Monday, June 18, 2007

Reflections On Nifong

The swift action of the North Carolina bar disciplinary system in the Nifong case is extremely rare, no doubt in large part because the former prosecutor threw in the towel immediately after the hearing had concluded. The bar has issued a press release patting itself on the back (and not mentioning earlier cases against prosecutors who had withheld exculpatory evidence in death penalty cases and escaped meaningful sanction).

This case was, so far as I'm aware, the first bar discipline case covered live on Court TV. I had hoped it would give the general public real insight into the nature of professional regulation. Instead, I fear that the take-away point is that bar discipline is both swift and sure. As a general proposition, discipline is neither swift or sure. Most bar cases take years to resolve. For instance, I tried one involving bill inflation by a partner of a large law firm in the summer of 1998 that is still going on. The public would be well served by increased transparency and media coverage of bar discipline cases. While few matters will generate the interest of the Nifong case, such coverage can only help the public evaluate whether self-regulation is in its interest or merely serves the "parochial or self-interested concerns of the bar."(Mike Frisch)

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Professor Deborah Rhode, Stanford, argues that the Bar would benefit from greater participation of lay people in Bar Association reviews, including participation on disciplinary boards. See her book, "Access to Justice". Do you agree? Can you cite examples of where this has worked well, or any studies about the benefits of greater nonlawyer participation in disciplining of lawyers?

Posted by: Ted Preston | Jun 18, 2007 3:25:22 PM

Great question. I am generally not a fan of systems that depends on volunteers to decide cases. Note that all disciplinary regimes that allow non-lawyers to participate give the majority vote to lawyers (in D.C., two lawyers and one non-lawyer sit on the hearing committees, with a lawyer always as the chair). I favor independent professional judges who are free from any influence from the organized bar. Also, in D.C., the non-lawyers are often lawyers spouses or lawyer neighbors/friends who may not be the "voice of the public" that we would hope.

Posted by: Mike Frisch | Jun 19, 2007 4:48:15 AM

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