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Home Page Official Publication of the State Bar of California January2006
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A hard look at discipline

By Clyde Small

Clyde Small

In the world of attorney discipline, as well as the criminal and juvenile justice systems, there is no role for vindictiveness. It is not only cruel and unjust but wasteful to terminate the ability of a professional to serve society. A second chance should be given where this can safely be done.

Nevertheless, administering the State Bar Rules of Professional Conduct is predominantly a zero-sum game. One becomes over-preoccupied with mercy and “rehabilitation” only at the expense of facilitating further harm to the public and to the regard in which the bar and the court system are held. My experience is that our priorities have deformed. The threshold question is, what is the purpose of licensing? Is it to protect the public and the courts from predatory and irresponsible persons acting as attorneys, or is it to provide a protected and subsidized environment for the latter?

I have participated in the discipline system in several capacities and observed its effects over an extended period. Members of the   Disciplinary Board were all experienced, practicing lawyers. They knew that it is entirely possible to complete a career without any charges of violating the rules of conduct. They were also well aware of the impact of attorney misconduct which is harsh, which is not relieved by probation or additional chances and which is often beyond cure.

It seems to me the forgiveness concept has hypertrophied in attorney discipline, as it has in criminal and juvenile justice. The same clich├ęs are sold over and over.  Attorney discipline is becoming much the same, and is less public.

The client, by contrast, gets no due process from the predator who betrays his trust. He gets no advance notice of the intended offense and no reconsideration, appeal or stay of the predator’s decision to invade his rights.

If I am correct that the reason for licensing law is, by a huge preponderance, to protect the public, the bar has no more just authority to shift the emphasis to indulgence and forgiveness than the Federal Aviation Agency has to let a person with a material impairment of training or character pilot a passenger aircraft — especially when his shortcoming has already caused one or more crashes. The medical profession disgraced itself for years with the “conspiracy of silence.” A great church, which has elevated civilization for millennia, has recently paid a high price for sheltering pedophiliac priests while they continued to repeat their offenses against young children. Does the bar rally want to take on this coloration? It was, after all, lawyers who brought these excesses to light, registering indignation.

Of course there are success stories, but the question must be, what are the odds? What is the cost-benefit ratio? The bar is in a position to present these questions in a fair perspective, based upon objective research. Data should drive this process, and it should be supervised by experienced persons who are willing to take all interests into account and quantify them. Some issues that might be examined are:

  • Discipline cases as a percentage of bar membership;
  • How many offenders repeat — stated differently, how often leniency results in further harm to clients and the reputation of the system;
  • Some gauge of the magnitude of the aggregate damage, as a result of recidivism, to clients, the court system and the respect in which the bar is held; and
  • A factual basis for the concept that any gain from misconduct is to be realized by the offender, but the cost of it must be paid in whole or in part (including the cost of the discipline system) by attorneys who meet the standard of practice imposed by the rules. The bar owes a debt of gratitude to former board of governors member Wendy Borcherdt for presenting this issue. I regret that the bar itself did not take this initiative.
  • Clyde Small is a retired attorney living in Red Bluff. He was a sole practitioner specializing in trial and appellate law, and served as a Shasta County Superior Court judge for five years.
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