Why is punishment not applied more freely in the professions?

Great Debates
61

A thoughtful and reasonable rephrasing of the OP.

The only point I’d disagree with here, perhaps, is what constitutes “the vast majority” you cite as “decent and competent professionals.” From my perspective, that majority is (let’s pick an arbitrary but accurate estimate) 97% of lawyers, cops, physicians, etc. Of the remaining 3%, I’d guestimate that about .05% get caught committing ethics violations, and fewer than half of those get punished in a way that affects their lives severely.

That said, and forgetting about the specific figures I just invented, there are those in this thread, I believe, who insist that I underestimate the percentage of ethical practitioners, and underestimate the percentage of violators caught and punished. These apologists for the self-regulating professions, such as Princester and Northern Piper, seem to think that there is no such problem in the professions at all, and it is being very well regulated, if it exists at all, by the professions currently. It seems to me there is a large difference of opinion here, between them and people like Jackmanii and myself as to the extent of the problem and the effectiveness of the regulations. Perhaps the strongest evidence for my side of the argument is the low regard the public has for most of the professions. If the law, for example, were regulated well according to the highest of ethical standards, would most people think of lawyers as the unethical sleazebags that most polls have told us they do? Is it reasonable that this perception is entirely due to sensational fictional TV shows and none of it is due to the ethical lapses they can witness happening in real life?
If we want to put numbers on it, I’d say

62

I’d like to dig into this for a second and skip the lawer talk. What evidence do you have of the public’s low regard of any profession aside from lawyers?

Doctors seem highly regarded to me though there are some complaints about how much money they make. Engineers don’t really seem to be thought of at all. Accountants only seem to make the public regard around tax time, maybe a little low regard since people think they help business and people cheat on their taxes.

How would your proposed system even work for a non-legal profession?

63

Sorry, I don’t have specifics, just a memory of being surprised when I read polls about various impressions and thinking “Hmmm, we don’t seem to have a lot of respect for most of these–doctors are moneygrubbing pricks, journalists are liars, politicians are gasbags, accountants are cheating weenies, teachers are lazy, and don’t get me started on lawyers.” Maybe someone with better search skills than I have can post a current poll of this question–this one gets asked all the time.

64

Doctors are second to nurses in respect in this two year old study.

Now that was before they became part of a conspiracy to inject every human on earth with a tracking device, so who knows where they are now?

65

In the UK (not sure about USA) medicine has a much better ‘weeding out’ system in the early stages. At application level and trough training may are weeded out. Therefore, (the idea is) the standard is higher to start with.

Teachers ‘leave’ the profession (ie: pushed out) regularly. Again, I only know the UK, but 1/3rd leave before the first 5 years. Monitoring is tough for teachers.

66

To follow up with this. I only became a lawyer at age 37, so I was a real person before. :slight_smile: I understand both sides of the equation. Take something rather simple like a criminal record expungement. If you are eligible, you file a petition, have a hearing in front of the judge, put on evidence how your client has reformed since getting that heroin possession charge six years ago, and ask the judge to expunge the record. It is in the judge’s sole discretion whether to grant the petition.

Now, on my side, this is a simple matter, routine. I’ve done it many times before. But to the client, this is a huge deal. They are waiting on tenterhooks. They have job applications in the works that they want it gone as soon as possible. But the judge can take as long as he wants to rule. It may be a day, it may be a year.

But the client wants to call three times a week. And I explain to them that the judge hasn’t yet ruled and when he does, the client will be the first to know. Then after a couple of months, the client gets mad at me. Why I am not doing something? What is she paying me for?

I explain that I cannot force the judge to rule. Obviously the judge has some things to consider in your petition and if I put pressure on the judge and demand that he rule, you may get what you asked for—a denial. After explaining this, the next week, the client’s mother calls the judge’s office and asks what is taking so long. I call the client back pretty upset and tell her never to do this. The client calls the next week and says that she knows a guy who is good buddies with the judge and should she have him talk to the judge. I tell her absolutely not, and am more upset. I tell her to quit calling the judge, and quit calling me unless there is a new issue that arises.

She still calls, and I have the secretary take messages and don’t return the calls because they are just checking on status updates. She posts on Facebook and complains to the state bar that scumbag lawyers like me just want to take their money and not do anything.

If in six months, the judge grants her petition, she is so, so sorry and I am the absolutely bestest!!! If the judge denies it, then we are both in cahoots; “we” were never going to give her an expungement anyways and it was just a scheme to take her money. Fucking lawyers.

The state bar sees that for what it is, and does not discipline me. Then people complain that it is just “lawyers policing other lawyers.”

