How To Do A Background Check On Your Arizona Lawyer
Arizona's attorney disciplinary system appears to be more transparent than the sytem used in many states. It is, for example, possible to obtain online judicial opinions that detail what specific lawyers have done to warrant being disciplined. But, as is explained below, if you are considering hiring an attorney in Arizona, it isn't easy to determine online whether your lawyer has ever been disciplined.
The Attorney Discipline Unit of the Arizona Supreme Court handles formal disciplinary charges against lawyers. The Court's website identifies lawyers who are currentlly facing disciplinary charges. For each of these attorneys, it possible to review the report submitted by the Hearing Officer who heard the evidence in the case against the lawyer as well as the decision of the Disciplinary Commission, which in effect acts as an appealate body and reviews the Hearing Officer's decision. Both the Hearing Officer's report and the Disiciplinary Commission's review are accessible online in pdf format. In addition, the Attorney Disiciplie Unit publishes a Matrix that identies all disiciplinary decisions made by the Arizona Supreme Court since 1986. The Matrix also identifies disbarments and suspensions, the most serious violations, between 1981 and 1985. Beginning in 2003, the Matrix includes a link to the actual decisions made by the Hearing Officer, the Disciplinary Commission, and ultimately by the Arizona Supreme Court. For cases decided between 1981 and 2002, only the summaries of these decisions are available online. It appears that if you want to receive the actual disiciplinary reports for cases decided before 2003, you need to call the Supreme Court and pay for copies of the disciplinary record to be mailed to you.
The authorities in Arizona ahould be commended for including the full-text versions of the disciplinary decisions. Too often, summaries of disiciplinary proceedings are written in such a dry style—and contain so little information—that it is difficult to get a full picture of what the lawyer did and why they received the punsihment they did. The disciplinary decisions often reveal what arguments were made in defense of the accused attorney as well as the judge's conclusion as to whether the accused lawyer acted defiantly or was contrite. These can be important details to know if you are considering hiring a lawyer who has previoulsy been disciplined.
Arizona's online reporting system does, however, suffer from a serious flaw; its search feature doesn't work very well. In theory, it should be possible to conduct an online search to determine whether a particular lawyer has previously been disciplined. But when I entered the names of specific lawyers into the search engine, the results were essentailly useless. The results linked to the Matrix for certain years but the names of the specific lawyers I searched for were nowhere to be found.
Thus, Arizona's online system is helpful when you want to find out information about a lawyer who you know has already been disciplined. It is particularly user friendly when you know the specific year in which the lawyer was disiciplined. But if you don't know this information and you want to find out whether a particular lawyer has been disciplined, the Supreme Court's website isn't very helpful.
In a future post, I'll report on what to expect when you call the Arizona Supreme Court to determine whether a particular lawyer has been disciiplined. But even if it is possible to find out this information by phone, the fact that this information isn't online means that far fewer clients will be able to make an informed decision about one of the more important decisons they make in their lives—which attorney to hire.
How To Find Out If Your Lawyer Has Been Sanctioned
I have previosuly written about how you can conduct a background search to determine whether your lawyer has been disciplined by either the Supreme Court or the Bar Association of the state or states in which the lawyer is licensed. If you are hiring a lawyer to represent you either as the plaintiff or defendant in a lawsuit, you should also find out whether the lawyer has been penalized by a court for filing a frivolous lawsuit or otherwise acting undreasonably in connection with the lawsuit.
The most well known court-ordered penalty or sanction is Rule 11 of the Federal Rules of Civil Procedure. It provides that, by signing a document filed with the court, the lawyer is pledging that the document is not being used for an proper purpose, is based on existing law or a good faith argument for a change in existing law, and is not frivolous. In addition, Rule 11 empowers federal courts to fine and otherwise punish lawyers who violate the Rule.
A sanction imposed under this rule must be limited to what suffices to deter repetition of the conduct or comparable conduct by others similarly situated. The sanction may include nonmonetary directives; an order to pay a penalty into court; or, if imposed on motion and warranted for effective deterrence, an order directing payment to the movant of part or all of the reasonable attorney's fees and other expenses directly resulting from the violation.
