Sunday, May 6, 2007

Ethics Journal Winter Edition Hits Street

The Georgetown Journal of Legal Ethics has published its Winter 2007 edition. One article in particular is dear to my heart -- The Case for Less Secrecy in Lawyer Discipline, by Professor Leslie C. Levin of the University of Connecticut School of Law. Professor Levin argues convincingly that increased transparency will allow the public and the profession to more accurately evaluate whether self-regulation operates in the public interest. I absolutely agree that there should be far greater access to information concerning disciplinary matters than most bar regulatory regimes presently permit.

As a blogger with an interest in the legal profession, I regularly visit the web pages that provide information about lawyer discipline. The sites for the highest court or state bar in each state are my primary sources. I have learned that public access to information concerning bar discipline varies widely from jurisdiction to jurisdiction -- for instance, Illinois provides information concerning pending charges against lawyers and trial level reports. By contrast, the District of Columbia does not have on its web page (or anywhere else as far as I can determine) any readily accessible information regarding pending charges, scheduled hearings, the identity and background of hearing panel members, or hearing committee reports finding misconduct. The court's rule governing disciplinary procedures mandates that such information is a matter of public record (see section 17).

The lack of public access to the hearing committee reports is particularly frustrating to me -- you can't evaluate the quality of a disciplinary system without ready access to the crucial trial level findings. Indeed, in D.C., it is my experience that you often need to read Bar Counsel's post-hearing briefs to understand a case -- as the hearing committees sometimes simply ignore facts or evidence that is inconvenient to their conclusions.

I recently was involved in a forum to discuss proposed "reforms" to the D.C. bar discipline system. The signature proposal is an unworkable proposed rule for consent dispositions that will make it virtually impossible to resolve cases short of disbarment by consent. Under the rule, it would be far easier for a criminal defendant to plead guilty to first degree murder and be sentenced to life in prison than for a lawyer who has engaged in a single act of neglect to agree to a public censure. Obviously, swift and efficient administration of discipline is not a goal of the proposal.

The proponents justify this consent disposition rule under the guise of a need for transparency. Notably, the committee that studied the disciplinary system held no public hearings prior to issuing its report. It held a single public hearing after issuing its draft report that resulted in thoughtful criticism that did not change a word of the recommendations. I guess transparency is in the eye of the beholder.

I would be more sympathetic to the invocation of a need for transparency as justification for an unworkable rule if all public information about pending D.C. cases was available to the public on line. As indicated above, it is not. (Mike Frisch)

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