Q & A With Hal R. Lieberman

Attorneys who bully or neglect their clients, steal from escrow accounts, overbill, lie to authorities and generally ignore the Code of Professional Responsibility have been the focus of Hal R. Lieberman’s practice for more than 25 years.

Mr. Lieberman honed his skills in the legal ethics and professional liability field as assistant bar counsel in the office of the bar counsel in Boston, then as principal trial attorney and chief counsel to the Appellate Division, First Department, disciplinary committee, a post he left in 1998.

While at the court, Mr. Lieberman founded the Complaint Mediation Panels of the Departmental Disciplinary Committee. Designed to include bar group participation, the program focuses on cases that do not involve serious ethical violations and offers clients a private, informal means of settling a dispute with an attorney. Since 1999, he has served as a special mediator on the complaint mediation panel of the New York City Bar.

A self described “poverty lawyer,” Mr. Lieberman also held the position of executive director of Central Massachusetts Legal Services Inc. and associate appellate counsel in the New York Legal Aid Society’s Criminal Appeals Bureau in the 1970s. He has taught legal ethics and professional discipline at Harvard Law School, Fordham University School of Law, Hofstra University School of Law, Benjamin N. Cardozo School of Law and New York Law School. In 2007, he was appointed to the adjunct faculty at Columbia Law School

Mr. Lieberman graduated from the University of Chicago and Harvard Law School. He has lectured and published numerous articles on legal ethics, including in the New York Law Journal, where last March he wrote that because of the disjointed grievance structure in this state, where each of the four appellate departments separately oversees all aspects of attorney discipline, the availability of procedural rights and substantive outcomes may depend on the location of a lawyer’s principal office (New York’s Lawyer Disciplinary System-Is It Fair?, NYLJ, March 1, 2010).

Q: From your experience as a prosecutor and now defense counsel, what are the most common factors that cause lawyers to become targets of a complaint or investigation?

A: Lack of basic communication skills; overeagerness to take on new business; no knowledge of the Rules of Professional Conduct; and, in some instances, just plain poor judgment. Substance abuse or emotional/psychological problems sometimes play a role as well.

Q: For what infraction are attorneys most often disciplined?

A: There is general agreement that neglect of client matters is the most common violation. Other infractions that often lead to discipline include failure to adhere to fiduciary obligations regarding client property or funds, sloppy accounting and bookkeeping, and an assortment of actions that at bottom involve dishonesty or deceit. Fee disputes occasionally morph into disciplinary cases when lawyers overbill or engage in unnecessarily aggressive fee collection practices.

A surprising number of lawyers are also disciplined as a result of criminal convictions completely unrelated to the practice of law, or for other purely private acts of misconduct that reflect adversely on the lawyer’s integrity. There is one famous case where a lawyer who plagiarized her master’s thesis was suspended from the bar for two years. Lawyers are held to a higher standard than the average citizen, and this applies 24/7.

Q: What is the worst thing an attorney under investigation can do?

A: Fail to respond. Your readers might be surprised by the number of lawyers who “stick their heads in the sand” when they receive a complaint, even one that is borderline frivolous. The failure to respond automatically escalates the seriousness of the matter. The second worst thing is a response laced with anger and resentment directed at the complainant or at the committee for having the temerity to suggest that the lawyer did something wrong. These are bad strategies.

The credibility of a complainant can and should be attacked where relevant, but in a proper, professional manner based on solid evidence. Any attorney who is the target of a serious (license or reputation threatening) investigation should not hesitate to seek legal representation, and in less severe cases, at a minimum the attorney should, before putting pen to paper, elicit the advice of an experienced lawyer who can take an unbiased look at the situation. When it comes to disciplinary complaints, I have seen too many lawyers, acting pro se, turn mole hills into mountains.

Q: What is the complaint mediation panel and what is its role in the attorney discipline process?

