Attorney Discipline Research Articles

Do We Need a Bar Exam... for Experienced Lawyers?

The fierce determination to require a bar exam during the COVID-19 pandemic left quite an impression on new lawyers entering the profession. State bars and state supreme courts made their position clear: the bar exam provides a screening function necessary to safeguard the public. Many disagreed.Even a cursory look at attorney discipline reveals that the lawyers who get into disciplinary trouble are not mostly new lawyers. The lawyers who get into trouble tend to be more experienced lawyers, who have not had any formal or objective tests of their ability to function since their original bar exam pass. The only check on their performance is discipline after harm has been done.Regulators deem the bar exam and character and fitness as necessary tests at the entry gate to the profession. As I contend in this Article, however, evidence supports regular administration of these tests throughout lawyer careers, not just at the beginning. I challenge the profession to consider whether the entirety of the current regime for assuring lawyer competency and quality can be improved to serve the public.

Safeguard or Barrier: An Empirical Examination of Bar Exam Cut Scores

In 2019 more than forty percent of aspiring law school graduates failed the bar exam. Nearly thirty thousand test-takers otherwise qualified to practice law were, given the score threshold required to pass the exam (the “cut score”), lost to the profession. Had the cut score been lower, many would now be lawyers. This exclusion disproportionately affects members of underrepresented and disadvantaged groups who stand to benefit most from entry into the legal profession. A common defense for retaining or raising cut scores is that doing so prevents lawyer malfeasance. But the bar exam is not designed for these purposes. This paper enters this scholarly and regulatory conversation by testing whether states’ bar exam scores predict lawyer misconduct. If they do not, it would remove one argument against lowering bar exam cut scores to promote diversity and growth of the legal profession. Using data comprising states’ bar exam cut scores and disciplinary records from the American Bar Association between 2013 and 2018, we employ statistical modeling to evaluate the relationship between cut scores and attorney discipline. We find no evidence that higher bar exam cut scores produce fewer complaints, charges, or disciplinary actions.

Attorney discipline, the quality of legal systems and economic growth within the United States

The quality of the legal system is of fundamental importance within any society, but the economics of attorney discipline (AD) have not been studied empirically. We rank states by AD resources, complaints, and convictions, and explore the impact of AD on economic growth. The American Bar Association’s annual Survey on Lawyer Discipline (SOLD) reports complaints and charges regarding lawyer misconduct, the caseload per disciplinary attorney, and each state’s budget for attorney discipline. We develop five measures of attorney discipline and a composite measure. We consider low levels of AD to indicate less effective legal systems. Since prior literature finds a relation between corruption and state economic growth, we assess the ability of our AD variables to explain growth, finding that states with lower levels of AD experience slower growth. To our knowledge, no other study has considered the SOLD data to evaluate the quality of attorney discipline, or its impact on growth. One implication is that legal ethics training adds value to society.

Admitting Law Graduates by Bar Examination Versus by a Diploma Privilege: A Comparison of Consumer Protection

State bar associations for decades have justified increasing the rigorousness of their bar examinations as a necessary measure for assuring consumer protection. However, no state has provided data based empirical evidence that increasing the difficulty of a bar examination has a direct correlation with increasing consumer protection (decreasing attorney discipline based upon incompetency and/or ethical violations). This study of the Wisconsin State Bar disciplinary system demonstrates that there is little difference in the protection of the public between admitting law students to the practice of law by a diploma privilege versus requiring passage of a bar examination.

Examining the California Cut Score: An Empirical Analysis of Minimum Competency, Public Protection, Disparate Impact, and National Standards

The selection of a minimum bar exam passing score (“cut score”) shapes the representation of racial and ethnic minorities in the legal profession and the quality of access to justice in the state. This study provides an empirical analysis that shows how higher cut scores create disparities within the attorney licensing system and affects the diversity of new licensees. Analysis of disciplinary statistics from 48 jurisdictions also shows that establishing a high cut score does not result in greater public protection when measured by disciplinary statistics. The study’s first data set included 85,727 examinees who sat for 21 administrations of the CBX from 2009-18 and the race and ethnicity of each examinee. Both historical actual and simulated cut scores were analyzed. The study’s second data set used the ABA discipline data from up to 48 U.S. jurisdictions from 2013-18 and the cut scores in each jurisdiction to examine the relationship between minimum cut scores and rates of attorney discipline. A simulation analysis using actual examinee scores confirmed that selecting a lower cut score would have significantly narrowed the achievement gap between Whites and racial and ethnic minorities and would have increased the number of newly admitted minority attorneys in California. The study also determined that no relationship exists between the selection of a cut score and the number of complaints, formal charges, or disciplinary actions taken against attorneys. The study results indicate that maintaining a high cut score does not result in greater public protection as measured by disciplinary statistics but does result in excluding minorities from admission to the bar and the practice of law at rates disproportionately higher than Whites.

