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?

kanBARoo Court. 51st Installment. Online Charges: The State Bar's Latest Power Grab

In the State Bar establishment's summer power play, the Board of Governors authorized Internet posting of the State Bar's mere allegations against a Member. For once, even the county state bar organizations protest, by opposing the Board of Governors' 18-4 decision. Dissenters focus on the threat to the reputations of innocent attorneys, who the State Bar says constitute 9% of its respondents, but the State Bar argues from the wrong statistic, grounded in tacitly assuming false charges' reputational harmlessness unless the accused is completely exonerated. Critics mostly accept the focus on the 9% statistic, despite its invalidity as a measure of wrongful harm to reputation.

The State Bar places the policy's critics in the unfavorable position of opposing transparent public administration and the public's right to access public information conveniently. Assuming a stance that seems to oppose the public welfare, the critics can succeed only by asserting that the web disclosures violate some basic right: according to legal ethicist Diane Karpman, the presumption of innocence. (Karpman, Online charges catch the good and the bad (August 2008) California Bar Journal.) She's right, but the argument is impossible to win. To prove that the posting violates the presumption of innocence, a respondent must show that the public disclosure is intended as punishment. (See Bell v. Wolfish (1979) 441 U.S. 520, 585 [dis. opn. Stevens, J.].) Inherently, the State Bar's punitive intent isn't hard to prove, shaming being a traditional means of punishment, but under Bell v. Wolfish, a reviewing court must find that the measure has no rational justification except as punishment, to conclude punishment without proof violated the presumption of innocence. (Id.)

The State Bar's hypocrisy in playing the public-protection card is shown by the contours of its new posting policy, the policy's anti-public interest direct effects, its internal contradictions. One of the most important public interests regarding legal practice is attorney-client confidentiality. As Karpman argues, the State Bar's new posting policy conflicts with the public interest by undermining confidentiality in matters where the accused attorney's clients haven't agreed to disclosure. (Karpman, supra.) The State Bar's expungement allowance for administrative suspensions, amended this summer for greater leniency, contradicts the State Bar's claim that the public's right to know is paramount. Most tellingly under the new posting policy, when the Member is completely exonerated, the rule requires removal of the NDC and the opinion dismissing it within 60 days. With the last rule, the State Bar disregards both attorney reputational interests and public informational interests, to favor the State Bar's self-protective instinct.

Supporting barriers to public information access yields the high ground to the State Bar. The new posting policy threatens innocent reputations only because the State Bar self-servingly proposes postable and unpostable categories that increase the weight of adverse information and strengthen the State Bar’s bargaining posture in disciplinary negotiations. The policy undemocratically hides private complaints filed with the State Bar, information that would show what investigations the State Bar omits, a matter publicly interesting. And the State Bar adds only minimal caveats when it posts the Notice of Disciplinary Charges, without warning, for example, that no court reviewed the allegations.

All public information should be available on the State Bar's web site, and all information related to disciplinary matters should be public. If the State Bar claims such posting is impractical, then it must admit that a selection process biases the posted information. Unless the State Bar will allow the public web access to all records related to discipline, offering up the Notice of Disciplinary charges before any court has seen it is not to inform the public but rather to attempt its influence. The Notice of Disciplinary Charges often fails to state disciplinable charges. Yet even exoneration of specific charges will fail to remove them, which endure in perpetuity, while within sixty days, the State Bar would excise proof exonerating a respondent of all charges.