A: The complaint mediation process is not “voluntary,” as would be pure mediation. In fact, lawyers diverted to bar mediation must participate, or face possible referral back to the disciplinary system and a likely sanction. We recommended a bar complaint mediation program, jointly administered by the committee staff and local bar association panels, shortly after I became chief counsel in 1989. The idea was to divert minor complaints from the regular disciplinary system to special volunteer bar mediators who would attempt to resolve these lawyer/client disputes. The benefits would be smaller disciplinary caseloads and bar association participation in the disciplinary process (something that had been largely missing for many years). Most importantly, we saw mediation as a way for certain categories of aggrieved clients to truly be heard, and in the process to obtain a concrete remedy (as opposed to mere receipt of a letter from the disciplinary authorities that their former lawyer had been “cautioned,” “admonished” or the complaint “dismissed”).

Additionally, the target lawyer’s experience in the process was supposed to reduce recidivism while not causing a blemish on the lawyer’s professional record. We especially hoped to reach younger, more mistake-prone attorneys. I am very glad that the First Department approved our proposal, that the process has been in place for nearly 20 years, and that it has now been adopted statewide (see 22 N.Y.C.R.R. § 1220). I have been a volunteer bar mediator since I went into private practice in 1998.

Q: What are the strengths and weaknesses of the attorney discipline process?

A: This calls for a much longer answer then space allows. So, here is the truncated version, and I am only talking about New York. Strengths: honest, dedicated, independent professional staff; and, very able, fair-minded referees and committee members appointed by the courts.

Weaknesses: lengthy and often unnecessary delays in resolving minor complaints; lack of effective prioritization of complaints; absence of case management; inadequate resources; lack of uniformity of procedural rules among the four departments; and poor public perception of the disciplinary process, a concern that could be greatly reduced by more transparency.

Q: Over the years there have been allegations of favoritism or cronyism among the attorney panels and the subjects of disciplinary action. Have you ever seen that kind of behavior? Does the system leave itself open to corruption?

A: Any governmental system can be corrupted, but I have not seen any corruption in our committees (though allegations have been made over the years). In our geographic area (i.e., downstate), the bar disciplinary committees are careful to avoid the appearance of bias, and will readily refer cases to other jurisdictions whenever there is a hint of local politics, familial connections or some other factor that could infect the integrity of an investigation or outcome. I do not know what the practice is in this regard in the Third and Fourth departments.

Q: You have written that the lack of uniformity among the disciplinary procedures in New York’s four appellate departments “reflects adversely on the administration of justice.” How do the disparate practices undermine fairness? If you could design the attorney discipline system, what changes would you make?

A: Where to begin? In New York, the lack of uniformity is a huge concern of mine. It just seems wrong that lawyers in some parts of the state receive more “due process” than lawyers practicing elsewhere. Compare, for example, the extensive procedural rules in the First Department (22 N.Y.C.R.R. Parts 603 and 605) with the much more limited, almost “bare bones” rules in the other three departments (22 N.Y.C.R.R. §§691, 806 and 1022). So the first change would be to establish a statewide, uniform system, with one set of procedural rules for everyone, and one court as final arbiter substantively and procedurally of the laws governing the conduct of lawyers, as is the case virtually everywhere else in the United States.

Let me provide one more clear example. The committees in three of the four departments can issue non-disciplinary letters of caution, education, or warning when a lawyer engages in borderline conduct. These letters are useful tools in the arsenal of the committees, useful in remedying minor infractions without doing lasting damage to a lawyer’s reputation or record. Yet this remedy is not offered in the First Department. The result is simply that participants in the disciplinary process in the First Department are deprived of a useful remedial tool available everywhere else in the state. As I indicated earlier, this demonstrates the need for a unitary, statewide system of attorney regulation.

Second, the system is underfunded. It is overburdened with too many complaints that require prompt and effective investigations for the resources that are available. (In that regard, the Legislature should cease its diversion of a sizeable portion of our biennial registration fees for general purposes unrelated to the bar or the judiciary. To me, this is scandalous).

