Maryland Bar Bulletin
Publications : Bar Bulletin : December 2006

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MSBA's Professionalism Course Makes a Difference

~One of keys to decline in complaints against lawyers~

MSBA's new attorney professionalism course, now completed by more than 23,800 of the state's lawyers, is making a difference in Maryland's Bar, evidenced in the continuing drop in annual complaints against state lawyers. The Attorney Grievance Commission (AGC) credits MSBA's 14-year-old professionalism course, along with MICPEL's CLE programs, ethics classes in law schools and other CLE courses, as the key to declining attorney grievances in recent years in Maryland. For the last two years, the total number of complaints and the total number of docketed complaints against attorneys are both down, while the number of practitioners steadily rises.

"Maryland's Bar is super," declares Bar Counsel Melvin Hirshman. "We are getting fewer complaints and fewer investigations, so apparently with MSBA's professionalism course, more CLE and law school programs the Bar seems to be getting better. Every year there are fewer complaints and a greater number of new admittees; we now have between 32,000 and 33,000 lawyers, and at the end of the year the number of sanctions are down from the previous year. I attribute this to the betterment of the lawyers in the profession."

The Attorney Grievance Commission of Maryland's 31st Annual Report (July 1, 2005 – June 30, 2006) indicates that the number of docketed complaints against the state's 32,390 lawyers dropped for the third year in a row. The total number of complaints has dropped to 1,444, down from 1,562 last year and 1,610 the previous year. Last year, there were 400 docketed complaints against lawyers, compared to 469 in 04-05 and 485 in 03-04. The number of disbarments remained the same at 10, a miniscule percentage of the state's 32,390 attorneys.

Communication remains the biggest problem, and most client complaints involve e-mail communication with their attorneys. In today's high-tech world, consumers expect immediate electronic access to everything, including their attorney. "Clients simply demand an instantaneous return e-mail," Hirshman explains. "Of course, this is totally unreasonable and most of these complaints are dismissed as unfounded, but this is the wave of the future."

"Clients are absolutely impatient," asserts Bar Counsel. "I get complaints now that show e-mails between the lawyer and client and the client is often complaining because the lawyer is not responding quickly enough. Essentially, communication today means responding to e-mails and this is the modern way of doing business, so lawyers must deal with it."

Hirshman warns lawyers that one problem with this mode of communication is that lawyers sometimes respond to a client instantaneously "without taking the time they need to think it through" and this can lead to problems. He also reminds lawyers that these responses "take time that would be spent taking care of other client problems." Bar Counsel often reminds the complaining client that lawyers have a lot of clients, but that client only has one legal matter. "Clients don't understand this."

According to the AGC report, the law practice areas that attracted the highest number of docketed complaints (out of a total of 400) were civil litigation with 57, followed by family law at 50; criminal law at 47; personal injury and bankruptcy at 43 each; real estate at 30; and probate at 23. Baltimore County attracted the largest number of the 400 docketed complaints with 74, then Baltimore City at 68, Montgomery County at 60, Prince George's County at 59 and Anne Arundel County at 19.

Of the 74 disciplinary actions this year, 19 fell into the area of competent representation, diligence and communication, followed by 11 in dishonesty, fraud, deceit and misrepresentation, nine misconduct – prejudicial to administration of justice or the unauthorized practice of law, nine theft of client funds, fiduciary funds or law firm funds and six failure to maintain complete records, account to client or others, maintain trust account or safeguard funds.

"We are always concerned about the few errant lawyers who abuse their fiduciary duties by mishandling funds," laments Hirshman. There were 95 overdraft notices received this year, 64 of which were dismissed. Bar Counsel adds that the Court of Appeals is now working on a new required record-keeping rule, and if it is adopted and goes into effect (probably not until 2008), then the AGC will go around the state talking to lawyers about it and hopefully that will help some lawyers so they know what records they should be keeping.

Conditional Diversion
Last year, there were 71 attorneys involved in conditional diversion agreements, as compared to 65 the year before. Now in its fifth year, conditional diversion, Rule 16-736, has succeeded as an attorney disciplinary alternative to the traditional disciplinary procedure. Contingent on the offense, attorneys have the option of conditional diversion.

The Rule specifies that, if the alleged offense was not the result of a willful or dishonest act, was not sufficient to warrant immediate discipline and was subject to remediation and resolution, the attorney can be referred to conditional diversion at the discretion of the Attorney Grievance Commission. This process is intended to correct medical or professional problems or deficiencies that can be rectified with appropriate educational courses, mentoring or a monitor.

"Condition diversion is working out just fine," stresses Hirshman. "We have only had to revoke a couple of them, and they are quite popular with our peer-review panels, and we are agreeable to this if we think it is proper. So at any given time we have about 60-70 ongoing agreements." It has gone over so well in Maryland that other states are now interested and have been studying our model.

According to the report, some of Maryland's agreements have resulted in "apologies to clients and others; refund of fees, attendance at MSBA's professionalism course or CLE courses; attendance at an all-day conference for solo practitioners; courses in legal ethics, return to law school for a class in a substantive area of the law and monitoring by MSBA's Lawyer Assistance Program."

Conclusion
To avoid complaints, Bar Counsel advises attorneys to limit their number of legal fields. In today's legal world, lawyers should "concentrate on fewer numbers of legal fields because they must keep up with changes in them all and there are constant changes in every area of the law," Hirshman notes. "It is hard to be a generalist and remain proficient in all areas today."

Hirshman also recommends that lawyers: (1) have a written fee agreement; (2) be selective when choosing clients; (3) maintain a regular billing system; (4) know when to withdraw from a case and do so early in the process; (5) make sure the client understands exactly what services the attorney is charging for and ask for questions regarding fees; and (6) try to see things from the client's perspective and understand what the client is feeling. Further, Hirshman encourages all Maryland lawyers to join the Maryland State Bar Association and their local bar association and to actively participate and take advantage of networking opportunities and Bar programs like the Ethics Committee and Ethics Hotline.

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Publications : Bar Bulletin: December 2006

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