AMC News.
From Albany, this is the Legislative Gazette, a weekly half hour review of New York State
government and politics.
Your host is political scientist and syndicated columnist Dr. Alan Shartock of the State University.
In this edition of the Legislative Gazette, we'll explore the role lawyers play in the
Legislative game as we hear from the State Senator William T. Cadillac Smith.
The legal profession finds itself entwined in one of the more complex issues still facing
the legislature this session.
What to do about soaring medical malpractice insurance premiums?
Who growl the updates of that story?
The battle between the doctors and the lawyers continued through the week with several attempts
being made at resolving the differences of opinion as to how to curb skyrocketing malpractice
premiums.
The Senate introduced a bill which included a $250,000 cap on awards for pain and suffering.
A compromise bill, sponsored by the Assembly and backed by Governor Cuomo, does not include
that cap.
Members like James Stryker and Albany Area Orthopedic Surgeon say the cap is essential.
A cap on pain and suffering.
The Commissioner of Health just told us that out of the award in the last year, over 50%
in excess of 50% of the amount of money that was awarded was awarded for this vacuous
term, pain and suffering.
In other words, it's a term that, you know, it transmuting a subjective complaint into
a monetary award.
But Justin Vigdor, the President of the New York Bar Association, says the cap is not
the answer and is unfair.
Well, we have had the position that that is not fair to what people who have been in
shape and that maybe permanently, you know, arrives to ruin by that type of malpractice.
Now, of course, we don't see any fairness in saying that a person who is rendered in
the vegetable state by a medical act should be kept while someone who's rendered in that
state by being hit by a tract of trailer should not be kept.
In the ongoing debate, which pits doctors against lawyers to a certain degree, Dr. Stryker
says lawyers should shoulder some of the blame.
However, Bar Association President Vigdor defends the members of his profession.
We have in our association 45,000 lawyers, but I would say that the overwhelming majority,
them probably never saw a medical malpractice case.
They include real estate lawyers, corporate lawyers and every other kind of lawyer.
And as far as those who do deal with malpractice, we've got lawyers who represent plaintiffs,
but we've also got lawyers who represent hospitals and doctors.
So we want to see a balanced solution.
We don't want to see the court system discerlated to get it a problem and throw the baby out
with the bathroom.
At week's end, Syne's point toward a vote next week on the assembly plan, the one endorsed
by Governor Cuomo, the one that does not include the cap on pain and suffering.
Whether the Senate will go along with it and drop the cap remains to be seen.
Some sources have indicated that Senate Majority Leader Warren Anderson has pledged privately
to approve passage.
About a spokesman for Anderson says no deal has been made.
Meanwhile, another round of premium increases is due to take effect on the first of July,
and the protest by doctors has been widening.
But even if the legislation passes, which it almost certainly will, the problem will continue.
A spokesman for Assembly Speaker Stanley Fink says a study group is looking into major
reform of malpractice, while Fink would prefer to wait to see what that group comes up with.
The reportedly realizes the nature of the crisis and now will go along with legislative
action, but only if it does not include the cap on pain and suffering.
This is Bill Gralty in Albany.
There was further evidence this week that the family of New York is this country's largest
mutual admiration society.
Here is Dr. Lee Marringoff of the Marist College Institute for Public Opinion.
This past week, the Marist College Institute for Public Opinion released results of
a statewide poll on two issues.
Governor Mario Cuomo's performance in office and weather voters in New York state want
the legal drinking age raised from 19 to 21.
The results of the survey were reported during the week on this radio station.
Basically, Governor Cuomo is enjoying his highest level of popularity since entering office.
Close to 70% of state voters believe that he is doing either a excellent or a good job.
And three out of four want him to run for re-election as governor in 1986.
Regarding the drinking age, 75% of New York state voters approve of raising the drinking
age from 19 to 21.
The issue did not make it through the legislature last year, despite the overwhelming
support of residents around the state, but this year the climate has been different.
