Cassandra’s Continuing Lament

One of the hidden benefits (to me at least) of the pandemic nightmare has been the significantly increased access to disciplinary hearings and oral arguments online.

This new wealth of information has caused  me to reflect on the qualities that make for a disciplinary process that fulfills the responsibility to “assure that its regulations are conceived in the public interest and not in furtherance of parochial and self-interested concerns of the bar.” Preamble, ABA Model Rules at comment [12].

First is the crucial importance of the jurisdictions Bar or Disciplinary Counsel. 

The job of disciplinary counsel is unique and certainly distinct from the role of a criminal prosecutor. An important part of the job is to educate attorneys while protecting the public from the true bad apples. 

Thus the single most important trait needed for the job is mature judgment and sufficient experience (actual practice with clients, billing and law firm administration is mighty helpful if not essential) to understand the balance of interests and the realities of practice.

Ambitious Bar Counsel who view the job as a stepping stone to bigger things can cause a lot of trouble.

Second is the disciplinary processes and procedures when charges are brought.

I judge a state bar disciplinary system on three measures – efficiency, predictability and transparency. 

Can one readily find the disciplinary history of an attorney with a record?

How long does it take to discipline a lawyer for serious misconduct from soup to nuts?

Are the results consistent with the Preamble’s admonition?

A couple of thoughts.

The secrecy surrounding the handling of complaints is a highly corrosive aspect of confidence in these processes.

The public has an absolute right to know how the bars are handling – or not handling – matters involving (for example) allegations that members of the legal profession may have undermined the rule of law.

Structurally, multiple levels of review cause significant delays.

Courts that do not have a hearing committee to board to court structure impose final discipline far more efficiently than those that do.

Finally, if a disciplinary system routinely takes years to impose sanctions for serious misconduct, perhaps its time for one of Seth Meyers’s Closer Looks.  (Mike Frisch)