It’s not like all lawyers are in a secret club where we have beers with each other every week. We want to get rid of the bad ones as well, but we can see when people are simply being unreasonable.

ETA: As far as expungements, two judges around here grant them as a matter of course. One judge actually looks at them very hard and demands a showing of some level of rehabilitation other than just not getting new charges. I tell the client that she got a bad draw by getting the latter judge. And it is nice when her mother tells the judge I told her that.

67

Obviously, more people will complain than have legit complaints. You put up with that. Part of the deal, right?

What I think people (non-lawyers, in this case) are complaining about is how many lawyers get away with murder because it’s just lawyers making that final determination: “Well, I’ve been in that boat before myself, caught with a dead client and the murder weapon in my hand, could happen to anyone, so let’s cut this poor guy a little slack here…”

You make it sound like there are just illegitimate complaints when everybody knows there are legit ones that get routinely shitcanned.

68

I get what you’re saying. I really do. I’m in a fairly unusual position, in that I’m in the middle of all this without being a lawyer. I’m the son and stepson of lawyers. And the sibling of lawyers. And the husband of a lawyer. And the son of a (retired) federal judge. And I’ve worked in IT at the mega-firms for twenty years now.

And I’ve been a client a few times, too (I believe I ranted in the Pit once about lawyers and others taking advantage of my elderly and incompetent father).

So I’ve seen this from all sides.

Yes, civilians often have unrealistic expectations, especially when it comes to the speed of the justice system (criminal or civil). And there’s nothing their lawyers can do to make it go faster. And they don’t always get that.

But on the other hand, the system does make ordinary people wait far too long for things that those people really, really need. And that system is designed and run by lawyers.

And yes, lawyers have a highly specialized skill, learned in graduate school and on the job (and let’s face it – the first few years of a lawyer’s career are an apprenticeship – they’re not actually qualified to do much of anything, despite the fact that they’ve been given a license). And so charging $500 per hour isn’t actually unreasonable, all things considered. But that’s a life-changing amount of money to so many clients.

The grinding slow pace of justice is a real concern in this country. And it is beyond the control of any individual lawyer.

Is it something that lawyers, acting collectively, could do something about? That’s a really interesting question right there.

69

I only know my experience and those that are published when lawyers are disbarred or suspended. I hate to ask for a cite but where are these cases where the lawyer does something clearly improper yet it gets swept under the rug?

I mean, it makes sense. Did an accountant handle things the right way? Who would best know? Another accountant, right? Was the wiring in that commercial building done properly? Who would know but another electrician? Likewise, was that client handled fairly and competently? Who would know but other lawyers?

You are claiming without evidence that the unethical ones are not only not punished but made it to the disciplinary committee and I simply don’t believe that without evidence.

70

A fair point (yes, I know you weren’t responding to me).

Of course, you can understand that if I actually had that kind of evidence, about a particular lawyer getting a pass in a particular case, I couldn’t post it here.

71

I support this 100%. Can I do something about it? I wouldn’t know where to start. And yes, the judges are lawyers, just like me, but that is where the similarity stops.

72

Sure. Agreed. Funny, I got some insight into the mindset of judges over the course of many conversations with my father after he was appointed to the federal bench (in the GHWB adminstration).

First, he said (facetiously) that the best thing about it was no more clients. No more timekeeping.

Second, it really changed him. He’d been a hardcore conservative before, happily voted for Barry Goldwater in '64 (although he thought Reagan was a bit of a disappointment), thought Robert Bork got screwed, so on and so on. So the GHWB administration was totally comfortable appointing him to the federal bench.

Then he became a judge. Within a year, he’d become a Bernie Sanders-style leftie. He said it was the first time he’d actually had to deal with real people in the real world, and that changed him.

And one of his pet peeves was how long it took for ordinary people to get justice, whether in criminal or civil matters.

And he did do some work to try to change that. He was on various judicial committees grappling (with varying degrees of success, and the feds can’t do much about the state systems anyway) with trying to streamline stuff.

And he would quite often take unorthodox steps in matters before him as a judge, just to make things happen fast. He was actually pretty well-known for that, in his district.

73

On the other hand, it took 12 years from the time Andrew Wakefield et al published a deeply flawed and fraudulent paper suggesting the MMR vaccine caused autism (a bogus connection Wakefield flogged at a press conference to promote the research) until Wakefield was struck off the medical register. The loss of his “license” to practice happened six years after most of Wakefield’s co-authors retracted support of the Lancet paper’s interpretation, and four years after disciplinary proceedings were initiated against him.

Seems intolerably slow to me.