Which States Most Effectively Discipline Attorneys? New Measures of State Corruption Within the United States

The quality of the legal system is of fundamental importance within any society, but the economics of attorney discipline (AD) have not been studied empirically. We rank states by AD resources, complaints, and convictions, and explore the impact of AD on economic growth. The American Bar Association’s annual Survey on Lawyer Discipline (SOLD) reports complaints and charges regarding lawyer misconduct, the caseload per disciplinary attorney, and each state’s budget for attorney discipline. We develop five measures of attorney discipline and a composite measure. We consider low levels of AD to indicate less effective legal systems. Since prior literature finds a relation between corruption and state economic growth, we assess the ability of our AD variables to explain growth, finding that states with lower levels of AD experience slower growth. To our knowledge, no other study has considered the SOLD data to evaluate the quality of attorney discipline, or its impact on growth. One implication is that legal ethics training adds value to society.

Toward a Model for Evaluating Attorney Discipline Across Regions: The Ninth Circuit

This paper builds upon initial findings as a first step in building a model to assess the efficacy of attorney disciplinary systems or processes in individual states or appellate regions. Analysis of reports compiled by state oversight organizations or boards responsible for investigation and disciplinary proceedings due to complaints filed against attorneys allowed for construction of the model. Future iterations of the model will include additional appellate regions. This paper examines the states located in the Ninth CircuitCourt of Appeals.

Attorneys, Document Discovery, and Discipline

Despite the growing use of sanctions and recent amendments to the Federal Rules of Civil Procedure aimed at improving discovery practice, many lawyers continue to play fast and loose with the rules of discovery governing (paper and electronic) documents. Nonetheless, most lawyers never face discipline for their discovery misconduct. This article argues that federal courts could make more effective use of attorney discipline systems to improve document discovery in civil cases. What will be effective depends on why discovery misconduct occurs. There are multiple reasons why lawyers may engage in such misconduct – from ignorance of the rules to intentional, calculated violation of the law. The best explanation for most discovery misconduct, though, is that lawyers do not think they are doing anything wrong. Behavioral legal ethics explains how cognitive bias, situational pressures, and other factors influence attorney behavior in discovery. This article makes the case that federal judges could counteract these factors – and perhaps even harness the power of behavioral science – by consistently educating attorneys about discovery expectations and consistently imposing disciplinary consequences for discovery misconduct. These changes could fundamentally change the way lawyers conduct discovery. While some may argue that consistent imposition of sanctions could have the same impact, the article presents the reasons attorney discipline is superior to sanctions alone. The article opens with descriptions of common problem areas in document discovery in civil litigation in federal court. This discussion explains the governing procedural rules and other law and provides examples of how attorneys regularly violate their legal obligations in each area. This part of the article concludes by discussing the availability of sanctions and the rise in their use in recent years. With that foundation, the next part of the article explains the professional conduct rules pertinent to document discovery practice and the discipline systems that could be used to address misconduct. Thereafter, the article considers the dearth of document discovery-related disciplinary proceedings originating from federal court. A contributing factor to the lack of discipline appears to be the low number of disciplinary referrals. The article considers the reasons attorneys do not report the discovery misconduct of opposing counsel and the somewhat different reasons judges do not make discipline referrals. With this understanding of the lack of discipline and some of the reasons for it, the article argues for reform, explaining the appropriate cases for discipline referrals, how behavioral legal ethics research should influence judges to consistently turn to the discipline system, and the advantages of discipline over sanctions alone. The article closes with a discussion of three different settings in which discovery discipline reform could be achieved: at the judge-level, court-level, and nationally. This discussion considers specific ideas for implementing change in each setting and the reasons some of these avenues may be more effective than others.

