A Review of the Current Status of Attorney Discipline

Introduction

Waves of judicial reform are sweeping through the judicial system. Slogans such as "judicial reform," "judicial independence," and "judicial autonomy" ring out loud and clear, prompting prosecutors to recently establish the Association for Prosecutor Reform, declaring opposition to superiors or higher-level authorities intervening in judicial investigations under the guise of prosecutorial unity. While the overall effectiveness remains to be observed over time, any initial "introspection" is ultimately a good start and deserves affirmation. But what about attorneys?

Attorneys are also part of the judicial system. Driven by long-standing dissatisfaction with the judicial environment, some attorneys stepped forward to establish the Judicial Reform Foundation to promote judicial reform. While this has achieved some results, it has primarily focused on reforming the current state of the courts and the judicial system (monitoring others), while lacking in terms of attorney autonomy and self-introspection (self-discipline).

It is understood that quite a few attorneys have already realized that the results of attorney autonomy and self-introspection have been extremely limited. However, constrained by various factors, concrete reform actions have yet to be taken. The author attempts to examine certain issues through the current status of attorney discipline, hoping that like-minded colleagues and the Judicial Reform Foundation can jointly promote reform.

Review of the Current Status

The purpose of attorney discipline is to safeguard the dignity of attorneys and maintain attorney discipline. Aside from striving for public recognition through professional competence and service quality, maintaining discipline is also one of the crucial methods. However, regarding the specific effectiveness of maintaining attorney discipline, according to the October 1996 issue of Wealth Magazine, the Taipei Bar Association received more than 40 complaint cases in recent years, yet to date not a single case has been formally referred to the Disciplinary Commission of the Judicial Yuan. Attorneys who were disbarred had all been involved in disciplinary misconduct and were convicted following direct complaints by parties concerned to judicial authorities. Since October 1996, although there have been a few cases where disciplinary matters were referred following complaints lodged by parties with the Taipei Bar Association, they remain very few in number. Therefore, poor effectiveness is an indisputable fact. Reviewing the causes, the following factors are closely related:

1. Interpersonal Ties and Constraints
   Attorneys are members of a liberal profession, existing in a state of more or less peer competition. Furthermore, with a limited number of practitioners, they more or less know one another or even have personal connections. Expecting certain attorneys to denounce or discipline the illegal or improper conduct of independent peers requires not just morality, but courage! Yet, past data shows that while morality may be present, courage remains lacking. For example, regarding issues of judicial integrity, Attorney Ch'en Shun-kuei used the following metaphor in an article titled "Judicial Extramarital Affairs Once Again" (Newsletter for Attorneys, Issue 179): Judges and prosecutors can be said to be wholesalers of justice, while attorneys are the retailers, collectively engaging in direct sales of justice. He further stated: "While these individuals are principal offenders, aren't the judicial or attorney colleagues who knew about it yet remained silent, condoning their wrongdoing, also accomplices?"
   
2. Poor Quality Control
   Unlike physicians who have clear professional specializations, attorneys in Taiwan—particularly those in small and medium-sized firms or sole practitioners—frequently accept any case regardless of their expertise in order to meet "sales quotas." When it comes to court hearings, their legal arguments, such as claims for relief and grounds for requests, are vague and muddled. They merely weep, wail, or bow profusely in court to put on a show, dragging the dignity of attorneys through the mud. The performance of some senior partners in large firms is not much better; usually busy with social engagements, when a client specifically requests them to appear in court, they lack the time to thoroughly review the legal briefs or legal points prepared in advance by junior associates. Once in court, legal facts are either mismatched or entirely unknown. Worse still, even legal effects are forgotten amidst clinking glasses, leaving them clueless on what to argue. All these bitter fruits are borne by clients who are unfamiliar with the law. Is this fair? Is there a solution? Can such attorneys be expected to engage in self-introspection and step forward to uphold attorney discipline or dignity?
   

Comparing the aforementioned causes with the Regulations on Attorney Discipline in Taiwan, regardless of whether it is the Attorney Disciplinary Commission or the Review Commission, the structural composition of their members includes non-governmental attorneys and scholars exceeding the number of official members. Formally speaking, the degree of autonomy is in no way inferior to that of Europe and the United States. Yet, the self-disciplinary effect among attorneys remains poor, which is evidently caused by the cultural factor of "smoothing things over."

Outlook

In response to the current situation described above, the author offers the following humble opinions, suggesting that local bar associations or the Taiwan Bar Association consider them:

1. Attempting to establish an attorney evaluation system: Before a professional attorney system is established and while the general public lacks clear information regarding attorneys, attempting to establish an attorney evaluation system to warn lazy attorneys or directly impose discipline in order to protect the rights of clients while safeguarding the overall image of the legal profession is certainly worth a try!
2. The ethics and discipline investigation committees of local bar associations should instead be elected and vested with independent authority to conduct investigations into attorney ethics and discipline, free from the interference of the bar associations.

Attorneys must not only engage in self-reflection, but also muster the courage. While striving for autonomy and promoting judicial reform, they must cast aside personal connections and strengthen self-discipline. Only then will the judicial system have a chance at revitalization!