Wednesday, September 28, 2011

Interlude 22. Against routine public discipline

The consensus among state-bar ethicists holds that most disciplinary actions should be publicly accessible. The ethicists fail to recognize that their claims of the public’s right to know contradict their rhetoric about discipline’s public-protective role; if public protection were really what they want, ethicists would advocate imposing discipline at levels where the likelihood that an attorney will re-offend equals the likelihood that an undisciplined attorney will offend. This equilibrium would render publishing discipline records redundant and self-defeating. (To expose this muddle, I momentarily put aside my many objections to the ethical codes’ content.)

The likelihood of re-offense—the recidivism rate—should be crucial information for ethicists who believe public protection is paramount, because a rate higher for repeat offenses than for first offenses exposes the public to exceptional risk when attorneys return to practice. If they return unrehabilitated attorneys, the bars can hardly blame the public for its distrust! A paramount public-protection purpose, then, would impel the bars to discipline more severely—or if no level of discipline can neutralize disciplined respondents, to abolish graded discipline, disbarring any offending attorney. A recidivism rate, on the other hand, lower than the first-offense rate would mean that disciplined attorneys are overdeterred, because they're penalized too severely. Attorneys cowed into subservience pose another risk to clients: picking a blunted instrument.

The bars justify publicizing discipline cases based on the public’s right to know about measures bearing on attorney qualifications, but if they disciplined for public protection, they would rehabilitate fully or disbar. But then, the public would have no interest in knowing an attorney’s discipline history. Publishing and posting the identities of disciplined attorneys, in fact, would oppose the public interest; these practices create disparities in effectiveness between disciplined and undisciplined practitioners, since not just the public, but judges too, access public information.

Who knows the recidivism rates for disciplined attorneys? Surely not the state bars. Where are the state-bar studies concerning suspended respondents’ recidivism? That absence opens another window on the state-bars’ incompetence: their unconcientious abdication of serious professional regulation. And where are the state-bar studies of suspended attorneys' subsequent careers? Studies would probably show that public access to discipline histories levels the nominal gradations. Again, who knows?

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