I bet you didn’t know that there were two justice and personal accountability systems in Alaska for lawbreakers -- one for citizens and a special, secret one for us lawyers.
The first, of course, is the criminal justice system where any of us can be arrested if a law enforcement officer believes we probably committed a crime. That’s called “probable cause” and it’s a fairly low standard of proof. The next higher standard of proof is pretty much the same. If a jury in a civil case thinks that you are probably right on the law and the facts, you win. In a criminal case the prosecutor must prove “beyond a reasonable doubt” that you committed a crime. That’s the highest standard in the law and it makes sense because your freedom is at stake.
Now let’s talk about the lawyers’ disciplinary system for unethical conduct. It makes no sense at all. It’s run by the Alaska Bar Association, and its prosecutors are called “Bar Counsel.”
Why is this important? Because the bar association is the only place that citizens can go if they have a complaint about a lawyer’s unethical conduct. In fact, that organization’s stated primary purpose is to protect the integrity of the legal system and the public by policing lawyers.
Perfectly ethical lawyers lose cases every day, so the disciplinary system is not for disappointed people who lose their cases or are unhappy about results, but for citizens who have evidence that their lawyers acted unethically.
Here’s the bad news. Bar Counsel will dismiss your complaint as “not warranting investigation” unless you prove your case against the lawyer by “clear and convincing evidence,” which is the second highest standard of proof in the law. That is what’s necessary to “convict” a lawyer of unethical conduct. Remarkably, the lawyer you accused doesn’t even have to respond to your complaint.
So because such a high standard is required, a regular citizen unschooled in the law who doesn’t know much about legal proceedings and filings, the rules of professional conduct, the facts essential to show a valid complaint, or that you must prove your case before the bar association will even investigate, doesn’t have a snowball’s chance in hell.
Worse yet, this ridiculously demanding standard is a matter of policy -- not law. The standard for dismissing your case as “not warranting investigation” is not found in any statute or set of rules. The bar association just made it up. The policy is used to decline most complaints, and it leads inevitably to an evasion of the bar association’s responsibility to protect the public from unethical lawyers.
This made-up policy is directly contradicted by an actual rule that says “if after investigation it appears that there is no probable cause to believe that misconduct occurred, Bar Counsel may dismiss the grievance.” So in the bar association’s "Alice in Wonderland" world, they won’t even open an investigation unless the citizen proves their complaint by clear and convincing evidence, but they can later dismiss it if they believe there is no probable cause after they investigate. If you are confused by this preposterous contradiction, you are not alone.
And here’s another insult. Bar association disciplinary proceedings are confidential -- meaning secret -- and if you talk about your complaint you can be found in contempt of court. So, if you are wronged by a lawyer and choose to file an ethics complaint, just shut up. I know it’s tempting to blame lawyers for this abdication of responsibility by the bar association, but you shouldn’t, unless they don’t fix the system. I’ve been an Alaskan lawyer for nearly 37 years, and I didn’t know about this travesty until this summer.
Here’s the real question. Should the accountability of lawyers hinge on the ability of non-lawyers to prove a perfect case? Of course not, the standard for opening an investigation of alleged unethical conduct should be probable cause.
If you are not yet outraged by this situation, please re-read the above and email the bar association at email@example.com.
Brant McGee was born in Alaska, served as Alaska’s Public Advocate from 1984 to 2003, and now practices international human rights law.
The views expressed here are the writer's own and are not necessarily endorsed by Alaska Dispatch News, which welcomes a broad range of viewpoints. To submit a piece for consideration, e-mail commentary(at)alaskadispatch.com