Wednesday, July 15, 2009

65th Installment. The state-bars’ public-protection myth & the misguided remedy of suspension

The state bars' official purpose centers on public protection, but the state bars' real purpose has always been punishment and deterrence. The mischaracterization serves both public-relations and legal purposes.

The public itself doesn't see state bars as functioning for protective purposes. A recent Los Angeles Times editorial expresses the common attitude of the public:

Whether Yoo or Bybee breached legal ethics in that way has been the subject of an investigation by the Justice Department's Office of Professional Responsibility, which can recommend discipline to state bar associations. That process, not a civil suit for damages, is the best way to hold lawyers accountable for malpractice.

This is the widely accepted popular view: state-bar discipline holds lawyers accountable; but holding accountable isn't a public-protective function. Accountability is the essence of deterrence, the primary function of punishment, and a component policy behind civil-litigation procedures.

When state bars claim their purpose is public protection, the bars focus only on the severity of detriment, on which its opinions, as well as those of the courts of record, dwell. A punitive system should match severity of deterrent to offense's seriousness and inversely to probability of apprehension. A protective system, in contrast, should match preventive measures to likelihood of committing further harm. Neither courts nor legislatures analyze the class of disciplinary measures serving the screening function assigned to state-bar discipline: most notably, what role does graded discipline serve for a system supposedly protective? Punishment by degrees of severity suits a deterrent or retributive system, where punishment should fit the crime.

Suspensions play no rational role in a protective system because character defects aren't time limited. Courts surreptitiously slide into a deterrence-oriented mental set when they impose suspensions. Deterrence is secondarily protective, confusing the issue when the state bars insist they are not deterrence's instrumentalities. The public accepts punitive but unprotective disciplinary measures, such as suspensions, because of tacit recognition that civil litigation insufficiently deters.

Understanding that state bars provide a deterrent that the Legislature can't abolish without replacement is a first step both in compelling the state bars to stick to actual public protection and reforming the laws governing civil litigation so they deter attorney misconduct. Attorneys today are already subject to a few civil sanctions for technical misconduct. When an attorney improperly divides a fee, it is forfeit. That's enough deterrence to render the state bar rule against fee splitting — hardly an index of moral turpitude — unnecessary for deterrence's purposes. This law illustrates how to deter the range of technical misconduct falling short of moral turpitude: relieve the wrongdoer of his ill-gotten gains. The mechanism can be widely applied to the gamut of misconduct violating rules and statutes deemed administratively necessary for the profession. If the attorney, for example, engages in unlawful solicitation, allow the solicited party's refusal to pay attorney fees, enforceable in the civil action or in the underlying action. Wrongdoing not involving moral turpitude in the strict sense shouldn't concern the state bars, and moral turpitude should have only one disciplinary consequence, disbarment. Disbarment is the only disciplinary measure serving a strict screening function; limiting discipline to disbarment follows from limiting the state bars to the protective function they claim as exclusive domain.

The expressed policy of public protection, not the actual policy of deterrence and retribution, is the correct policy, but the public-relations myth of state-bar dedication to public protection forms the basis for denying state-bar respondents the protections favoring criminal defendants. Proof before state bars need not be beyond a reasonable doubt, and a jury doesn't find culpability. In state bar matters, proof is in principle by clear and convincing evidence; a respondent in reality is lucky if afforded a preponderance-of-evidence standard. Prosecutors decide that a case goes to trial, one sub-Article 6 judge decides the facts, and state-bar respondents can't plead self-incrimination when inculpating matter concerns only state-bar charges. These practices would never survive constitutional scrutiny if courts recognized that state bars mete out punishment.

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