Thursday, September 28, 2006
posted by Alan Childress
You know the old saw: “Fool me twice, shame on, er somebody…oh hell I want a refund from Toastmasters Club of Greater Beaumont.” Apparently that policy drives the trend in state bars –- notably about to include California –- to create a new punishment: "Permanent Disbarment" [hear the echo sound?]. That's where the candidate for readmission to the bar is told years in advance that the answer will be No, Never – regardless of wholly changed circumstances, proven sobriety, or mechanisms in place to protect clients. It’s the One Strike Rule, I guess because Three Strike Laws have worked so well in the real world and this one looks three times tougher. Recidivism among the disbarred must be rampant, and the bar has given up on imagining redeeming or correcting its bad apples.
My view: public policy should not be built on old saws that even Yale-educated Presidents cannot keep straight. My real view: recidivism is not the policy basis for Permanent Disbarment at all. Rather it is a cheap PR trick (public relations, not professional responsibility), and nothing more. There is no social science, or logical experience from those of us who care about how the profession self-regulates, to show that Regular Disbarment has failed.
For now, I consider the PR value of this trend and find it wanting. I actually favor cheap PR stunts, but not bad ones. Here we have an ad agency pitching to Wendy’s that they should falsely finally admit they add worms to their burgers, then make a big deal publicly about ending the practice. Dave would not retain those ad wizards, if only because he is dead. Must be the same ad guys who think I will buy a VW Passat just to drive it white-knuckled while obsessively wondering whether the next green light will be my last. More below the fold.
Without some evidence that disbarment has failed or routinely leads to reinstatement, this new category of discipline fixes a non-problem while telling the public that lawyers are bad, and lots of them are so bad that they cannot be redeemed. Even the proponents of the new rule in California (quoted at link above) talk "symbolism" and "public reputation" while converging, it turns out, on one anecdote about one repeat offender who wound up disbarred anyway. Under this view, the only solution is to throw in the towel on future acts of discretion, mercy, or reason in the reinstatement process. Let’s pretend we know now what the future will bring, and who can contribute to society down the road. But don’t trust the future review committee to sort it out with actual data and personalized experience.
The PR value of this to us bar members puzzles me. I guess passing a new Permanent Disbarment is supposed to tell laypeople that we are getting tougher on lawyer abuses. I think they will be shocked to hear that disbarment was not permanent before. If they thought it through, they may be able to imagine some circumstances in which a disbarred attorney, years later, would be re-barred (an imagination we now deny is legit). But they would have assumed (and rightly so, statistically) that most disbarred lawyers will never practice law again. Without a wave of recidivist bad apples, reinstated under the old rule who then abuse such a gift by repeating their failure, we seem to be confessing to a crime we did not commit.
I think the public will focus more (if at all) on the underlying laxity confessed than on the new get-tough stance taken. It will surely draw attention to the justified-but-likely-unpopular reality that most punishments meted out to unethical lawyers are suspension or less. At best it is a definitional muddle: to a layperson, isn't a non-permanent disbarring just a "suspension"? At worst it implies that all the lawyers given regular disbarment are really "only" suspended.
This message to the public does not scream out "We are tough on bad apples." [BTW, it's time the cliche became bad spinach. I count zero deaths from apples this year.] It screams out "We have been candy asses before but now we will be really hard on a few lawyers if you kindly ignore that we are giving almost all other unethical lawyers a level of punishment we just confessed was candy ass." That is not a PR program I wish to join, or one for which I predict success. More directly than the Wendy's analogy above, this is really Chez Nous advertising it has rats in the kitchen, when it may not in numbers being advertised, but Hey look within a year or three we will eradicate the worst of them. The public might have expected zero tolerance on kitchen rats, if only a tad unrealistically -- and feel disinclined to praise the restaurant's new policy, much less eat there. Fire that ad agency, please. I don't think the agency ought to go out of its way to hide Chez Nous's shortcomings, but making them front and center of a positive campaign is not good PR.
On the merits, looking at the kind of acts that lead to Permanent Disbarment in states already using it, we find they are quite similar to those which used to lead to Plain Vanilla Disbarment. That includes commingling of funds, lack of cooperation with the bar in the discipline process, practicing on a suspended license, and much other puzzling behavior which can only be explained by personal implosion by the lawyer--drug abuse, alcohol, gambling debt, bad divorce. These are often horrific acts that deserve punishment, but ironically they are also often so context-driven (like alcohol abuse or severe depression leading to no contact with clients and ignoring the bar's discipline inquiries) that one can fairly predict that the lawyering problem can be fixed once the person problem is.
Permanent Disbarment denies such a possibility. Denies it is even possible or worthy. Bars set up alcohol remedial programs all the while saying by its highest discipline that such human weakness is unforgivable or such disease is incurable. As for funny money habits that deserve severe punishment, this form says that no amount of institutional control of practice down the road (such as accepting independent accounting oversight and making restitution to past victims) can persuade us that person can practice again under any conditions. It is just giving up, and mainly on the kinds of problems that actually could be fixed. [More on the policy arguments in a future post, and maybe even some actual proof so I am not just posturing with the rubric of social science. Nah.]
And even so, it smacks of occupational arrogance that the message seems to be that the candidate will do more harm as a lawyer who is specifically watched and regulated -- or put on notice that they need to fix a problem before seeking reinstatement -- than as a bartender, spinach inspector, tunnel builder, or VW salesperson. I deny that we lawyers are so special that our exclusivity is unending and unyielding to those otherwise qualified to do the job.
John Dean did learn from Watergate, and to many he leads a worthy life. Are we saying that people like him, even the New him, belong better hawking french fries? I don't think we should, and I especially don't think we have the perfection to know in advance who cannot be redeemed, who cannot be cured, who cannot be made safe, who cannot be better. It surrenders on the imagination of what could happen and what people can become. It creates no incentives for them to become better. Bluntly, it closes a necessary door, for the bar's members and its own disciplinary personnel, just to make some sort of public statement.
A law school parallel is the readmissions process offered to students who fall below a 2.0. The real standard has to be the prediction of future success, in school and after. Any other standard -- such as how this will look to others or the kind of message we want to send the rest of the students -- is for show. At least there the show sends a message many would find legitimate, and perhaps deserving of hard and fast rules for readmitting students rather than individualized discretion. With Permanent Disbarment, I fail to see the PR plus that is worth the sacrifice and hamstringing that results. But even on the merits, anyone who criticizes a readmissions committee years later when it took a chance on a kid, but lost, is best answered by a colleague of mine who defended readmissions discretion from 20-20 hindsight thus: all we need is a crystal ball or a time machine.
All this human and institutional toll for a PR stance with no real positive kick to the profession. If it's just to make a PR statement, at least it should make the right one, and Permanent Disbarment does not.