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People who accuse attorneys of violating the State Bar of Georgia’s standards of conduct may lose their immunity from a suit for defamation, libel or slander under a change recommended by the Bar’s board of governors. The proposal also would remove the obligation to keep complaints and proceedings against lawyers confidential. Currently, the Bar’s Rule of Professional Conduct 4-221 requires that until a disciplinary proceeding reaches the Georgia Supreme Court, its content is to be kept confidential and cannot create a cause of action. David S. Lipscomb, the vice chairman of the Bar’s disciplinary rules and procedures committee and a partner in Henderson & Lipscomb, is leading an effort to change the rule. He proposed the change and gained approval at the Bar’s mid-year meeting in January. The proposal now goes to the state supreme court. The proposal has generated controversy. Anthony B. Askew, a Kilpatrick Stockton partner and Georgia Bar board of governors member, says changing the rule may make people afraid to file complaints against attorneys. He says attorneys who are “misbehaving” are the most likely to retaliate against complainants by threatening suit against them. Askew says the current blanket immunity works well for the profession. “You do that because we are disciplining ourselves,” Askew says, and adds that self-discipline combined with the current absolute privilege rule protects the public from suits by accused attorneys. Currently, the Georgia Bar’s Rule of Professional Conduct 4-221 provides that all investigations and proceedings prior to a filing in the Georgia Supreme Court are confidential. Violators are subject to contempt rulings. The rule also provides that pleadings and communications made by participants during disciplinary proceedings are privileged and cannot create a basis for a cause of action. The proposed version would change the rule to provide that disciplinary proceedings are not privileged and would remove the possibility of a contempt ruling for confidentiality violations. His opponents, Lipscomb says, “believe the process is so important to have people come forward” and file complaints that “it’s worth it to have a few liars.” Lipscomb says he disagrees and says he doesn’t think complainants should be able to intentionally file false complaints and not be sued. The current rule, Lipscomb says, has been on the books since the 1960s. He says he might have felt differently 25 years ago, but now, he says, “clients are more quick to complain.” Jesus A. Nerio, a sole practitioner and member of the Bar’s board of governors, says he’s opposed to the proposed changes because they would add a “chilling effect” to the person who files a complaint against an attorney. With respect to the attorneys who voted for the proposal, Nerio says they “voted against their best interest.” The Bar’s disciplinary rules and procedures committee defeated Lipscomb’s originally proposed rule with an 11-1 vote. The issue then went to the Bar’s executive committee, which in December approved a different version of Lipscomb’s proposed changes. At the Bar’s mid-year meeting, the state Bar’s Board of Governors passed the proposal — plus a minor amendment — 62 to 52. That means the proposed changes will be reviewed by the Georgia Supreme Court, and that likely would happen in time for the Bar’s annual meeting in June, Lipscomb says. If the court approves the changes, the new rule would take effect next January, he adds. Lipscomb, who is also on the Bar’s executive committee and board of governors, says recent U.S. Supreme Court cases render part of Rule 4-221 unconstitutional because it restricts First Amendment free speech rights. In examining how that part of the rule should be changed to comply with the court’s decisions, Lipscomb says some members of the disciplinary rules and procedures committee felt “it was a good time to change other rules.” According to Edward E. Carriere Jr., chairman of the Bar’s disciplinary rules and procedure committee, there are two avenues for clients and others who have complaints about practicing attorneys. One is to contact the Bar’s Consumer Assistance Program (CAP). CAP tries to intervene and resolve attorney-client disputes in a nondisciplinary setting, Carriere says. He adds that all calls to CAP are kept confidential. The other option is to call the Bar’s office of general counsel. That call and any grievance filed with the office also is confidential. An officer of the Bar will decide whether the grievance has merit. In many instances, says Carriere, the officer finds that the complaint is meritless and the lawyer never knows about it. But if there is a legitimate issue in the complaint, Carriere says, the complaint is sent to the lawyer, giving him a chance to respond. Both the complaint and the response are confidential. After the lawyer responds, a notice of investigation is sent to any party who might need to be involved, says Carriere. At this point, Carriere says, the proceedings are a “paper transaction” and must remain confidential. The investigation file remains with the investigative panel of the state Bar’s disciplinary board. If the board finds there is no probable cause for discipline, Carriere says, the complaint is dismissed. If the investigative panel votes on the issue of probable cause and determines there has been a violation, then the panel files a request to the Georgia Supreme Court for a hearing from the Special Master. Under the proposed change, all transactions are still to be kept confidential but violators cannot be held in contempt of court. At that point, Carriere says, all evidentiary and motions hearings as well as all reports rendered are open to the public. Briefly … A Georgia State University College of Law graduate has promised to match every alumni contribution up to $50,000 made during the 2000-2001 fiscal year. The anonymous donor, who is a member of the law class of 1989, says he or she made this pledge in order to stimulate alumni giving to the law school’s annual fund. Donna Wilson Vales, formerly a senior associate at Jackson, Lewis, Schnitzler & Krupman, has joined Fisher & Phillips as of counsel. Vales, who has practiced at several firms in the employment litigation arena since 1987, was the sole proprietor of her own firm for four years.

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