypeople that lawyers are programmed to never admit mistakes.

Citizens seemingly have extraordinary heavy burdens of proof to achieve justice from the State Bar. I understand that in West Virginia hundreds of complaints are filed annually against lawyers, but the Bar reportedly rules against complainants more than 95 percent of the time. The statistic tracks with trends throughout the Nation disclosed by the Help Abolish Legal Tyranny (HALT) organization.

HALT summarized a 2007 ABA report involving 123,927 complaints. Only 3.5 percent of the cases resulted in discipline for lawyers. HALT also reported that 84 percent of the respondents in a Gallup poll did not believe that the legal profession has high ethical standards. Also, in the ABA's Law News Now (March 2009) issue there is an article pertaining to West Virginia's corrupt legal system. It was reported too that in multiple surveys, "80 percent of the [American] people believe that money influences judicial decision-making."

That is highly unfortunate because in our Pledge of Allegiance we learned from childhood years that in America we have "Liberty and Justice for all." Nothing is in the pledge to infer that Lady Justice responds to outcries of citizens for justice with the proviso that they must have money and political connections.

To validate how Americans can harbor negative opinions about the legal profession in general, The Federalist Number 97 (www.constitutionalguardian.com) pertains to a thought provoking viewpoint. The author who purportedly is a constitutional scholar signed off as Publius II. He argued that temptation is the root cause of arrant lawyers. He cited four factors including: exposure to bountiful opportunities for misconduct, low risks of discovery, low probability for swift and harsh punishment, and peer pressure.

The peer pressure factor was attributed to prevailing beliefs that "everybody does it" to make misconduct appealable to some lawyers.

When citizens consult with lawyers to be convinced that there are valid grounds for a Bar complaint and a lawyer is hired at great expense to write and file a complaint, that does not guarantee that justice will be served by the Bar. The Bar's response to a complaint can include: citing of insufficient evidence of wrong doing, a lawyer was not involved in any misconduct to suggest that lawyers can follow rules separate from societal norms, a lawyer's work may have been slipshod, but that did not constitute grounds for discipline, a citizen misinterpreted what a lawyer did, a complaint was not filed within prescribed time limits, and a lawyer's conduct was not flagrant enough to merit discipline.

The attitude can be conveyed to the public that anything a lawyer does can be over looked by the Bar, particularly for complaints which escape the news media's scrutiny.

The Bar will disclose information about numbers of complaints filed against a specific lawyer in response to a citizen's request. Although there can be complaints on record and the Bar has issued clean bills of health, the existence of complaints can be a factor to consider before hiring a lawyer.

After the Bar clears a lawyer, a citizen retains the right to pursue a complaint in court, but lawyers know that average citizens usually lack financial resources to use the legal system effectively. A financial deterrent exists because law suits can cost tens of thousands of dollars. Besides prohibitive costs, it can take years for a case to advance through all layers of the court.

Incidences of wrongdoing by lawyers may be more prevalent in West Virginia than suspected. It is rare if a citizen, family member, or friend has not had experiences with lawyers believed to have been unscrupulous. Additionally, it is common for lawyers to scoff at threats of a Bar complaint. That is because they know that for the overwhelming percentage of complaints, disciplining by the Bar is rare.

Another facet is that the Bar is not required to disclose its affairs in detail to make it subject to full transparency and accountability. That special status impedes the intervention of checks and balances which are cornerstones of our democracy.

Also, it can take up to two years for the Bar to rule on a complaint. The delay is an example of the adage that "justice delayed is justice denied." Regardless of the causes, the lack of effective oversight of the State's lawyers is a sterling example of a failure of self-regulation. In the Bar's Rules of Professional Conduct an argument is mounted for the legal profession's necessity to be self-regulating and accountable only to the legal establishment.

That position is uncomforting to West Virginians concerned about the reputation of the State's legal climate and observations about failures of self-regulation in general which have brought our Nation to the verge of financial ruin.

There are several books targeted to laypeople who wish to be wiser consumers when dealing with lawyers. One book is entitled, "Dancing With Lawyers" by Nicholas Carroll. Among numerous subjects, Mr. Carroll described the tendency of disciplinary bodies to be lax when dealing with their members by stating, "With the exception of stealing money in trust, the index of outrage is not how damaging or dishonest the lawyer was, but how flagrant he was."

A second book is entitled "How Lawyers Screw Their Clients and What You Can Do About It" by Donald E. deKieffer, Esq.; a third book's title is "It's Time To Wake Up And Smell The Lawyers" by Greg Hickman. Mr. deKieffer, an internationally famous lawyer, suggests that greed is the primary cause of lawyers preying on the public.

Most of his book pertains to problems associated with lawyers who focus on billable hours instead of efficiency and service to clients. Hickman maintains a website devoted to lawyer issues (www.power-of-attorneys.com). A fourth book is HALT's "Using a Lawyer" by Kay Ostberg and Theresa M. Rudy. It is designed as an instruction manual for citizens. One item emphasized in the book is the right of citizens to have "an accessible and accountable legal system."

There is another publication circulating throughout West Virginia entitled "Woe Unto You Lawyers!" by Fred Rodell which can be accessed on Google by entering his name. It contains a troubling account of issues relevant to imperfections in the legal system by a person who is identified as a lawyer. Similar to numerous truisms in life after citizens have bad experiences dealing with lawyers, it provides little comfort from reading the referenced books other than to enhance their preparedness for future dealings.

Innumerable subjects are addressed in the five books including: how bills are inflated by performing unnecessary legal research and other tasks, why lawyers who run "one stop law offices" increase client's bills by charging for learning on the job when a specialty area of law is involved, how lawyers profit by encouraging and prolonging legal disputes, how lawyers can maneuver to make it cost prohibitive for citizens to use the legal system to get justice, and why disciplinary bodies are lenient in enforcing codes of conduct espoused for lawyers.

Lawyers everywhere may have to be more reasonable with their fees because the ABA reported that New York law firms are laying them off in droves. Maybe that signals a trend, and the free market's law of supply and demand will force artificially inflated legal fees downward. West Virginians can take advantage of the development by being wise consumers through shopping around for legal services. Additionally, with increasing use of computers, access to lower cost, web-based legal services should contribute to lower legal fees.

When citizens discuss fees, it is common for them to state that 25-50 percent can be saved by finding competent and affordable lawyers who are devoted to serving the public. Lawyers opposed to improved trends of consumerism will be the same ones who haggle at Lexus and Mercedes dealerships to avoid paying full sticker prices.

From some lawyers, criticism of the State Bar will precipitate indignations laced with: denial that problems exist, and criticism is based on faulty information and misunderstandings. Blame deflection will be used with arguments that citizens are over reacting, and there will be suggestions that non-lawyers are incapable of making valid assessments about the Bar's functions.

Also, there will be predictable advocacy that self-regulation works, the legal profession is entitled to special status as a trust worthy self-regulator, and ad infinitum. A one phrase summary would be -- resolute advocacy for business as usual and criticism toward citizens who believe that reform is essential.

Without question the majority of our State's lawyers are honorable and they would undoubtedly champion improvements involving the State Bar's functions. The daunting challenge is what do we do West Virginians? When commenting on problem-solving General Chuck Yeager, a revered State hero, offered advice to focus on correcting and preventing problems instead of expending valuable time and resources on blame assignment.

That advice seems timely for issues affecting the State Bar and West Virginia's entire legal system. A respected legal system is necessary for functioning of our democracy. However, when the citizenry begins to mistrust and disrespect the system, that signals perilous times.

Armour lives in Glenville.