Many states require lawyers who have been sanctioned more than a particular amount, often $1000, to notify the applicable disciplinary authority of the penalty. This requirement has had an unfortunate unintended consequence. Too many courts are hesitant to impose a sanction that will trigger the disclosure requirement. As a result, judges impose financial sanctions just below the disclosure limit. The lawyer's conduct therefore doesn't come to the attention of the disciplinary authority, and the amount of the fine is so low that it doesn't have much a deterent effect on the lawyer.
Many states have established court-ordered penalities that are comparable to those found in Rule 11. Most states also have passed laws that provide specific penalties and fines for lawyers who have been found to violate the rules relating to discovery—the process by which the parties to a lawsuit request and exchnage information from each other.
There isn't a sure fire way to determine whether your lawyer has been sanctioned by a court. Most lawyers don't handle lawsuits in federal court. Thus, Rule 11 doesn't directly apply. And even when a state has enacted a similar rule, it's often called something other than Rule 11. It can be worthwhile to enter your lawyers name in Google or some other search engine and see whether anything comes up when you look for discovery or litigation sanctions. Sometimes your best bet is to ask the lawyer during the interview whether they have ever been sanctioned and if so how much and for what.
The Two Kinds Of Attorney Background Checks
Lawyers are generally subject to two kinds of background checks. But the results of only one is visible to an attorney's potential or current clients. The more visible bacjground check relates to what happens after someone gains the privilege of working as a lawyer. This is the check that can reveal whether a lawyer working in a particular state has been disciplined and, if so, for what kind of misconduct.
The less visible and potentially more important background check takes place earlier--before someone can obtain a law license. Most of the people I come across aren't aware that most lawyers working today have gone through and PASSED a fairly rigorous background check before they could start working as a lawyer. In most states, it isn't enough to pass the bar exam. You need to pass a moral character evaluation. In some states this evaluation is extremely detailed. For example, before I could work as a lawyer in California, I had to notify the State Bar of California of every place in which I had lived since I was 18. Also had to list every employer for at least the preceeding 10 years, provide access to my academic file for every school I had attended since high school, as well as providing a handful or letters of recommendation from people could attest to my moral character. The State Bar of California took almost nine months to conduct this background check, which included a criminal history and credit review. Guess who paid for the State Bar's investigation? I did. That's the norm. if you want to be a lawyer--you need to pass one of these moral character reviews.
Please take this into consideration the next time you hear some talking head pontificate about how all lawyers are inherently dishonest.
How To Conduct A Background Check On Your California Lawyer
Before you decide to hire a lawyer, find out if they have a disciplinary record. In most states, either the Supreme Court of that state or the Bar Association is responsible for disciplining lawyers who practice in that state. In California, the Web site of the State Bar of California is the best place to do a background check. Lawyers who are members of the California Bar receive a monthly publication, California Bar Journal, which includes a list and description of recent disciplinary actions taken against California lawyers. Since so few clients receive this publication, your best bet is to check out a lawyer's online profile.
By way of example, here is the online profile of one of the attorneys, Laurence P. Posner, whose suspension is described in the August 2009 issue of the Journal. You can find a specific lawyer's online profile by clicking on the "Attorney Search" link that appears on the top right of the State Bar of California's home page. From there you can type in the name of the lawyer you are interetsed in, and if you only have partial information about a lawyer, you can use the "Advance Search" feature.
If a lawyer has been disciplined since 2005, you can get fairly detailed information about many kinds of discipline. Let's use Mr. Posner as an example. The top of his profile indicates that he is an Active Member; that means that he is entitled to practice law in California. But if you scroll down, you will see that in January 2009 he was suspended. Suspensions are the second-most serious category of disclipline imposed on California lawyers and are the most important category that you need to worry about as a client. The most serious category of discpline that can be imposed is a disbarment. That means that an attorney is prohibited from practicing law. Lawyers who have been disbarrd can petition the California Supreme Court to be reinstated, but this takes years, and is fairly uncommon. Thus, the most serious discipline that an active lawyer could have had is generally a suspension.