Next, despite the good work of Committee on Standards of Attorney Conduct, New York still has no ethics rule that adequately addresses multi-jurisdictional practice in the 21st century, and retains some rules that are antiquated, have proven difficult to enforce, are largely unnecessary, and are unpopular with a large proportion of the bar, e.g., the advertising rules. My hope is that the Administrative Board of the Courts will address these issues soon.

Q: How did you end up in legal ethics?

A: Like so many others, my career path was serendipitous. I attended college and law school in the ’60s (so that may tell you something), and after teaching in North Carolina for three years at a predominantly black college, began my law career in legal services/legal aid. I stayed in “poverty law” for the next 13 years.

After a brief stint in private practice, which at the time was unsatisfying, I went back into public service, this time as an assistant bar counsel in the Office of the Bar Counsel in Boston. This was my first experience in legal ethics, and I had no idea what I was getting into. I found I really liked several aspects of the work. Principally, it involved “consumer protection,” something I could relate to as a former poverty lawyer.

Second, I was exposed to a variety of law practices, learning about substantive legal areas to which I had never been exposed.

Third, and best of all, I had the opportunity to litigate and try cases against some of the finest trial lawyers at the bar.

That experience proved invaluable when, in 1989 I became chief counsel in the First Department, where I served for about the next 10 years. That was one of the most challenging public service positions any lawyer could hope to have. Along the way, I taught legal ethics, lectured on CLE panels, wrote articles about ethics and discipline for this newspaper and other journals, and got to know even more great lawyers and judges. Private practice, but still within the field of legal ethics, was the next logical step. My practice has turned out to be broader than attorney discipline. It involves counseling and representation of lawyers and law firms in many aspects of law practice, including, for example, risk management, fee disputes, partnership breakups, sanctions hearings, disqualification motions, bar admission and reinstatement cases and legal malpractice.

Q: Who were your mentors?

A: I had no true mentors in legal ethics. But early in my career and before I joined the bar, I had the good fortune to participate in an informal meeting with Justice Thurgood Marshall and a small group at the U.S. Supreme Court. Though I cannot presume to call him a real mentor based on that one encounter, Justice Marshall made a lasting and profound impression for two reasons: his great enthusiasm for the law as a means to achieve social justice, and the inspiration of his own courageous life, especially the period when he rode circuit all over the south in the ’40s and ’50s, trying civil rights and criminal cases. His example inspired me to find a way to make a difference, to stand up for people unable to afford a lawyer, and thus I began my career in that mind frame. I had no idea that one day my experience in public service could lead to an equally challenging and successful private practice in the very same field of legal ethics.

Q: Would you recommend to a young attorney that he or she spend time in the government before entering private practice?

A: I would highly recommend spending time in government or in some other public service position at any point in one’s career. Nearly every lawyer I know who also had that opportunity describes public service as among the best, most exciting phases of his/her legal career. Sadly, such jobs are hard to come by in today’s tight market.

Q: What opportunities in the legal ethics field do you see for younger attorneys?

A: Although there are limited opportunities in the legal ethics field, I can think of several model career paths that could work. Probably the most typical path entails service as a disciplinary staff counsel followed by private practice on the defense side. This route mirrors the legions of ex-prosecutors who become criminal defense counsel, with the notable difference that there are far fewer legal ethics lawyers in private practice.

Also, there are a growing number of academic ethicists today compared to when I entered the field, and any of them will tell aspiring scholars that legal ethics is no longer just a required course for third year law students.

Finally, there is the purely private practice model. As law firms develop and expand their offices of general counsel there are, increasingly, staff positions for lawyers who develop an interest in this field (and for some, a desire to exit the race to partnership). Steven Krane of Proskauer Rose, my good friend whose untimely death last year shocked us all, was an iconic example of someone who mastered every aspect of the law of lawyering and rose to the top rung of the bar and his law firm.