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Call me Ishmael. On second thought, don't. It's not my name. I just always wanted to say it, and, you have to admit, it is a proven catchy opener. But, hear me out. It could save you a
"fortune," maybe two "fortunes."
I read Scott Daniels' article "Is the Office of Professional Conduct the Grand Inquisitor? - What Lawyers Need to Know if
Faced With a Bar Complaint," in the March 2002 Utah Bar Journal, then promptly threw it in the trash in anger. But then, I have a notoriously bad temper - have thrown a lot of things
away in anger, including relationships I cherished, which I deeply regret.
In the case of Scott's article, however, the more I think about it, the more it angers me, and in a
strange sort of way, it pleases me that it angers me. A Far Side "sure, it hurts, but its a good kind of hurt" sort of thing. Let me make it perfectly clear, as our 37th
President liked to say, that I admire Scott Daniels. He was one of my favorite partners, twice. He is a good man. He has sound judgment - thanks to him, and others, I don't have to
"volunteer" my legal services to dead beats who have chosen to spend their money on drugs, alcohol, or women, and just wasted the rest. I even give money for Scott's campaigns,
irrefutable evidence for my esteem for Scott. (The story is true that when a bum asked me if I had a dollar for a sandwich, I said "I don't know - let me see the sandwich.") Let
me also make it perfectly clear that, as far as I know, in 29 years I have never been the subject of a Bar complaint. A lot of complaints, but not a Bar complaint.
Scott's article
was even cute and clever. Not my kind of cute and clever, but cute and clever. What, then, is my beef with Scott's article? It's the same rage I feel when anyone thinks someone's
"rights" are somehow more important than anyone else's, especially mine. The same rage I feel when I'm subjected to a dragnet stop in Big Cottonwood Canyon the very day it was
in the morning newspaper our Supreme Court had said don't do it anymore. The same rage I feel whenever the big money boys tell us what's good for us when it's really what's good for them
and bad for us. The same rage I feel when . . . , you get my drift.
Scott notes "The process should embody full due process to both the attorney and the complainant . . .
." and "the adjudication of a Bar complaint is full due process . . . ." Terrific. Why, then, I ask, is it "that the process should bend over backward in favor of the
complainant?" Why does the Commission "unanimously reject" proposals to discourage frivolous complaints? As if discouraging frivolous complaints were a bad thing, as if
discouraging frivolous complaints equates to "shielding" lawyers from discipline, or perpetuating a "good ole boy" system.
Scott is correct that, as things now
stand, this is "the price we pay" for being a lawyer. I represented a lawyer caught up in this process on the most frivolous of complaints. A good lawyer, a good man. The
complainant complained from the Utah State penal system, where he was duly incarcerated, on a wholly inadequate sentence, based on his own guilty plea and providency inquiry, which were
diametrically opposed to the substance of his Bar complaint. After obligatory jousting, the OPC decided the claim was not meritorious. The committee chair nevertheless ordered the OPC to
proceed because the allegations were so serious. Now, think about this. The more serious the allegations, the less process is due the lawyer? The lawyer did, as Scott notes, "spend
huge amounts of time" and a "fortune" (I was the recipient), not to mention truly anguishing over the rank injustice of it all. Fortunately, we drew a good panel and an
experienced chair with a brain and a backbone. Other than the "huge amounts of time," and don't forget the "fortune," "justice" was done?
So, here is
a "modest proposal" (modest, I fear, in the sense of Jonathan Swift's proposal that the solution to the great Irish potato famine was to eat surplus babies): let's do vigorously
"take care of our own bad apples," but let's insist that even a lawyer is entitled to the same due process as anybody else (a radical concept, I know), and let's not "bend
over backwards in favor of the complainant," and let's adjust our attitude that proposals to discourage frivolous complaints are a good thing, rather than a bad thing, and let's
categorically reject the notion that bending over backward in favor of the complainant and against the lawyer is somehow "due process" and "the price we pay" for being
a lawyer.
If we sell out our own rights in a public relations scam, we cheapen and trivialize those rights for all. Not to mention, you have to ask yourself, would you hire a
lawyer who won't even stand up for his own rights? Rights are not self-executing. Somewhere, sometime, somebody has to stand up. You know, Runnymeade, Valley Forge, Gettysburg, Normandy,
Guadalcanal, Mount Suribachi, and so on. Eternal vigilance is still the price of liberty. (I wish I had said that.) Unless you are one of "most" (nobody polled me - I guess my
vote didn't count) lawyers who "agree the process should bend over backward in favor of the complainant," don't tolerate anything less than an even shake. Be pushy. Speak out
against nonsense like "bending over backward in favor" of either party is "due process." It's not - it's "favoring" one party over another, by definition.
Make your views known. Will you stand up for your own rights? It's too late when you're already caught up in the machine. Then, I will stand up for you, but only if you have the
aforementioned "fortune," maybe two "fortunes," if I can get it.
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