74

Indeed. Take as an example Scott Peterson. Now, I’m not saying he is innocent or guilty. For the purposes of this thread, it doesn’t matter. He was convicted and sentenced to death, and as is his right, he appealed.

It took fifteen years for the California Supreme Court to rule on his initial appeal. In that it reversed his death sentence. He is also claiming that he should get a new trial because of a biased juror. Again, not saying he is right or wrong, but it is now sixteen years and counting for the justice system to determine that.

Keep in mind this isn’t a frivolous litigator filing appeal after appeal after appeal. This is his very first appeal of his conviction. It really is no justice at all if it only comes decades later. Not for Peterson, and not for his wife’s family who should be able to relax knowing that things are final.

It frustrates lawyers and clients (back to the point of the thread) and it makes clients want to lash out at someone and since the judge isn’t talking to them, the lawyer gets it, and a disciplinary complaint.

75

Throw money at it.

I know, people say you can’t solve problems by throwing money at them.

Yes, you can.

Create more judicial positions, build more court houses, and invest more in legal aid / public defenders. Encourage the creation of more law schools, so there are more lawyers.

Part of the problem with slowness in the courts is that they can get clogged. When your first trial date, with both counsel ready to go, is 8 months to a year in the future, clients are normally frustrated. But if there’s no court room and no judge available, that’s the best you get. More judges, more court staff, and more court rooms help reduce the backlog.

Another problem, depending on the jurisdiction, can be the lack of defence counsel for those who can’t afford to pay for a lawyer. If it takes a long time to get counsel, trials will take a long time.

Find ways to expand coverage for low to middle class litigants, who can’t afford a lawyer. Greater government subsidies for legal aid is one way to do it, to expand the levels at which a person can get publicly funded counsel. (Self-reps clog the system, because they constantly have to have it explained what the next step is, what they can and can’t do. And those delays create systemic delays in the system: a trial that might take a day with both sides represented by counsel might take three days or a week with a self-rep. That means the judge and court clerk can’t do as many cases.)

More lawyers. One reason it can take a long time to get to trial is that lawyers are really busy, and trial prep takes time. Increasing the supply of lawyers might help.

Invest in ADR - alternative dispute resolution. Make mediation a mandatory initial stage for all civil cases, with mediators paid by the government, just like the government pays the judges. Sometimes getting the parties to sit down together and talk, with their conversations entirely off the record, with a skilled mediator guiding the discussion, can help to either solve the problem, or reduce the scope of the problem that has to go to court.

Introduce court costs, not as an exceptional matter, but for all civil actions and for all intermediate steps in a civil action.

  • If a lawyer is constantly delaying proceedings with motions that have no hope of success, give the court the power to impose costs for that motion, payable by the lawyer’s client to the other party.

  • Costs for the overall trial can also encourage settlements, by giving the plaintiff a greater incentive to settle (on a contingency system with no costs, there is absolutley no finanicial downside for a plaintiff to start a lawsuit. That changes for them, or their lawyer, or both, if there is a risk of court costs being awarded).

  • Costs can also be used to encourage settlements. In my jurisdiction, a party can make a “without prejudice” offer for settlement before trial. It’s a formal offer, for an exact amount, filed under seal with the court and not disclosed to the judge. If the other party refuses the settlement, it goes to trial in the normal way. Then, if the other party wins at trial but is awarded less than the without prejudice offer, the court can ding them with costs. Should’a taken the deal, instead of wasting the court’s time and getting less than the deal.

The problem is that all of these solutions will cost more money. More tax money. Is the public willing to pay for it? That’s a political question. Will vary from jurisdiction to jurisdiction.

(Costs don’t cost the government anything, but they do cost the parties.)

76

I’m with you on all of this. All of it. But I don’t have the money to throw at it, and it is a losing political battle. Nobody wants to pay tax dollars for more judges and more lawyers…until they are in the system and complaining about how long it takes. I would love to know the jurisdiction where this is approved. The public hates it. We should pay for more lawyers? Too many of them sonsofbitches already. Criminals? Build more prisons and no more “country club” prisons. No weight benches. No rec time. It should be “hard” time. And start using the death penalty more. Quit “coddling” them.

So, yeah I don’t see this working.

  1. We have that here.

  2. This is more of a “loser pays” provision which was a big thing in the 90s that Newt and the boys pushed for. The Dems pushed back hard arguing that it would make it more difficult for poor plaintiffs to bring lawsuits. I’m on the fence about it.

  3. We have that here. I’m not sure how I feel about it. I paid my filing fee; I should be able to have my case heard to the end. It seems like a modified loser pays rule, which I am on the fence about.