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In national role, bar counsel seeks graceful way out for impaired attorneys

By Susan McRae
Special to the Bar Journal

Murray GreenbergMurray B. Greenberg had one priority after becoming president of the National Organization of Bar Counsel (NOBC) in August: He set up a committee to help attorneys who are too old or ill to practice retire with dignity rather than face disbarment. Two months into the job, he’s now making plans to form a second committee to look into situations where an attorney has noticeable problems, but intervene before misconduct charges are filed.

Greenberg, a senior trial counsel at the State Bar, has handled discipline cases for the past 24 years. He likens the second committee’s responsibilities to helping a vision-impaired senior who wants to keep driving. The reason, he says, is they’re going to hurt people if they continue driving.

“It’s always a delicate situation,” says the 60-year-old Greenberg, “because you don’t necessarily want to say to someone, ‘You’re slipping.’ It’s like an intervention program, a close-knit support group of colleagues, friends or relatives who would come in and say, ‘You need some help.’ ”

Greenberg said he sees the organization’s two-pronged mission as protection and prevention. It safeguards the public while allowing a lawyer who’s had an otherwise unblemished record to retire from the profession with dignity. This way, they avoid ending a career in disgrace because of minor misconduct caused by age-related disabilities.

The situation is important, he says, because the poor economy has prompted many older people to postpone retirement. Although many workers remain productive well into their 70s and 80s, some experience age-related problems, such as memory loss, as early as their late 40s and 50s. The average age of attorneys in California is 48, according to a State Bar survey completed last year. In 2007, the NOBC, together with the Association of Professional Responsibility Lawyers, released results of a two-year study on problems of age-impaired lawyers. The groups came up with a list of recommendations to help attorneys transition into retirement when they could no longer function well in their jobs. But Greenberg, who participated in the study, says nothing much has been done since. As this year’s NOBC president , he decided it was time to take a fresh look at the issue.

Greenberg appointed Louisiana Deputy Disciplinary Counsel G. Fred Ours, a past president of the organization who worked on the 2007 report, to head the Committee on Permanent Retirement. Ours will report his findings at the organization’s mid-year meeting in February, he said. The second committee is still in the planning stages.

Although the organization is not a regulatory agency, its international group of members include discipline and ethics authorities from 75 state and federal jurisdictions who look to it for guidance.

Greenberg is the first Californian to head the organization in 19 years. He says the studies could carry weight with member jurisdictions in creating a model rule and best practices guidelines for a disciplinary category targeting attorneys with age-related problems. Currently, California has no such provision.

California does have one non disciplinary way to address the issue. The law allows the bar to forcibly register an attorney as inactive when the attorney’s mental or physical inability to practice law poses substantial risks to the public. Otherwise “what we have in California is resignation with charges pending or a stipulated disbarment,” Greenberg says. “There’s not a lot of wiggle room.”

Lawyers who’ve worked with Greenberg say as the organization’s new president, he’s the perfect person to take on such a task.

Murray GreenbergPaul J. Virgo, a former State Bar trial counsel now in private practice, recalls Greenberg’s work on the State Bar’s Attorney Surrogacy program, by which solo and small firm practitioners are encouraged to appoint an authorized representative to wind down and otherwise address law practice issues when the attorney can no longer do so, and there are no partners or others in the firm to help. Greenberg has also worked on programs to assist lawyers in closing a law practice upon retirement or other departure from practice. 

“As far as I’m concerned, Murray was on the cutting edge in starting that program,” Virgo said. “He’s always been involved in that way. He’s a very compassionate, hard-working guy. He cares about the individual. It’s not just a public protection issue with Murray. He’s not just out to do lawyers harm.”

State Bar Court Judge Donald Miles was also on the panel. He said Greenberg foresaw the growing problem of aging baby boomers overwhelming a system not set up to address their issues.

“People aren’t retiring as early as they used to,” Miles said. “They’re living longer. Alzheimer’s [disease] and senility are becoming more of a problem because years ago people would have retired before it became a problem. Rules are not set up to deal with it, and to deal with it before it becomes a problem.

“Something needs to be done to address this, and Murray has taken the lead.”

A Chicago native who still retains the broad vowels of a Midwest accent, Greenberg went to law school intending to work as an attorney in the entertainment field. He’d always been passionate about music and sports. Stacked in the corner of his office, he still keeps a dozen cardboard cartons filled with LPs, 800 vintage vinyl albums leftover from his music days. He’s slowly whittled that collection down from 10,000, donating the bulk to charity.

He built up his collection during his time as an undergraduate at the University of Illinois, when Greenberg was a college promotions manager for Columbia Records. Grammy Award-winning producer Clive Davis was his boss. Greenberg read Davis’ book about becoming Columbia’s general counsel several years out of law school.

The book spurred Greenberg into a career in law. He quit the music business and took a job clerking at the public defender’s office while working his way through Chicago-Kent College of Law at night. What he didn’t realize is that once he had left, it wasn’t easy to break back into the music business.

So Greenberg stayed on as a deputy public defender after passing the Illinois bar. Then one freezing winter day in 1988, he visited a friend in Los Angeles. He called his wife, Anita, then a legal secretary at Chicago’s Kirkland & Ellis, and told her it was 80 degrees. “She said, ‘We’re moving,’ ” he recalled, and they moved to California.

Greenberg took a job as investigator and paralegal for criminal defense lawyers Michael Nasatir and Richard G. Hirsch in Santa Monica while studying for the California Bar Exam. He says he thought about entering private practice, but coming from a government background, he liked job stability and a regular paycheck. When a spot opened at the State Bar, he says it seemed like the right fit.

Except for eight months in 1998-99, when Gov. Pete Wilson vetoed the State Bar dues bill, and Greenberg was one of 400 employees who were laid off, he’s worked steadily at the bar, holding various positions from investigator to prosecutor to intake attorney. When he returned from the layoff, he went back to the intake unit where 7,000 complaints awaited him. He and his staff worked through the files one by one, slowly clearing out the backlog.

Today, Greenberg proudly shows off rows of empty file cabinets. Nodding to three short stacks of complaints on a table in his office, he says his unit gets through all pending cases in a week’s time.

“I’m a firm believer” he says, “in moving stuff along in a fair way, in doing justice to the plaintiff and [providing] fairness to the attorney.”

Susan McRae is a freelance writer based in Los Angeles who has covered the California legal community for 20 years.