NCJ Number
47624
Date Published
1976
Length
14 pages
Annotation
THE ADEQUACY OF THE LEGAL PROFESSION'S SELF-REGULATORY SANCTIONS FOR LEGAL OR ETHICAL MISCONDUCT IS EXPLORED AND ALTERNATIVE DISCIPLINARY PROCEDURES ARE SUGGESTED.
Abstract
DESPITE THE WELL-PUBLICIZED DISBARMENTS OF LAWYERS INVOLVED IN THE WATERGATE SCANDAL (LIDDY, COLSON, DEAN, AGNEW), THE LEGAL SELF-REGULATORY PROCESS HAS COLLAPSED. IT IS ESTIMATED THAT ONLY ABOUT 2.0 PERCENT OF THE ATTORNEYS WHO HAVE VIOLATED GENERALLY ACCEPTED ETHICAL NORMS ARE EVEN PROCESSED BY DISCIPLINARY MACHINERY. IN MANY JURISDICTIONS LESS THAN ONE COMPLAINT IN 100 RESULTS IN ANY DISCIPLINARY ACTION. MANY DISCIPLINARY AGENCIES HAVE LITTLE POWER OR FAIL TO PROCEED AGAINST PROMINENT FIRMS OR LAWYERS. IN SOME CASES LAWYERS CONTINUE TO PRACTICE DESPITE DISBARMENT OR ARE REINSTATED AS A MATTER OF COURSE. FURTHER, MANY STATE DISCIPLINARY AGENCIES ARE UNDERSTAFFED. THIS ALMOST COMPLETE FAILURE AT SELF-REGULATION IS AN EMBARRASSMENT TO A PROFESSION WHICH RELIES ON THE INTEGRITY OF ITS MEMBERS. THE ENGLISH CUSTOM OF EXPELLING PROFLIGATE LAWYERS WAS ADOPTED IN PRE-REVOLUTIONARY AMERICA. SINCE 1908, THE AMERICAN BAR ASSOCIATION'S (ABA) CANONS OF ETHICS AND THE 1969 REVISED CODE OF PROFESSIONAL RESPONSIBILITY HAVE BEEN THE MOST WIDELY ADOPTED STANDARDS OF LEGAL CONDUCT. THE STANDARDS, HOWEVER, LACK AN EFFECTIVE ENFORCEMENT MECHANISM. DISCIPLINARY AGENCIES HAVE GENERALLY ASSUMED A SELF-PROTECTIVE STANCE AND UNDERFINANCING, SECRECY OF DISCIPLINARY PROCEEDINGS, RESTRICTING PROCEDURAL PROCESSES, AND CUMBERSOME REVIEW REQUIREMENTS RESULT IN INEFFECTIVE DISCIPLINARY ACTIONS. CONFLICTS OF INTEREST ARE COMMON IN CORPORATE LAW; MOST STATES FAIL TO REQUIRE AUTOMATIC SUSPENSION OF A LAWYER WHO HAS BEEN CONVICTED OF A SERIOUS CRIME. DISCIPLINARY PROCEDURES HAVE BEEN INVOKED FOR RELATIVELY MINOR ETHICAL INFRACTIONS BY ANTIESTABLISHMENT LAWYERS DEFENDING UNPOPULAR CAUSES OR POPULATIONS. POSSIBLE REFORMS INCLUDE ADEQUATE FINANCING OF DISCIPLINARY BODIES, ADEQUATE AND FULL-TIME INVESTIGATIVE MANPOWER, STREAMLINED PROCEDURES, IMPROVED EVIDENTIARY RULES FOR DISCIPLINARY PROCEEDINGS, AND AUTOMATIC SUSPENSION OF CONVICTED FELONS. MORE IMPORTANT THAN THESE IS THE REFORM OF THE ADMINISTRATIVE STRUCTURE. OF FOUR PROPOSED ALTERNATIVES, THE CREATION OF AN AGENCY COMPOSED OF A MINORITY OF LAWYERS AND A MAJORITY OF LAYMEN WHICH IS INDEPENDENT OF STATE AND LOCAL BAR ASSOCIATIONS IS CONSIDERED TO BE THE BEST. PROGRAMS IN MINNESOTA AND MICHIGAN THAT PROVIDE A FUNDING MECHANISM AND CENTRALIZED STAFF AND INCORPORATE CITIZEN PARTICIPATION HAVE GREATLY IMPROVED LEGAL ETHICAL CONDUCT IN THOSE STATES. IT IS SUGGESTED THAT THE SECRECY ACCORDED DISCIPLINARY HEARINGS IN THESE STATES MAY PREVENT MAXIMAL EFFICACY. NOTES ARE PROVIDED. (JAP)