The first, President Reagan has indicated that states that do not have this 21-year-old
purchase law would jeopardize significant numbers of federal highway transit funds.
And second, Governor Cuomo has announced that this issue of raising the state drinking
age was his top priority for the session of the legislature.
For Cuomo, its passage is a major victory.
In supporters' raw argue that it reinforces his image as a leader for the state on human-like
issues.
I think the irony politically is that President Reagan provided at least in part some incentive
for the legislature, whether it would have passed with just Cuomo's strong support remains
a question.
Members of the legislature are certainly quick to realize the potential political fallout
from the loss of millions of federal dollars to New York state.
Governor Cuomo, to his credit, took the lead on this issue last year, and now with the
help of federal pronouncements, the legislature has stepped in line.
So the governor has accomplished his major legislative priority for this session.
And as far as public opinion goes, the enactment of this law is one that has strong public support.
I'll be reporting more on our survey on this program in two weeks.
In the meantime for the legislative to set, this is Lee Merringoff at the Marist College
Institute for Public Opinion in Piquet Pse.
If you wanted to, or if you were somehow able to eliminate lawyers from the face of the
earth, there are those who would argue that the New York legislature would cease to function.
After all, many of the legislators are lawyers.
Legislative and committee staff are people with lawyers.
Many lobbyists are lawyers.
There are others who might argue that the legislature would do a whole lot better without lawyers.
One of those people is Deputy Majority Leader William T. Cadillac Smith.
Senator Euroman, I've always admired because you speak your mind.
And one of the things that you speak your mind the best on is the question of the relationship
between lawyers and legislators.
Do you think this is something we have to be aware of?
Well, I think you must be aware of it when you have almost 50% of the state senators being
lawyers and high percentage in the assembly.
I think it's a very important issue.
And somebody has to be the conscience of the legislature on this matter.
Well, I do say that no lawyer ever came forward with a lawyer registration bill.
We have probably been the only state in the nation that did not register lawyers and did
not have them pay a fee.
And nobody did it, so I did it.
I did it as a result of a letter from a constituent once who said that can this be true that they're
not registered?
And so I looked about and found it was true.
And so I immediately put a bill in and it was in for several years before I could get
the attention of the leadership which had to address the issue and declare that was
their opinion that the lawyers should be registered in this state and pay their share for
disciplinary proceedings.
And also we did involve that as security fund for those people who were dishonest lawyers
who had taken the client's funds.
Okay, let me go back.
You said you had to get the leadership's attention and the old saying about the fellow
who made the mule go by slapping in the head with a two by four.
First you had to get his attention.
Is that what it took?
Well, it took quite a bit.
And I remember on several occasions when there were increased fees for the other professions
which we do occasionally, I would get up on the floor of the Senate and lead the list
of those who had their fees increased and questioned whether or not the lawyers were
included.
And of course they weren't.
I knew they weren't, but nobody would respond.
But there was a rhetorical question and I did this a few times which got the attention
of some people at least.
I think the general public was not aware that they didn't pay their fair share.
And so finally I think that I kind of embarrassed them into it.
Well, admit us into the back cloakrooms of the Senate club.
You go off the floor, you've just suggested heresy that lawyers pay fees like everybody
else.
Did you get a little, did you get a little kidding good nature kidding?
Oh sure.
They considered immediately that I was a lawyer's enemy and they're critic and everything.
That's really, I wasn't except on this particular issue.
I recognize of course the power of the legal profession here.
But I also thought that it was only fair would help their image.
I mean, if they paid their fair share, I said, fellas, you just got to pay your fair share.
Everybody else does why are you exempted?
And they grinned and smiled and that's about all I could get out of them.
But finally they aceded that I was right and we did get the bill out of committee and
pass it in 1981, the first one.
Now, did you hear from the bar associations?
Well the bar association we satisfied with the security fund.
I don't think the bar association would have approved the disciplinary funds.
That is the original registration fee, which is only $40.
