In national role, bar
counsel seeks graceful way out for impaired attorneys
By Susan McRae
Special to the Bar Journal
Murray 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.
Paul 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.