Lawyers regulating lawyers is tantamount to the "fox guarding the hen house," according to the state's head of business regulation, who says the legal profession should re-examine its process of disciplining attorneys.
Department of Commerce Director David L. Buhler voiced his assessment at a recent meeting of the Utah State Bar's task force on managing and regulating the practice of law. The task force is looking at the profession's disciplinary process.Although law is the only major profession not regulated by the state, Buhler said he isn't bucking to add attorneys to the list. But he admonished the task force to consider the public perception that the job isn't getting done.
"I've heard the question again and again. . . . if licensing by the Department of Commerce is required for CPAs, architects, physicians, dentists, marriage and family counselors, social workers, real estate agents, stock brokers and numerous other professions, why not attorneys?
"Or, put another way, why doesn't the state accept as adequate regulation by the Utah Association of Realtors over real estate brokers, the Utah Medical Association over physicians and the Associated General Contractors over contractors?" Buhler asked.
He cited a public opinion poll taken for the department that ranked attorneys fourth among professions that people believe should definitely be licensed.
The legal profession is unique when it comes to regulation. The state constitution says the Supreme Court governs the practice of law. And Buhler recognizes the constitutional problems of the executive branch of government (Department of Commerce) regulating the judicial branch.
But he said the question isn't so much who regulates lawyers as much as how it's done.
Bar counsel Stephen Trost, whose office handles complaints, takes exception to Buhler implying the bar is easy on its members.
"We are harsher on attorneys than if it was done by an outside agency. If you look at the numbers, we investigate far more and discipline more than any other profession."
He explained that the case load causes delays and the perception that nothing is being done or proceedings are kept secret.
"We have too few folks doing too many cases. That's where the system buckles. We have long delays from complaint to resolution," Trost said.
The bar received 2,000 complaints last year. After screening the informal complaints, 641 cases were formally filed. The number of cases represents about 20 percent of the bar membership, compared with about 1 percent of professionals licensed by the state having complaints formally filed against them.
Trost said whether a case is private or public depends on the type of offense and whether it harmed a client. For example, a complaint about an attorney not communicating with a client would be handled privately unless the non-communication caused the client to miss a filing deadline or caused financial loss.
Of the 641 formal cases last year, 489 were handled privately and 152 cases were set for public disciplinary hearings.
When handled privately, Trost said, the process becomes more instructional, designed more to help attorneys change their ways rather than punish.
But when it goes public, it gets more serious because the attorney's license, livelihood and reputation are on the line. Penalties range from reprimand or probation to suspension or disbarment.
"It's a highly contested and adversarial proceeding once it's in the public arena," Trost said, noting proceedings are public and final orders are public record through the Supreme Court.
Despite his faith in the system, Trost said it could always use refining. In addition to the task force's examination of disciplinary procedures, Trost sits on a committee appointed by the Supreme Court to do the same thing. In about a year it will publish its findings for comment by the bar members.
The top five
Physicians 98 percent
Dentists 97 percent
Pharmacists 93 percent
Attorneys 92 percent
Chiropractors 82 percent
Results of a Dan Jones & Associates poll taken 6/89 for the state Department of Commerce.