Every two years, have we not brought to their attention that really they needed a security
fund to take care of those people who the lawyers had stolen their money?
So what we had here is a situation which you were going to use some of the money to discipline lawyers.
If I get it right and some of the money was going to be used to help people who had been,
whose money had been absconded by lawyers.
Right.
And this, this brought out on the floor and one of the senators said, send or smith a urine
for it, they're crooked lawyers.
I said, sir, I did not infer they were crooked lawyers.
But let me read the list of the people who have claimed that they've been
jet by the lawyers and the money has gone and what are we going to do about it?
And so that answered that question I thought.
And so we found out that really there were more people out there who were deserving of
some funds than we had money in the fund for.
Right now there are $9 million in claims by clients that the lawyers have taken their
funds and stolen them.
So that's one of the reasons at the present time I'm asking that this biennial registration
fee of $50 would be raised to $100.
And I don't think that's even enough.
I hear they're giving me a tough time on $100 now and that's only every two years so
it's really just $50 a year.
Right.
Oh, surely are.
I expected it and I think the lawyers and the latest senate that get their kicks out of
picking on me because I'm not a lawyer.
And so they net picked the bill and they've done it.
They did the original bill.
They built Nick picked it for an hour or two on the floor and I took a list and I said,
well, gentlemen, I'll take your suggestions in the consideration.
I did some of them.
I amended the bill but I said when I come back you're going to do the same thing over
didn't they did.
But eventually it passed $47 to $7 or $8 in the senate and went to the assembly and was
passed over there.
But I think that they resist to the last imposing this fee upon them and also there is an
inference that there are dishonest lawyers in this thing because we do have the client
security fund in there which will pay these people back and we paid several million dollars
back already to these people but we still can't pay the total amount.
We got $25,000 limit.
The other day we had a case up in Wayne County where a lawyer took $200,000 from an elderly
lady as funds who was in a nursing home.
In the first time they found out the money was gone when he didn't he was responsible for
paying the nursing home fees and they didn't get the money so they inquired and the guy
had stolen the whole $200,000.
The guy only got five years probation.
I mean it's ridiculous what's going on in this state.
How did he only get five years probation?
I can't help pursuing this a bit.
Well he comes under the disciplinary proceedings which are run by lawyers and they're one of
the pellet divisions and so I suppose they were sympathetic to one of their kind but
to me if a guy had stolen the $100 out of a grocery store till he'd probably gone to jail.
This guy got probably more than $400,000 when you get down to it.
We don't know the total amount the guy has stolen.
Now Assemblyman Miller he didn't he says he didn't subscribe to this statement but
he once told me that the Senate takes care of the doctors and the Assembly takes care
of the lawyers.
He cited that old quotation.
If that's the case how does that old work out and what we're talking about?
Well I think really the legal profession finally decided that they better accede to my
suggestion that they be made honest and I think this only makes them equal to doctors.
I mean the fact doctors pay a higher fee than the lawyers do at the present time except
for the security fund which is certainly was done with the approval of the attorneys
here, the lead bar association.
I think it takes a lot of the load off their back on responsibility but it still does
not cover enough to pay everybody back there who had their funds stolen.
Now Senator Farbead from you to comment on the other house but what I really meant by
this question was do you find more pro-lawyerism in the Assembly than you do in the Senate even
in the Senate?
Well I'm not being in that committee with Assembly I guess it's probably true but I'm not
sure whether that's true or not what Mel Miller said maybe he said is true I expect he
would being over there.
Well let's take a look for a second about your idea this idea of the security fund
in the Senate that's very interesting that if a lawyer does something bad to a client
there's this fund to dip into to get something out.
Now the state and I swear to you I did not come in here with this loaded intention but
here now we have the same sorts of proposals that have happened in other states for doctors
from our practice insurance.
They mess up as a big pool of money and instead of the insurance company handling at the
state has a pool of money which they handle out now.