In Mr. Posner's case, he was suspended for 90 days. Technically, the sentence was two years suspension, but the actual length of suspension is only 90 days. How do I know that? It says so in the summary that appears at the bottom of his online profile. This is the same summary that is printed in the California Bar Journal that is mailed to lawyers.
January 23, 2009
LAURENCE P. POSNER [#170536], 42, of Alhambra was suspended for two years, stayed, placed on two years of probation with an actual 90-day suspension and was ordered to prove his rehabilitation, take the MPRE within one year and comply with rule 9.20. The order took effect Jan. 23, 2009.
Posner stipulated to two counts of misconduct stemming from a personal injury case in which his client was hit by a car. Posner worked for the Law Offices of Kenneth Jacobson.
In a written fee agreement, the firm and the client agreed that the fees would be 25 percent of the total settlement. According to the stipulation, Posner consulted with Jacobson, who said the “common fund doctrine” allowed the firm to retain one-third of the funds paid to the insurer as attorney’s fees. He also said the firm did not have to notify the client that it would keep that money under his mistaken belief that reimbursement to the insurer was independent of the attorney-client retainer agreement. And he told Posner to do his own research about the common fund doctrine.
The matter settled for $275,000; the insurer claimed a $63,241 reimbursement that was reduced to $42,051 (two-thirds of the medical benefits paid on the client’s behalf). The firm kept the remaining $21,190 as fees based on the mistaken understanding of the common fund doctrine.
When the client, who received more than $128,000, learned about the discrepancy, she demanded an explanation. Jacobson told Posner the firm had the right to keep the $21,190 and he relayed that information to the client. After she complained to the bar, the firm issued a check to her for $21,190, with an apology for misunderstanding the common fund doctrine.
Posner stipulated that he collected an unconscionable fee and committed acts of moral turpitude by making misrepresentations to the client about both the amount of the attorney’s fees and the amount of reimbursement to the insurer.
In mitigation, no clients were harmed and Posner submitted evidence of his good character.
A few of the terms in the description require additional explanation. First, the MPRE refers to the Multistate Professional Responsibility Exam. It is the exam that new lawyers have to pass in order to become lawyers. It tests a lawyer's knowledge of the basic ethical rules. I took it as a thrid-year law student; it is a separate exam from the bar exam, but you have to pass it in order to become a practicing lawyer. Here, Mr Posner was ordered to take the exam again and pass it within one year. The summary also indicates that Mr. Posner "stipluated to two counts of misconduct." A stipulation is just a fancy word for agreement. In other words, Mr. Posner didn't challenge the charges against him. He agreed that he committed two wrongful acats against a client in a personal injury case. In fact, you can see the document that Mr. Posner signed, which describes what he agreed or stipulated to. That document is linked to his online profile as a .pdf file that you can download and print. If you wanted to know more information about Mr. Posner's disciplinary file, you can pay to have that file copied and mailed to you. I wish this information was more readily available to clients for free, but at least this information is available in California. It isn't as readily available in some other states.
Thus, at least in California, you can conduct a fairly decent background check on any lawyer who has been subject to serious discipline. There are, however, certain limitations to keep in mind:
- The online profiles of lawyers who were suspensed prior to 2005 are less detailed. If you want to see the summary that appeared in the Bar Journal, your best bet is to go to a public law library.
- if your lawyer was disciplined in another state, you need to search that state's records. The information on the State Bar of California's website only applies to discipline imposed in California.
- Not all kinds of discipline are disclosed. The website discloses the most serious kinds of discipline--disbarments, suspensions, and public reprovals. Repoval is just a fancy word for warning. Lawyers can receive a public warning as well as private warnings. The private warnings generally involve minor infractions. The warning goes into the lawyers file with the State Bar but is not revealed to other lawyers or to the public.
Because of these limitations, when you interview a lawyer, you should ask about all the states in which they have ever practiced and whether they have ever been dissciplined in any away, including priviate forms of discipline. If you ask these questions and check out their online profile at the California State Bar website, you will have dramatically increased your chances of uncovering a California lawyer's discipliary background. Of course, this is not the end of the matter. A lawyer without a disciplinary record can still be a lousy lawyer. But it would be crazy for you not to at least conduct a background check on every lawyer you are seriously considering hiring.
