Why Lawyers Are Disciplined

Lawyer Discipline and Misconduct

Why Lawyers Are Disciplined

A law license is not a one-time award. The profession keeps its integrity only if it maintains an effective and regularly exercised means of self-regulation, and that means includes removing lawyers whose misconduct has shown them unfit.¹ A profession that cannot police its own ranks risks intervention by the executive or legislative branches.² Discipline is that policing, and it reaches lawyers who already hold a license.

The word self-regulation, though, overstates the case. Lawyers like to say that the profession regulates itself, but state courts adopt the rules, and a lawyer who violates them answers to an official entity that the state judiciary has constituted.³ Lawyers, judges, and law professors help draft the rules; they do not enforce them.⁴ The rules themselves are binding law, not a summary of what decent people would do.⁵

The aim of the system is protective. Disciplinary actions are intended to protect the public in general from the risk of harm that unethical practitioners pose.⁶ Their purpose is not to punish the lawyer, and the Oregon Supreme Court, citing its own earlier decision, says so flatly.⁷ Nor do they compensate any particular client, which is the work of a civil claim.⁸

Three preliminary questions follow. Who holds the power to discipline, and where does that power come from? How does answering to regulators differ from answering to a client in a malpractice suit, when one act can trigger both? And which state's authority reaches a lawyer who works across state lines? The rest of the chapter then turns to what counts as misconduct, how a case proceeds, and what sanctions follow.

Who Disciplines Lawyers

In Connick v. Thompson, the Supreme Court noted what follows when a lawyer breaks the ethical rules: an attorney who violates his or her ethical obligations is subject to professional discipline, including sanctions, suspension, and disbarment.¹⁰ The next question is who imposes those penalties.

The state's own courts hold the power. Rules governing law practice are adopted by state courts, generally the state's highest court; New York is the quirk, where the four appellate divisions of the supreme (trial) court do the job.¹¹ Enforcement runs through official entities that the judiciary constitutes, and their names vary: an Attorney Regulatory Committee in Colorado, an Attorney Registration and Disciplinary Commission in Illinois, an Office of Disciplinary Counsel in Washington.¹² When a question speaks of discipline by the “bar,” the “state bar,” or the “state disciplinary authority,” it means the agency in the jurisdiction with authority to administer the standards for admission to practice and for maintenance of professional competence and integrity.¹³

Those agencies see plenty of complaints that go nowhere. Not every complaint has merit, and the vast majority end in dismissal.¹⁴ Some are facially invalid: they fail to allege what constitutes professional misconduct, lack adequate factual support, or accuse the lawyer of something outside the disciplinary authorities' reach.¹⁵

The state's highest court can fix the sanction itself. In Oregon, for example, the supreme court first weighs the duty violated, the lawyer's mental state, and the actual or potential injury. Those three factors point to a suggested sanction, which the court may impose or modify after examining aggravating and mitigating circumstances and its case law.¹⁶ A later section develops that framework.

The agency enforces the state's adopted code, and that code is not the ABA Model Rules. The Model Rules are a template that state courts may adopt, and the name says as much: until a court adopts them, they are nothing more than suggestions.¹⁷ Rule 8.4(a) shows how the pieces fit. It makes it misconduct to violate or attempt to violate the Rules of Professional Conduct, to knowingly assist or induce another to do so, or to do so through the acts of another.¹⁸ The Rules that count in a disciplinary proceeding are the ones the lawyer's jurisdiction adopted, and they may differ from the Model Rules.¹⁹ The MPRE tests the Model Rules, but a practicing lawyer answers to the code of her admitting jurisdiction, and possibly to the codes of others.²⁰

The Model Rules come in two layers, and only one is the operative text. The black-letter rules state the conditions under which a lawyer is subject to discipline. The comments elaborate on them and, strictly speaking, do not bind a disciplinary authority, although in some cases they matter a great deal.²¹

Discipline Versus Malpractice

One course of conduct can expose a lawyer to two proceedings at once. A lawyer who knowingly represents persons with conflicting interests, for example, may face disciplinary charges and a malpractice claim.²³ Both address departures from professional standards, yet the regimes differ in purpose, prosecutor, procedure, and use of the ethics rules.²⁴ Each of those differences begins with purpose.

