Name: David D. Curtino
Position: Chief disciplinary counsel for the state Supreme Court, in charge of handling complaints against Rhode Island lawyers. The disciplinary counsel’s office works with the 12-member Disciplinary Board to mete out sanctions to lawyers who violate the rules of conduct set forth by the state Supreme Court.
Backround: Hired by state Disciplinary Counsel office as a prosecutor in 1991; assistant city solicitor, city of Providence, 1988-1991; private law practice, 1985 to 1988; state Attorney General’s Office, 1978 to 1985, named special assistant to the Attorney General in the criminal division, in 1984.
Education: University of Rhode Island, political science, 1979; Suffolk University Law School Boston, 1984.
Family: Married, three children
Residence: Providence
Age: 41
PBN: How do the state Disciplinary Counsel and Board work together?
CURTIN: Let me explain the difference between the two. I’m the chief disciplinary counsel, a full-time employee of the Supreme Court. The office of the disciplinary counsel receives complaints alleging attorney misconduct and investigates those complaints. However, the court has a separate entity called the disciplinary board, and it’s the disciplinary board that actually views the results of our investigation and then makes a determination as far as what action, if any, to take against an attorney based on the results of that investigation. The board is a volunteer board of 12 individuals, eight of whom are attorneys, and four of whom are chosen from the general public. They’re the peer review, so to speak. They’re the check and balance on the office of disciplinary counsel.
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How do you screen complaints?
The screening process is one of the functions of the disciplinary board. A number of years ago we broke the board up into panels of three. We have a panel of three meet each month in what we call a screening panel. The screening panel reviews the actual results of our (the office of disciplinary counsel) investigation, and that screening panel makes the determination of whether or not that complaint should be dismissed, some low-level form of discipline should be imposed for minor misconduct, or whether some complaint warrants a formal full-blown disciplinary hearing. If they conclude that, then the hearing would be held before a different three-member panel of the board. We call that a hearing panel. That acts essentially as a trial.
Like a Superior Court proceeding?
Exactly. The only difference is instead of jurors you have a panel of three members of the disciplinary board, and on occasion we can also use, when necessary, a retired judge to act as the trial judge. For example, there may be instances where a number of board members have to be recused for various reasons, and in those instances we use a retired judge, and we do that three or four times a year.
How many complaints do you receive in a year?
It’s easy to break it down this way. I would estimate that we probably have 2,000 to 2,500 people who contact our office by phone. Out of those we mail out approximately 1,200 to 1,300 complaint forms. What we’ll do is, we’ll speak to the person who called up. More often than not they’re looking for information or direction rather than filing an actual complaint. Those who indicate something that seems to warrant some review by our office, we mail out a complaint form. As I indicated we probably mail out 1,200 to 1,300 of those a year, out of which maybe 600 come back, and out of those 600, we have close to 200 what I call formal investigations, the ones that actually have to go before the disciplinary board.
What is an example of a violation that would warrant a disciplinary board hearing?
My standard of review is anything with facts, if true, would be a (Supreme Court) rule violation. The most common complaint falls into the category of neglect. A client will write in alleging that their attorney has seriously neglected their legal matter. Usually that’s associated with other complaints as well, lack of communication is probably the most common complaint associated with neglect. Those we’ll investigate to determine whether or not the attorney is doing what they were supposed to do. You can run the gamut of, ‘My attorney’s not returning my phone calls,’ to other investigations where we’ve uncovered thefts of literally hundreds of thousands of dollars. Naturally when an attorney has stolen large amounts of money, that’s what gets everybody’s attention. Fortunately that doesn’t happen very often. For example, we recently suspended an attorney (in which) over $163,000 (that) remained unaccounted for. And if we have anything that involves criminal type of conduct, not only will we do an investigation, we’ll also refer the matter to the appropriate law-enforcement agency for criminal prosecution. There are several attorneys now who are down at the Adult Correctional Institution.
What is the range of penalties the board can impose?
Let me give you the whole range of sanctions available. One is what we call a Letter of Admonition which is issued by a screening panel, which is a finding by the board that the attorney has engaged in minor misconduct. It serves as warning on the attorney’s record, and it’s something that can be used against them if they get into future trouble. For example you can only get one admonition for the same thing. The second level of discipline, which is a more formalized process, is what it is called a Letter of Reprimand, and that’s issued by the full board. It’s still private, (as with the Letter of Admonition) but it carries a lot more weight. The third level of discipline, which can be imposed after a hearing, is what is called a public censure, which is a public order of the Supreme Court setting forth the fact that an attorney has engaged in misconduct. For more serious misconduct you can have a suspension, and the period of time can vary depending on the seriousness of the misconduct. The most serious sanction that can be imposed by the court is disbarrment, where an attorney loses their license.
