Monday, September 5, 2011

Thoughts On Lawyer Discipline

If ever there is a case to be made for non-public discipline, the preceding post is it. That fact gave me some blogger's remorse about bringing any attention to the decision.

I do think that the "writing yourself into a will" aspect of this (and the prior) case has some possible educational value. It does also address the problem of the aging practitioner who has made a (likely good faith) mistake. He had checked case law that was later trumped by changes in the governing rule. He certainly acted in a manner that negates any hint of an improper intent. The "inheritance" was an end table and some tools.

As a bar prosecutor, I've been assigned such matters and had to make judgments about the needs of public protection versus the humane considerations that recognize a lifelong reputation as a decent lawyer. Trust me, the bar prosecutors know who the truly bad apples are, even if they can't prove it.

Back when informal admonitions were confidential, I can remember a couple for relatively benign neglect that I issued (with appropriate review, as D.C. bar counsel can't ever be trusted to exercise discretion) as the senior lawyer was winding down a solo practice. The disposition kept the attorney's name off the list of shame in the lawyer magazine.  He or she was able to conclude 60+ years in practice without public professional blemish.

A program of confidential diversion (D.C. has this) is a possible way to deal with such cases. After reflecting on the issue for many years, I believe that there is a compelling public interest in full access to an attorney's disciplinary history--complaints and all. A case like this suggests that there may be cases where an otherwise public finding of an ethical violation might be treated in a non-public manner.

These thoughts bring me back to a post last week in which California's new interim chief trial counsel announced a "zero tolerance" policy for ethics violations. Given the many twists and turns that the rules create, I am comfortable in opining that such an approach will never work. There aren't enough assistant disciplinary counsel to enforce such a policy. There shouldn't be that many, either.

The disciplinary process is worthy of trust (or not) for how it responds to the most serious misconduct, i. e., handling other people's money, some forms of criminal conduct, practicing after suspension and general acts of dishonesty. How quickly (consistent with basic due process) do the allegations get resolved? Can the attorney practice while the charges progress? For how long?

Can the attorney continue to practice without responding to the charges or participating in the process? A question like this one is the real "inside baseball" of lawyer discipline, unseen by the casual observer.

In New York and Nebraska, the answer is "no." In D.C., it is pretty much "yes." Nebraska and New York's approach reflects better policy. If a lawyer can't be bothered is participate in disciplinary proceedings or respond to a complaint, an interim suspension might help the accused attorney focus on the situation. A recent example may be found in this order from Indiana.

Next is consistency.

Are the serious cases taken seriously? Do the sanctions fairly reflect the seriousness of the found misconduct? Do the meek get the same treatment as the powerful, well-connected, or even well-liked?

In D.C., where you have both big firms and big shots, the last question was always a pertinent one. If not for continuing obligations of confidentiality, I could tell you some stories.

I judge a disciplinary system by the answers to the above questions.

And by a real commitment to transparency. You judge that commitment by reviewing the bar's web site.

If you can readily find a lawyer's full disciplinary history in a few clicks, there is a desire to be transparent. Honor roll: Illinois, Indiana, Pennsylvania, Louisiana, North Carolina, and Massachusetts are models of transparency.

I'm a particular fan of North Carolina's page on pending cases; you get a wealth of information that you could not pry out of some bars with a crowbar-- hearing dates, places and the identity of the hearing officers, complaints, answers, motions practice, etc. Kudos also to New Jersey, which recently made significant improvements in online access to DRB decisions.

Many bars make the information virtually impossible to find online. You know who you are.(Mike Frisch)

Per the comment: This post was not intended to reflect all of my thoughts on lawyer discipline. I certainly do believe that disciplinary counsel should adhere to the highest standards of professional conduct in all phases of their work. Indeed, that's one of the reasons I left.

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Interesting that your "thoughts on lawyer discipline" do not impose an obligation on Bar Counsel to hue to the truth, when charges are brought and a prosecution is undertaken against a lawyer.

Truthfulness is simply not part of grand game, when a lawyer, such as myself, objects to the documented, serious misconduct of a federal district judge. Far better for all concerned - bar counsel, the supervising state court, their colleague on the federal bench and his neglectful supervising colleagues on the Circuit - if the reputation and all future income of the isolated, friendless, solo practitioner is wrecked, than that anyone in the game actually be required to admit that the judge engaged in misconduct.

In my case, the judge's misconduct entailed (1) rewarding his former law firm pals ($800,000 or so) by (2) violating the FRCPs and (3) the federal judicial complaint rules. Among other misconduct.

Posted by: Richard Baldwin Cook | Sep 6, 2011 6:41:23 PM

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