The mirage of lawyer discipline

Larry Ribstein —  25 July 2011

The Des Moines Register (HT Law Blog) reports that the Iowa Supreme Court is considering offering lawyers the option of agreeing to expedited law license suspension in exchange for confidentiality:

Under the proposed rule change, lawyers suspended for stealing from clients, drug and alcohol problems, and neglecting important cases could hide what they did and resume practice without clients ever knowing what ethical violations they committed.

The move comes after a Des Moines Register investigation in March found that severe sanctions by the largely self-policing system were rare and that some of those decisions take years to resolve and become public. * * *

The measures come as public reprimands, suspensions and license revocations have increased almost 50 percent since the 1980s, a rise that mirrors growth in the number of lawyers practicing in Iowa. Many are being disciplined for negligence of cases or incompetence stemming from addiction or mental health problems. * * *

Last year, 26 lawyers were suspended. Fewer than 30 across the state have been formally disbarred in the last decade, the Register found.

Not that this is so different from the present system.  The article points out that, since allegations are confidential until resolution, “clients may not know for years about a lawyer accused of wrongdoing.”  It gives two examples — a lawyer who “was spotted by a narcotics officer driving down U.S. Highway 65 with a glass [meth] pipe in his hand,” and another who “was convicted for repeatedly choking his ex-wife. . . to the point of unconsciousness in front of their three young sons in 2006.”  (The latter got a 30-day suspension.)

The Law Blog comments

the proposal makes a certain amount of sense in that state bars are notoriously understaffed, making it hard for state bars to vigilantly police lawyer misbehavior, particularly when it comes to more high-profile lawyers, who have the means to fight ethics investigations for years on end. But the flip side is that consumers, particularly those shopping for a lawyer, have an interest in knowing about lawyers’ past ethics transgressions, at least those that have been conclusively established.

The bottom line is that under the current setup, once you get your ticket of admission into the bar by graduating from an accredited law school and passing a bar exam you get a lifetime monopoly of purveying legal information with little scrutiny.  Even if the Iowa proposal to trade transparency for speed can be defended by necessity, this necessity is itself created by the inherent inadequacy of state supervision of lawyers.

There is a better way.  In Law’s Information Revolution (see recently posted revised version) Bruce Kobayashi and I discuss potental reforms in lawyer regulation and intellectual property law to facilitate the sale of legal information. Among other things, we would let software practice law.  Instead of making the software get a license to practice law, consumers would be protected by market forces plus specific regulation of false or misleading information.

Some folks (mostly lawyers) would respond that markets would be inadequate to cope with the horror of “legal” advice rendered by non-lawyers.  But can this really be worse than forcing all consumers of legal information to rely solely on a lawyer’s shingle behind which any sort of person may lurk?

Larry Ribstein

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Professor of Law, University of Illinois College of Law

8 responses to The mirage of lawyer discipline

  1. 

    What disclosure does Legal Zoom make of drug use by its owners, officers, and employees?

  2. 

    Ah, the “go quietly or else…” approach, except that, like the cockroaches they are, they keep coming back and getting reinstated.

  3. 

    “markets would be inadequate to cope with the horror of “legal” advice rendered by non-lawyers”

    From what I’ve seen, that wouldn’t be worse than the horror of the legal advice rendered by many lawyers. And that’s not counting the slimy ones.

  4. 

    If the law permits software to “practice law,” lawyers such as I may have to switch from a transactional practice to a litigation one, but I am confident there will be plenty of new litigation to support the new litigators. Software can do only what the operators tell it to do, and most non-lawyers won’t understand what they need to tell the software.

  5. 

    Let me ask a few very pointed questions, taking Iowa as an example context:

    Where in the laws concerning lawyer licensing, is the Bar Association designated as the licensing agency?

    Where in the State Agency org chart is the Bar Association?

  6. 

    Not only are disbarments rare, but permanent disbarments are rarer still. Nine out of ten disbarred lawyers who request their licenses back, get them.

    When you ask a lawyer why his profession has such a bad reputation, he usually answers that this is the work of a small number of bad lawyers who discredit the honest majority. If it is true that corrupt lawyers are few, then it shouldn’t be hard to kick them out and keep them out. Is the country so short of lawyers that it couldn’t do without a few shysters?

    If one lawyer in the right could stand against a hundred in the wrong, that would be a tribute to his moral courage and to our legal system. But, if one lawyer in the wrong can stand against a hundred in the right, then what a pusillanimous lot that hundred must be and entirely deserve public contempt.

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