We depend on agencies like the North Carolina State Bar to protect us. Like it or not, the law plays an increasingly important role in every part of our lives—when we're born, get sick, do business, get married (and divorced), buy property, are ready to die—and we need lawyers to defend and represent us more than ever. With that need (and the money it takes), it's even more important for self-regulating professions like the law to take that responsibility seriously.
But as Jeff Stern shows in this week's cover story on concerns the N.C. Real Estate Commission reported to the Bar 10 years ago about prominent Chapel Hill attorney John G. McCormick, who disappeared with more than $1 million of his clients' money, the Bar too often lets its members slide. Though it is statutorily responsible for policing the legal profession in the belief that self-enforcement is preferable to potential government abuses, it is too often a club of cronies that seems more interested in protecting its own. The conflict is laid out in the Bar's own stated purposes: among them are "to uphold and elevate the standards of honor, integrity and courtesy in the legal profession" and also "to promote a spirit of cordiality and unity among the members of the Bar."
Nowhere has the Bar's timidity been more apparent than capital cases in which prosecutors withheld exculpatory evidence. In the well-known case of Alan Gell, prosecutors David Hoke and Debra Graves withheld a tape recording of their star witness saying she had to "make up a story" to implicate Gell. When his conviction was overturned, all Hoke and Graves received from the Bar was a written reprimand.
To Brad Bannon, a defense lawyer for Gell (and more recently for one of the accused Duke lacrosse players), the Gell debacle was testament to "how bad this whole system can be, from beginning to end, especially for indigent defendants who are wronged by powerful people." Bannon told Stern he felt "frustration at the failure of the State Bar to really do anything about it."
Though the Bar is now acting tough in the high-profile case of Durham D.A. Mike Nifong's mishandling of the lacrosse prosecution, Nifong's actions were likely encouraged by an environment in which prosecutorial misconduct is barely punished.
Part of the problem is the Bar's penchant for confidentiality. Even when the Bar does find fault, it can issue warnings for minor rules breaches that are kept secret. Only reprimands and worse are made public—when they're used.
The Bar says it fears what would happen if complaints became public and lawyers (and clients) started using them to battle each other. But a system of secrecy and self-protection is no better. Just ask some of John McCormick's former clients.