I know speaker think has some kind of an idea about setting up a special company to do
that but what about the idea of the same kind of fund for doctors that exists in the case
you're talking about for lawyers?
Well for some unknown reason stealing money is not considered malpractice I don't understand
it but I assure you that doctors can be and they do carry malpractice insurance which
is a very small fee.
I mean lawyers.
Lawyers do yes.
And why stealing the fund is not considered malpractice I don't know.
Of course they can be disbarred if they're caught at it but it's not covered by their
malpractice insurance so that keeps their malpractice insurance very low.
And so the only way we have to make these people whole who have had their money stolen
is to set up a security fund and it's working very well but we also find that there's a great
number of people there are nine million dollars out there and claims right now and we believe
they're probably more than that once people become aware that they can apply for this
funds out of this security fund.
Well the question then is would a similar idea for doctors be appropriate?
Well I don't think they could afford that I mean I think it has to be covered by an insurance
policy.
Okay let's go back to the central thesis here that we're working on and that is lawyers
influence in the legislature.
Now I know you're famous for jogging them about this.
How do you see it working out?
Do you see that there are special places that the public really has to be very aware that
there are a lot of lawyers in the legislature?
Well I think generally the lawyers are more able to handle with a legal side of it like
drawing bills and so forth all of a personally as a non-lawyer.
I hire a lawyer we have a system down here where we can get the bills drawn for us.
So the lawyers tend to share the most important committees.
You'll find the finance committee is shared by an attorney and I'm sure the ways it means
is the codes committee that's a given that they would share that the judiciary committee
and some of the more important committees and therefore they can wield a tremendous amount
of influence as chairman of that committee.
No I don't say it's all bad but I'm saying that you have to be look at it with a sort of
a John Dosty when you have over 50% of the or about 50% of the senators are being attorneys
that they look at it from a different point of view than many of us who are not attorneys.
Now Senator I'm going to put it to you here.
I want to ask you this lawyers in the legislature we have too many little graduates from law
school there are in fact a lot of people who never get to practice I heard up to 50%
in other words there isn't enough work to go around and so I have a question for you.
Is there a temptation in your mind is one of the things you look for the slightest temptation
on the part of those lawyers who are sitting in the legislature to write themselves in
and their responsibilities into more bills.
Make more work.
I don't know as I could prove that.
I can't tell you that for sure.
I think there are some bills that have to do with attorneys fees.
They're not too many but there are a few having to do with a state's perhaps and so forth
and so they may or they may not.
I guess I can't in the next part and I've never really researched that part of it.
Well I'm thinking about something like writing in that we have a situation now where we find
somebody gets a million dollar award for a malpractice suit and the lawyer gets a third
of that.
A lot of people are incensed about that.
Well as you know under the medical malpractice new bill that we just introduced it was just
introduced in the Senate it was limited to 20% per contingency fee which is really causing
a lot of screams in the lawyers because of presently they can get 30 to 50% I gather there's
nothing in the legal in the law about whether or not their percentage is prescribed by
law it may be under the court system may decide whether that's a fair amount or not
but I don't know.
But isn't that and just what you're talking about an inherent example of where there's
a potential at least conflict of interest?
No I think there is.
I think there's a lot of potential problems with the surrogates with wills and so forth.
The surrogate judges appoint the lawyers and that's a very important position in some
places and look at even some places and that's very political in many many parts of the
state and then perhaps all.
So once you get a will given to you by a surrogate judge you've got a certain responsibility
you're going to get paid so it's a familiarity it's a sort of eternal organization I guess.
Now you're a farmer right?
Yeah I am.
So I want to know do you like lawyers?
I like lawyers as friends sometimes they're profession their actions as attorneys I don't
like and they seem to be rather well they look down upon the other people who are not lawyers
and I guess maybe they have a right to do they've been trained to do this and they're trained
to try to have responsibility to protect their clients.
