The Need for Transparency

When there is a culture of secrecy within a closed group, information generated in and by those individuals can be kept within the confines of the group. This behavior may lead to public harm if a closed group keeps secret information that negatively affects other individuals who are not group members. When a public harm is a possibility, the group must install transparency so as to prevent that harm. While complete transparency might be extremely difficult, there does need to be some concession to candor and accountability. Lawyers, like many other professional groups, are commonly thought of as a closed group. We, like those in other groups, must be vigilant to maintain some transparency. In doing so, we protect and uphold the integrity of our profession while preventing harm to our clients and other citizens. This need for transparency is best illustrated through examples.

An undeniably important example is the recent conviction of Jerry Sandusky on 45 of 48 sexual abuse charges.

The acts took place over many years – an incredible span of time in which many individuals protected Sandusky, a looming figure in the world of college football. Instead of helping the young victims of Sandusky’s abusive actions, those who witnessed or suspected this behavior chose to look away. Undeniably, many young boys suffered unimaginably from the abuse and testified to that effect. If the abuse suspicions had been reported to the proper authorities when they first were known within the closed group of the Penn State football department, some abuse would surely have been prevented.  Former FBI Director Louis Freeh conducted an investigation and issued a report that was referred to in a Boston Herald article entitled “Report: Joe Paterno, Penn State officials staged 14 year cover-up.”

Another example of a traditionally closed group is police officers. The 2004 shooting and investigation of the killing of Michael Bell is a somber story that illustrates the harm that may result from a lack of transparency. Kenosha police shot 21-year-old, unarmed Bell, in his driveway. After the Kenosha police investigated the shooting in which their own officers were involved, the district attorney declined to press charges against any of the officers involved. Bell’s family filed and prevailed in a federal lawsuit that settled for $1.75 million, and they continue to fight for changing the police department review process to include more transparency and greater accountability.

Review processes that present an alternative to the traditional internal investigation system employed by the Kenosha Police Department may be employed in more communities to afford more transparency. Bell’s father, Michael M. Bell, a retired United States Air Force pilot, puts forth a proposition that a “Chief Shield Review Board” should be installed in communities. This board, which he describes here, is an independent group composed of a few members of active or retired law enforcement who are appointed by an Attorney General. The members of this group would review firearms discharges that result in death or serious injury.

Critics of our profession complain that attorneys are investigated in secret and that lawyer regulators do not inform the public until charges have been filed.  The state bar won’t even tell the public a lawyer is in prison for defrauding clients unless a formal complaint has been filed.  Lawyers can steal from clients and be investigated for years and go on to steal from more clients while an investigation is being conducted and the Office of Lawyer Regulation (OLR) won’t warn the public.

More distressing is the growing outcry over the lawyer disciplinary process in Wisconsin, which has been discussed in the media due to its confidential investigation of grievances. See “State Examines Lawyer Conduct in Secret.” OLR grievances become public only when OLR files a complaint with the Supreme CourtAlso distressing is the case of former Calumet County District Attorney Kenneth Kratz.  OLR found nothing unethical about sexting complaints against him, but completely changed its mind after a public outcry.  Mob rule?

An example of how this should be done is the Consumer Financial Protection Bureau (CFPB). Unlike some lawyer regulatory offices, CFPB lets the complaining party see the response of the entity complained about.

I don’t agree that we should go this far, but an organization called HALT wants every complaint made to OLR against an attorney, whether meritorious or not, to be made public.  I do believe there are circumstances in which the public is entitled to know of proceedings against a lawyer even before the filing of a formal complaint. When a lawyer is in prison for defrauding clients, shouldn’t the public know about this even when OLR is slow on the draw about filing a complaint against him? Shouldn’t the same be true when numerous clients have complained about a lawyer stealing from estates or trust accounts?

Attorney Michael F. Hupy is a Certified Civil Trial Specialist and Marquette University graduate. He focuses on injury law at his firm, Hupy and Abraham, S.C., and supports many safety programs, including the Hupy and Abraham “Watch for Motorcycles” Awareness Program and other community organizations. In 2011, the firm donated over $150,000 to more than 100 local organizations.

This Post Has 2 Comments

  1. Gary Werkheiser

    Perhaps you should not refer to the Sandusky situation and Penn State without knowing the facts. Only one person witnessed anything, and that was Mike McQueary, whose varying statements call into question his testimony.

    And the Freeh Report should not be relied upon for much of anything. Please read the review of the Freeh Report found here. As attorneys, you might find the lack of evidence appalling.

    Closed groups should strive for transparency. If you are looking for a good example of the lack of transparency, look at the actions of the Penn State Board of Trustees since the Sandusky Grand Jury presentment last November. Now there is a closed group that needs more transparency.

  2. Ray Blehar

    I suggest you take the Freeh Report with a grain of salt. It has no legal or evidentiary value, as I point out in this blogpost. Mr. Freeh ignored the Pennsylvania Child Protective Services Laws that state child abuse investigations must be kept confidential. The e-mail evidence in the Freeh Report does not contain a single word about child abuse, nor is there any direct evidence that Joe Paterno was ever informed of the 1998 investigation. Furthermore, unfounded child abuse allegations – as was the case in 1998 – could not be communicated to the Penn State BOT, in contravention to Louis Freeh’s assertion that PSU officials had a responsibility to report to the BOT.

    I suggest that the Marquette Law School reconsider its assertion about PSU officials.

    Despite considerable evidence within the Freeh Report and other evidence on the public record that Freeh did not include, it is more reasonable to conclude that the PA Department of Public Welfare failed to conduct a thorough investigation of the 1998 incident, resulting in the abuse of up to eight children in the immediate timeframe of that investigation. Please feel free to contact me for details.

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