Forever?
Disbarrment is for a minimum of five years. After five the attorney can apply for reinstatement. It’s not automatic. Very few apply, and of those who apply not all make it.
If you are looking to hire an attorney, can you find out if he or she has been disciplined in any way?
We can only disclose that the attorney’s been subject to public discipline. During the investigation stage complaints are confidential. If the screening panel of the board determines the attorney has engaged in conduct that warrants a public hearing, that’s what we call a probable cause finding, that’s the point the proceeding becomes public. If you call our office we can tell you if the attorney’s ever been publicly disciplined, but we can’t tell you about anything that’s presently under investigation or when the discipline has been a private form of discipline. But obviously we only impose private discipline for minor misconduct.
Some people have made a suggestion: why don’t you make the process open from Day One? Why shouldn’t someone be able to call up and find out if a complaint’s ever been filed? And we try to balance an attorney’s reputation versus the public’s right to know, because you can have complaints that are totally unfounded.
The other thing we do is, we give immunity for people who file complaints. And any person who files a complaint in good faith is immune from being sued for filing a complaint.
Has the number of complaints filed been going up or down?
It’s actually been decreasing over the last few years, and that’s a trend that’s occurring nationally, I think. There are a number of reasons for that. I think partly, the number of lawyers who have been disciplined over the last few years has served as a wake-up call, it has a deterrent effect. When people see that another lawyer has not only been disbarred but has gone to jail for taking money, obviously that’s a very serious deterrent. The other reason why (is) we do a lot of continuing legal education now. Mandatory continuing legal education went into effect (in Rhode Island) about five years ago now. And as a requirement of 10 continuing legal education credits a year, two of them have to be in the area of ethics. I personally probably give 30 to 40 speeches a year to attorneys. When I go out and talk to attorneys, and I speak to literally thousands a year, is the things you can do in your practice to avoid disciplinary complaints.
I find the key, quite frankly, is client relations. Lawyers don’t learn client relations in law school. The same things that apply to any business, keeping your customers happy, apply to the law practice as well. Return your phone calls. Keep your clients informed. Copy them on everything.
A number or years ago, Rhode Island raised the bar for new lawyers, making it tougher for new lawyers to gain the right to practice in Rhode Island. Has this led to better lawyers in the state?
It’s become more difficult to pass the bar exam. The pass rate used to be in the 80-85 percent range, and now it’s somewhere in 50-55 percent range. But I think that’s going on all across the country. Let’s face it: The availability of lawyers right now seems to outstrip the demand. I don’t know if you can (say it has made lawyers better). How somebody does on a test is really no indication of how they’re going to be as an actual practicing attorney. Law schools don’t teach how to do a trial or how to actually draw up a will. Law schools teach you how to think like a lawyer, but whether someone graduated from one of the top law schools or one of the bottom law schools is really no indication of how they’re going to be as an actual attorney. I know people who graduated from law schools that would never be considered in the top tier of law schools who are excellent, excellent trial attorneys.
From what I understand, legal advertising is highly regulated. What restrictions are placed on ads for legal services?
The basic restriction is that advertising cannot be false, deceptive, or misleading. Lawyers are required to send a copy of any advertising to this office, they don’t need prior approval, but they do have to send it here so we can monitor the advertising to make sure that it’s not false, deceptive or misleading.
(If) you want to start an argument among lawyers, start talking about lawyer advertising. There’s a certain segment of the profession that is just absolutely dead set against lawyer advertising. They feel it’s demeaning to the profession, that it causes the public to have a lower opinion of attorneys. There are others who feel very strongly that, first of all we have a First Amendment right to advertise, and the public is better served by having more information rather than less. There’s been a number of U.S. Supreme Court opinions (concerning lawyer advertising). And if you look at the Supreme Court opinions the judges themselves seem to be equally divided on lawyer advertising.
I think the lawyer advertising we’ve had here in Rhode Island has been fairly tame compared to some of the ads I’ve seen in other states. Lawyers realize that you’re not going to attract potential clients with very undignified advertising. If you see an ad that makes you start laughing at the lawyer who’s running the ad, you’re not likely to hire him. So, lawyers have a built-in reason to keep their advertising within limits. I’m not opposed to lawyer advertising. I think the public is better served by seeing some advertising and knowing what type of law a lawyer practices rather than picking up a phone book and throwing a dart and whatever name that it lands on is the one you choose.
But even lawyers that advertise will tell you, most of their business comes not from the advertising, but from return customers, referrals. What I tell the young lawyers today (is): The best way to build a successful practice is to take care of your present clients.
