Crime & Federalism

Did the Connecticut Supreme Court recently hold ajar a door that might permit lawyers who win grievances filed against them to sue losing grievants? I certainly hope so. There is no reason why the bar needs to bend and spread before the altar of rage.

A tantalizing footnote in Rioux v. Barry suggests that the Supreme Court is prepared to reconsider the absolute immunity grievants now enjoy. There simply is no reason why a legal system premised on holding people accountable for their actions grants blanket immunity to those who take aim at a lawyer's license.

I am aware of the argument that claims for vexatious litigation arising from failed grievances might chill people from filing claims against lawyers. That could undermine confidence in the legal profession.Perhaps. But last I checked, lawyers ranked near the bottom of those in whom the public places its trust. Absolute immunity hasn't improved our image.

The vast majority of what we do as lawyers, at least insofar as litigation is concerned, is sort out the consequences of other people's mental health issues. We are singularly unprepared for our role as gladiator-therapists. It is small wonder that many litigants turn on their lawyers. Litigation is a zero-sum game. There will always be unhappy litigants.

Below are several reforms to the grievance process that will assure that lawyers are policed and that grievants don't abuse the process of filing cost-free actions against others:

• The process of filing a grievance should not be free. There should be a flat fee that can be waived on an affidavit of indigency. I am not suggesting a prohibitive fee. We make plaintiffs post a $500 bond in the federal courts. Why not do likewise for complaints to the Statewide Grievance Committee?

The presence of a bond would give a grievant a financial stake in the process. Rather than simply spouting off steam, a grievant would be required to conduct a minimal cost-benefit analysis about the value of their time. The way things now stand, many grievants file meritless claims that merely cost their former lawyers time and expense to answer.

• Second, when a grievant loses a claim, the lawyer ought to be permitted to move for a finding that the grievance was frivolous. A claim in which probable cause was found by a reviewing committee should not be granted such a finding. But when clients grieve their lawyers merely because they are angry about the raw deal life has dealt them, there is no reason why such a finding ought not to enter.

• If a claim is found frivolous, give the lawyer a choice: He can either move to have the grievant's bond remitted to him, or he can elect to file a vexatious litigation claim. No lawyer should be able to do both. Indigent clients relieved of the requirement to file bond would be exempt from suit, unless the lawyer proved in the course of the underlying proceeding that the grievant lied about his or her assets.

The vast majority of grievances are dismissed because they lack merit. Yet each grievance must be answered on pain of further disciplinary proceedings. We submit to all this without even so much the power to request an independent medical examination of the grievant when there is reason to believe they are driven by sociopathy.

Public confidence in the profession will not be undermined by requiring that those filing grievances be accountable for their acts. With sensible reform, we can have a system that works. As things now stand, lawyers are sitting ducks without means to recoup lost time and expense. The result is higher legal fees for all, and a decision by most lawyers to avoid clients who look like too much trouble. •

Reprinted with permission of The Connecticut Law Tribune.