A coalition of lawyers is fighting to open the industry's secretive disciplinary system. 

Raising the Bar

For two years, angry clients flooded the Virginia State Bar with complaints about Norfolk lawyer Andrew R. Sebok. They told similar stories: Sebok took their fees but didn't finish their work and seldom returned calls. An elderly woman says Sebok never finished her divorce. An illegal alien says Sebok filed his immigration papers too late. Convicts say Sebok filed appeals too late. Sebok says he was clinically depressed and had trouble focusing on work. In September, after a two-day public hearing, the bar suspended Sebok's law license for nine months. That took care of six complaints, but 10 more are pending. What are those? Are they minor violations or egregious misdeeds? It's impossible to know. The State Bar won't say. The 10 complaints remain confidential, as does the bar's investigation of them, even though bar counsel and investigators found the complaints credible. This is how Virginia lawyers police one another. It is a disciplinary system that is still largely closed and secretive. Information about only the most serious cases is released to the public, and then only near the end. Each year, the Virginia State Bar receives about 3,000 complaints of lawyer misconduct. They come from clients, judges and lawyers. About 7 percent result in public discipline — reprimands, suspensions and disbarments. Most are dismissed because they are unfounded or for lack of jurisdiction. They remain secret forever. Sometimes, even the people who file complaints do not know the outcome. That may change soon, but not without a fight. As public confidence in lawyers lags, bar President Joseph A. Condo of Vienna is pushing to open the agency's disciplinary system. He proposes opening complaints and investigative reports to the public after bar staff members find "probable cause" that a lawyer committed violations. It is one of Condo's priorities, but he is meeting resistance from his own members. On one side are lawyers who believe that their reputations will be trashed if frivolous complaints are aired publicly too early. They fear that opening the system will hurt lawyers. "We ought to be very careful that we do not sacrifice the legitimate rights of professionals and the agencies that regulate and license them on the altar of political correctness," McLean lawyer Alan M. Winterhalter recently wrote to the bar. On the other side are Condo and his allies, who believe opening the bar — not totally, but more than now allowed — will help restore public confidence in lawyers and the legal system. "The way it looks right now, you've got the bar self-regulating in kind of a closed environment, after there has already been, in essence, a probable-cause determination," says Shawn A. Copeland, an associate at Richmond-based Hunton & Williams. Considering such a closed environment, Condo says, "It's natural for people to wonder if there's something fishy going on behind closed doors." As it happens, he says, lawyers do a good job of policing themselves, "but how would the public know that?" This summer, Condo appointed a 20-member task force of lawyers, legislators and lay people to study if, and how, it should open the system. The bar may endorse a plan next year. The idea so alarms some lawyers that Condo recently had to reassure them that he does not support a completely open system. Condo opposes making all bar complaints public. He endorses opening only complaints that are deemed credible by bar investigators and staff lawyers. The Sebok case "is an example of the kind of case that I have in mind," Condo says. "It really points up the problem of public confidence. They're the people we're expected to be protecting." And the Sebok case is hardly unique. This summer, the bar reprimanded a prominent Norfolk lawyer, state Del. William P. Robinson Jr., for mishandling a criminal appeal. In a public notice, the bar cited Robinson's "prior disciplinary record." What prior record? Until that moment, no one outside the bar knew that Robinson had a disciplinary record. Like most bar files, Robinson's private disciplinary record is secret. Bar officials cannot discuss it, and Robinson chooses not to, except to acknowledge that he has appeared before the bar before. Robinson believes the system doesn't need fixing. And he's got plenty of company, judging by the reaction to Condo's proposal. In the past decade, bar leaders have resisted every attempt to open the system to greater public scrutiny - even after a 1995 legislative audit urged the bar to take action. Many Virginia lawyers, maybe a majority, agree with Robinson. The system works like this: A complaint is filed. A bar staff member decides whether it's an issue over which the bar has jurisdiction. Two-thirds of all complaints are dismissed at this stage. Then the lawyer responds, the complainer replies, and the bar counsel decides if an investigation is warranted. If so, an investigator talks to both sides and reports facts and conclusions. The bar counsel then sends the complaint to a three-member subcommittee — two lawyers and a non-lawyer — that decides if there is "probable cause" to believe a violation occurred. That is the point where Condo would make cases public, after probable cause is found. Currently, cases remain secret until later in the process. After the "probable cause" finding, the case goes to a district committee, which hears witnesses and arguments. Those hearings are closed. Even the fact that there is a hearing is confidential. The committee can exonerate or reprimand the lawyer, publicly or privately. If the violation is serious enough, it is referred to a statewide board located here that can exonerate, reprimand, suspend or disbar the lawyer. That is when a case becomes public under the current system — after a case is referred to the state board. "And that's the appropriate point at which it should be public," Robinson says. Even so, not much is released except the fact that there is a case, and the hearing's time and place. Details, including what kind of violation is alleged, remain secret. All documents, including the investigator's report and the district committee's findings, remain confidential. A final hearing in Richmond is public, as is the disposition. All public actions are listed at the bar's Web site, www.vsb.org. And that's enough, many lawyers say. "Now more than ever, we must protect members of the bar against unfounded accusations, which, if they were given publicity, might cause irreparable harm," wrote Newport News lawyer Wayne R. Spencer. Aside from lawyers, there are other interests to protect, says Dennis Gallagher, a lay member of the bar's disciplinary board since 1995. "What concerns me greatly is how much sunshine is going to be shone on the complainants," he says. Gallagher, who is also executive vice president of the Virginia Beer Wholesalers Association in Richmond, says making more cases public could unnecessarily reveal details of clients' lives — messy divorces or bankruptcies, for example. The system seems to be working, Gallagher says: "If probable cause is found, [the case is then made public] and yet the charge is dismissed, then what good has been served?" Richmond attorney Copeland says the issue is one of openness. As long as probable cause has been determined in a reliable way, Copeland adds, there is no reason the process should be secret. "There are lots of … proceedings that people have to go through in an open environment where people are exposed to potentially negative impacts - even if they are vindicated in the end," he says. Condo and others think the bar can do more. "Thirty-four states have more open disciplinary processes than Virginia," Condo told bar members. In Virginia, the public thinks that "behind closed doors, we are letting unethical lawyers off with a slap on the wrist and turning them loose to prey on the public again," Condo wrote in an open letter to colleagues. On April 25, police broke one of the biggest lawyer-theft cases in Virginia in years. That day, police arrested Virginia Beach lawyer C. Kent Allison and accused him of stealing from clients. Allison quickly admitted taking between $1 million and $2 million from at least 19 clients. He also surrendered his law license. Four years earlier, some angry clients sued Allison over an allegedly botched $2 million motel deal. Two years later, an angry client sued Allison for allegedly botching a foreclosure. Were any bar complaints filed against Allison that might have alerted a suspicious bar investigator long before his arrest? It is impossible to know. Because Allison surrendered his law license, his bar file is now sealed forever. - Style Assistant Editor Jason Roop contributed to this story. Complaints
The Virginia State Bar seeks comments from lawyers and non-lawyers on whether to open the bar's disciplinary system. Comments can be sent by Nov. 15 to: Virginia State Bar c/o Rodney A. Coggin
707 E. Main St., Suite 1500
Richmond, VA 23219 To file an ethics complaint with the bar, call 775-0500.


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