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June 22, 2003

Should Lawyers Control Lawyer Discipline?

Filed under: pre-06-2006 — David Giacalone @ 2:58 pm

The Sunday Gazette (NY Capital Region) published an op/ed piece today entitled Sustained Objection: Lawyer-disciplinary process still woefully inadequate, which was written by ethicalEsq’s Editor and was originally called “D for Discipline.”  [click the link above link to read the text; the article is available by subscription only at the Gazette site]

Thirty-three years after a blue ribbon panel of the American Bar Association declared the lawyer discipline system to be in a “scandalous situation,” and over a decade after a follow-up ABA report in 1992 found that the system was still “too slow, too secret, too soft, and too self-regulated” there is very little improvement. I believe that much that is wrong with the attorney discipline system stems from the fact that it is controlled by lawyers, and that nonlawyers should instead be in charge (obtaining advice from staff attorneys as needed).  I’d like to know your opinion: Should lawyers or nonlawyers control the lawyer discipline system?   In addition to requesting (as always) Comments to this posting, I would be pleased to place a well-written Essay (up to 600 words) taking an opposing viewpoint in the Essays folder.

For further reading, I suggest HALT’s Lawyer Discipline Report Card project.  In the report’s Summary , HALT states:

Public Participation One fundamental problem that HALT’s Report Card exposes is the lack of public participation on lawyer discipline hearing panels. In most states, lawyer discipline agencies are run by state bar associations. In these states, the bar also acts as a trade association, charged with protecting the status and economic interests of the legal profession. In the remaining states, although the disciplinary agency is technically independent, the state bar has considerable influence over who sits on the disciplinary governing board, who is hired as bar counsel, how complaints are processed and what is considered unethical conduct under the state’s rules of professional responsibility. This not only poses a strong conflict of interest, but it also discourages consumers who have already been victimized by lawyers from filing complaints with agencies that are by, for and of lawyers.

In all but one state – Iowa – lawyers make up at least two-thirds of the adjudicating committee. In Arizona, California, Georgia, Indiana, Kansas, Kentucky, Mississippi, Michigan, North Carolina, Pennsylvania, Tennessee and Washington, lawyers comprise 100 percent of lawyer discipline hearing panels.
Recommendation : Public Participation The lawyer discipline system should eliminate its inherent bias by creating an independent regulatory system. Canada, Great Britain and Australia provide useful models for independent regulation.  Canada and Great Britain have provided oversight through ombudsmen and advisory commissions with most of their members drawn from outside the bar.   Australia has an independent office that handles complaints and Australian law professor Adrian Evans reports that the system consequently performs more effectively.

Also, check out In the Interests of Justice: Reforming the Legal Profession (2000) by Deborah Rhode, a professor of law and director of the Keck Center on Legal Ethics and the Legal Profession at Stanford Law School.  Professor Rhode found that over two-thirds of Americans lack confidence in the integrity of the lawyer discipline system.

update: See our post HALT Suggests a “Better Way to Discipline Lawyers” (June 25, 2003)

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