Wednesday • April 13, 2005
Kentucky disciplinary data reveals substantial growth in bar complaints
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Last week I reported that the ABA Standing Committee on Professional Discipline had published the most recent edition of its annual Survey on Lawyer Discipline, which provides statistics about disciplinary activity based on survey responses submitted by state disciplinary agencies. The statistics are set forth in eight Excel spreadsheets which can be viewed and downloaded at the Survey on Lawyer Discipline page of the ABA Center for Professional Responsibility web site.
I have now reviewed the Kentucky disciplinary statistics that are included in the ABA report. The Office of Bar Counsel at the Kentucky Bar Association apparently provided those statistics to the ABA in 2004 as final figures for KBA fiscal year 2002-03.
The most interesting aspect of the Kentucky data is how the numbers changed over the five-year period from 1998 to 2003. The 1998 numbers are also available on the Survey on Lawyer Discipline page; in fact, they are the earliest figures included in the ABA survey.
Here are a few things that jump out from a comparison of the 1998 and 2003 data:
- Between 1998 and 2003, the membership of the Kentucky bar increased 14%, from 12,517 to 14,294.
- During the same period of time, however, the number of bar complaints filed each year increased 70%, from 562 new complaints in 1998 to 953 new complaints in 2003.
- The number of complaints deemed worthy of formal charges increased by 16%, from 54 in 1998 to 63 in 2003. That increase is consistent with the increase in the lawyer population (14%), but substantially less than one might expect from the increase in bar complaints (70%). Thus, the statistics indicate that there was a substantial increase in the the number of bar complaints which required investigation and analysis by the Office of Bar Counsel but did not warrant disciplinary prosecution.
The significant increase in the number of bar complaints shows why the staff of the Office of Bar Counsel was increased in 2004. From mid-1998 to mid-2003, the number of attorneys in the Office remained constant at five while the number of bar complaints increased steadily each year. As a result, the average caseload of each OBC lawyer rose to 228 cases in 2003. That placed Kentucky's disciplinary attorneys among the top ten disciplinary agencies in the nation in terms of the size of their caseloads.
The ABA report also indicates that the KBA allocated $670,288 to the operation of the disciplinary system in KBA fiscal year 2003. That works out to $47 per member of the Kentucky bar, and $10,640 per charge-worthy complaint. During that same year, the investigation and prosecution of disciplinary cases resulted in 80 final disciplinary orders, as follows:
- 42 private admonitions and private reprimands; and
- 38 public disciplinary orders, with sanctions ranging from suspension for 30 days to permanent disbarment.
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David Giacalone visited this page on Wednesday, April 13, 2005, and wrote:
Ben, I am not sure that comparing percentages from the years at either end of a 5-year span is particularly enlightening here. We'd need to know if 1998 was a representative year and how 2003 compares with the in-between years. Even using only those two years, and your premises, the percentage of complaints "deemed worthy of formal charges" in 2003 would have equaled the percentage of 1998, if a mere 32 more of the complaints had been categorized as worthy of investigation. That is only 3% of the 953 complaints received in 2003. Is it statistically significant that 6.9% of complaints went to investgiation in 2003 and 9.6% in 1998?
More fundamental, perhaps, is that the "deeming" process is a very subjective one -- and is performed by, or on behalf of, the same overloaded people who will have to do the investigating. The 2003 number could be "low" because there were simply no resources available for full-blown investigation. Also, is it possible that the missing 32 "unworthy" complaints were actually settled prior to reaching the investigation stage, thanks to the Consumer Assistance Program?
Looking at the Kentucky bar discipline system, I would not personally stress that clients are making "non-meritorious complaints." Instead, I'd wonder what Kentucky has done to improve its system, since it came in 48th in the HALT Report Card of bar discipline systems in 2002. For example, are there still no non-lawyers on the discipline panels?
Ben Cowgill visited this page on Wednesday, April 13, 2005, and wrote:
I always appreciate the comments of my friend and fellow blogger David Giacalone, but I think it would be appropriate for me to clarify a couple of factual matters raised by his comments on this post.
First, the 1998 and 2003 numbers do, in fact, reflect a trend that began before 1998 and continued after 2003. The existence of that trend has been discussed elsewhere, including the Kentucky Bench & Bar magazine. I compared the 1998 and 2003 numbers in order to illustrate the trend which unquestionably occurred during that period.
Second, it appears that David has confused the question of whether a complaint is investigated with the question of whether a charge of misconduct is issued following the investigation. That's understandable because every state's disciplinary process is different. In Kentucky, the Inquiry Commission decides whether to issue a charge of professional misconduct after the bar complaint is investigated by the Office of Bar Counsel. The ABA data shows that, during 2003, the Office of Bar Counsel received 953 new bar complaints but investigated and processed a total of 1,551 bar complaints, new and old. Thus it is completely inaccurate to suggest that only 6.9% of bar complaints "went to investigation" during the year.
Finally, Kentucky has included non-lawyers on its disciplinary panels since 1998. The HALT report mentioned in David's post was factually incorrect in that respect and in others as well.
supremacyclaus visited this page on Wednesday, April 13, 2005, and wrote:
In this increasing set of complaints, was a single one for an infraction against an adverse third parties?
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