Monday, September 26, 2011

Accountability And Transparency

If a state bar has an interest in accountability and transparency, one thing it can do is publish and make available on line an annual report of its disciplinary activities.

Many bars do this; many do not.

Michigan has just released its report for 2010. Most notable from my point of view are the statistics on consent dispositions.

Last year, there were a total of 53 consent dispositions which accounted for 51% of all discipline imposed. Five of 22 revocations were by consent. Of suspensions of three or more years, three of five were consents.

Notably, the short suspensions (with automatic reinstatement) were resolved by consent 57% of the time. Reprimands were resolved by consent in 30 or 36 (83%) matters where such dispositions were imposed.

In short, the consent process disposes of most minor misconduct cases. The system is free to focus on the serious stuff, as there were 17 litigated revocations in 2010. In cases where the result was suspension with fitness, there were 18 contested matters.

Some respondents apparently bargain for a sanction less than revocation, as 60% of cases that involve a suspension of three or more years were consents. This is fine with me so long as such suspensions are imposed with the understanding that there will be a heavy burden to prove subsequent fitness for reinstatement purposes.

These numbers tell me one thing - the Michigan system trusts its disciplinary counsel to be able  to tell the difference between serious and minor ethical violations and to implement agreements that fairly reflect the misconduct.

In the District of Columbia, by way of contrast, an infinitesimal fraction of cases get resolved by consent.

I can't give you the exact number because, unlike Michigan, no annual report has ever been made available on line. Cf. My thoughts on accountability and transparency. I think they do compile the numbers and distribute them at the annual (by invitation only) disciplinary dinner.  (Mike Frisch)

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