Discipline protects the public in general from the risk of harm that unethical practitioners create. A civil suit, by contrast, affords redress to a specific person the lawyer injured, and its remedies, chiefly damages, aim to restore the plaintiff to the pre-tort position.²⁵ The adversary changes with the purpose. A disciplinary case belongs to no single injured person, so a state disciplinary agency brings it through its own counsel, and the affected client serves as a witness who supplies evidence but does not run the case. A malpractice claim belongs to the injured client, who hires a lawyer to pursue it.

Because the proceedings are independent, one can feed the other. A judge presiding over a malpractice case may refer the matter to disciplinary authorities when the evidence suggests the lawyer-defendant violated the disciplinary rules, even if the plaintiff recovers nothing.²⁶ Lawyers who represent parties in malpractice cases may have a similar duty to report, at least after the litigation has concluded.²⁷ A lawyer who defeats a malpractice claim has therefore not necessarily ended the disciplinary question.

The two regimes also use the ethics rules differently. A disciplinary proceeding asks whether the respondent-lawyer violated the jurisdiction's ethics rules, and a violation is itself misconduct.²⁸ In civil actions, courts take different approaches to admitting the disciplinary rules.²⁹ The Rules themselves say they are not designed to be a basis for civil liability, although, because they do establish standards of conduct, a violation may be evidence of breach of the applicable standard of conduct.³⁰ A civil plaintiff may use a violation as evidence, but the violation does not replace the plaintiff's own case.

The difference in purpose also explains why one lapse can support a civil claim and still fall short of discipline. A single honest mistake that costs one client money fits the civil side, because a damages award can restore that client's position. It does not, by itself, show the kind of unethical practice that discipline guards the public against. Florida Bar v. Neale is a standard illustration: an isolated negligent error generally supports a malpractice claim and not discipline. The generalization has limits, because a lapse serious enough to show unfitness can draw a regulatory response too.

Discipline also needs no client loss. Rule 8.4(c) reaches conduct involving dishonesty, fraud, deceit, or misrepresentation,³¹ and its text contains no injury element. A lawyer who engages in that conduct violates the rule even where no client has suffered a compensable loss, so discipline can proceed where no malpractice claim exists.

Exam questions often put both regimes in one fact pattern, and the instinct that costs points is to treat a client's lawsuit, damages award, or lost case as the answer to whether the lawyer is subject to discipline. That question asks only whether the lawyer violated the rules of professional conduct of the licensing jurisdiction.³² Whether the client sued, recovered, or lost money belongs to the malpractice analysis, which a question about civil liability calls for instead.

Disciplinary Jurisdiction

Two states can claim the same lawyer, so the first jurisdictional question is which state's disciplinary authority reaches a lawyer who works across state lines. Model Rule 8.5(a) answers in two parts: a lawyer is subject to discipline in her admitting jurisdiction and in any other jurisdiction in which she provides or offers to provide legal services.³⁴

The first part is the familiar one. The court that grants a license can condition or end it, and a lawyer's work in another state does not erase that authority; the lawyer simply answers to more than one jurisdiction.³⁵

The second part reaches lawyers the state never licensed. As Professor Stephen Gillers observes, the expanded authority that Rule 5.5 confers “comes at a price”: a lawyer who wishes, even on a temporary basis, to provide legal services in the jurisdiction must recognize the jurisdiction's interest in disciplining the lawyer for misconduct in connection with those services.³⁶ The word offers matters as much as provides, because a lawyer who advertises to prospective clients in a state has offered services there before taking a single matter. The logic is deterrence. If a visitor stood beyond the state's reach, a lawyer would have a reason to practice there outside the rules, and the state's clients would be served by the one group its authorities could not discipline.

Jurisdiction over a lawyer is one question; the sanction available against that lawyer is another. A host state has authority over a visiting lawyer, but it may hold no license of that lawyer's to take away. What can it do?

Those responses track what the host state actually gave. It granted a limited permission, so it can withdraw that permission and refuse another, and it can send the question of the license itself to the one state that holds the license.

Exam stems built on this rule tend to test the two halves separately. A lawyer licensed in one state and charged in another invites the instinct that only the home state can act; the right analysis asks whether the lawyer provided or offered legal services in the charging state. A visiting lawyer admitted for one case invites the opposite instinct, that jurisdiction brings every sanction with it; the right analysis asks what the host state has to take away.

Which jurisdiction's substantive rules govern the conduct is a further question, taken up with the choice-of-law rule. For now, a lawyer may face the rules of more than one jurisdiction, and those rules may differ from the Model Rules.³⁷