And I voice the ones that I've always have have protected me I don't know as they've
always protected other people's clients though but I do know they're good and bad lawyers
like there are any good and bad farmers I mean they're just on as farmers and they're
just honest in any profession.
Well there's more legal profession or not I question but they do have bad apples there
otherwise we wouldn't need this client's security fund.
There's a famous line from Shakespeare which says the first thing I have to do is kill
all the lawyers.
Now I think that's a little bit much but do you think there are too many lawyers in the
society?
Well I understand that there are going to be a million lawyers in this country by 1990
I think that's a surplus of them and of course they tell the story about the little country
town the south and the lawyer for lack of any place else to go went there and so he started
going and pretty soon he got another lawyer to come in there so immediately they started
suing everybody and each other and going to town so I created a tremendous amount of
business I suspect this could go on throughout the whole nation if we get too many lawyers
because they will be very litigious and we're going to have a lot of a lot of more lawsuits
than we presently have.
Well it's not a for me to decide whether they're proper or not to bring these court cases
but it's going to happen and it's going to cost the public a lot of money.
WT Smith.
So WT Smith is keeping an eye on the lawyers in the legislature.
As these programs have gone on I've always told you that WT is a remarkable man that's
because he's one of those rare birds in the legislature who when he can does the right
thing.
Smith knows that the legislature is a natural habitat for attorneys there are several
reasons for this in my opinion lawyers like insurance persons are able to get away from
their practices for a few days to get to Albany for a legislative session.
In other words they're in command of their own time.
Then too the way the system is constructed lawyers are natural beneficiaries of being legislators
one tends to hire a lawyer who is also a legislator because being elected has status
connected with it and there's always the hope that when you hire the lawyer who also happens
to be a legislator that some of that status will rub off in your favor on your case.
There are many reasons for this not the least that a judge in a case is very likely to
be paying some special attention to a legislator who may one day vote on his or her judicial
budget or who may be in a position to help promotion possibilities in the state court system
or as Kojak says like that.
And as WT pointed out in his remarkable interview lawyers hold most of the key positions in
the state legislature as chair people of the key committees like codes and ways and
means and judiciary to say nothing of the important speakership and majority leaders position
in the senate and I won't even bother to mention the chief executive of the state who
as we all know by now is a lawyer's lawyer.
So as WT Smith points out it is not all that surprising to learn that if they had their
way lawyers in the legislature would have been the one profession that did not have a registration
law or a fee to back that up.
When WT the farmer had the unmitigated nerve to ask them to come up with $25 a year the
first time and now $50 a year you could have heard the screams all the way to Sacramento
which is after all a long way off.
But WT being the salesman that he is was able to convince the lawyers that it was not a
good idea to call attention to themselves and that their special place in the legislative
system was secure and in my opinion WT probably really helped the lawyers rather than hurt
them.
There is a trick in the legislature where most of the bills are passed on what is called
a non-controversial calendar meaning that the bills have been agreed on in advance by
both parties.
The way to kill a bill is to ask for what is called a slow roll call.
A slow roll call means that every senator has to answer yea or names instead of the short
roll call in which only four names are called.
Well on WT's Lawyer Registration Bill when a wise guy asked for a slow roll call in
order to get Smith to lay aside his bill one of WT's allies turned around and said yes
but the five guys who are calling for the slow roll call shouldn't be lawyers.
Ah well you had to be there to understand the joke.
Anyway the people are well served by WT Smith Republican of big flats who remembers who
he is and who he's serving and why and that's because he stays in touch with his constituents
and how does he do it by phone of course in other words WT phone home.
That's our show for this week.
Join us again next week for another look at state government and politics.
Bill Graulty produces an edits this program.
Rick LePkowski is Associate Editor.
Please address comments and questions to us at WAMC box 13000 Albany New York 12212.
I'm Alan Chartock.
The legislative Gazette is a production of WAMC News.
Alan Chartock is executive producer.
This program is made possible with funds provided by the State University of New York
College at New Pulse.