The Codification of Professionalism: Can You Sanction Lawyers into Being Nice?

On October 31, 2013, the Florida Supreme Court in The Florida Bar v. Norkin made it clear that “it wants the trend of escalating incivility among lawyers to stop.” With that decision, in which a lawyer was suspended and publicly reprimanded for his behavior, the court urged “Members of the Florida Bar, law professors, and law students should study” this case “as a glaring example of unprofessional behavior.” This article heeds the courts’ directive to do so, but also places it in the context of the movement to enhance professionalism statewide. At the heart of the professionalism movement is a conflict — between the idea that professionalism is an aspirational goal of behavior and that it is one that can be legislated with penalties. When professionalism standards are aspirational, professionalism codes are not a basis of judicially imposed conduct. In contrast, ethical rules governing attorneys do carry sanctioning behavior in an attorney discipline system. Confusion can often lie in the fact that are some aspects of poor professional behavior that cross over into conduct violations governed by the discipline system, and thus are the subject of sanctioning cases. That intersection of behavior, aspirations and rule violations are the focus of this examination into professionalism. In recent years, the Florida Bar has moved to stating that “professionalism is expected” and not aspirational. This shift has been evidenced by revisions of oaths, a proliferation of information disseminated, recent discipline cases, a Supreme Court order establishing local professionalism regulation, and other actions, all of which will be discussed in this article. There exists an emerging message about the importance of professionalism from all aspects of the Bench and Bar. This article examines the status of governing professionalism in Florida. Part II of this article discusses the efforts to define professionalism. Part III gives a brief summary of the attorney discipline system, followed by a review of how some recent cases shaped the Florida Supreme Court’s message on professionalism. Part IV of this article will discuss the broader approach with dealing with professionalism as ordered by the Florida Supreme court statewide, including data and details of the new Local Professionalism Panels, and whether these efforts have been and can be successful, while exploring the nexus between governing professionalism and attorney discipline. Part V suggests what more can be done and draws some conclusions as we move forward.

Developments in Professional Responsibility

This Survey Article examines developments in the Indiana law of professional responsibility from October 1, 2012 to September 30, 2013. A few cases captured attention during the survey period with bizarre fact patterns. Readers may remember (1) the lawyer who wrote a tell-all book about a former client; (2) the lawyer who distributed flyers about “bloodsucking shylocks”; or (3) the law firm partner who sent a fake e-mail to humiliate an associate that spurned his romantic advances. These cases—and several less scandalous examples—remind all lawyers of their ethical obligations to clients, courts, and other lawyers. This Article also discusses trends in attorney discipline that may be linked to newly appointed Indiana Supreme Court Justices and Disciplinary Commission staff.

“Morals and ethics and law, oh my!” – an historical perspective on the aba model rules of professional conduct

ABSTRACT This paper discusses the tensions between moral obligations, ethical rules and legal requirements contained within the American Bar Association Model Rules of Professional Conducts by reviewing the history and evolution of the Model Rules and the conflicting societal purposes served by the Rules regarding client protection, attorney regulation, jurisprudential philosophy and social justice. Equally important is a discussion of the parallel development of attorney discipline.

Professionalism and Protection: Disabled Lawyers and Ethical Practice

Evaluation of attorneys is a difficult task. Law professors, hiring partners, supervising attorneys, judges, and clients all struggle with standards, criteria, and gut instinct. We have to balance the quantity of a lawyer’s work against its quality and thoroughness, her effectiveness “on her feet” against her analytic skills as evidenced in extended writing projects, or her mastery of difficult areas of practice against her ability to relate to clients. Our judgment might be clouded by personality clashes, limited evaluative opportunities, competitive feelings, or bias of one sort or another. These uncertainties all arise in the attorney discipline system. In that system, the profession regulates itself, meaning that practicing attorneys evaluate each other. The Model Rules of Professional Conduct are designed to protect clients and the justice system through the regulation of attorneys primarily by attorneys and not by some outside regulatory force.

A Comparative Study of the Attorney Discipline Systems in Japan and Washington State

A Comparative Study of the Attorney Discipline Systems in Japan and Washington State

Between Cultural Boundaries and Legal Traditions: Ethics in International Commercial Arbitration

This Article addresses the complete lack of ethical regulation of attorneys in international commercial arbitration. After exposing the range of problems caused by this omission, most significantly the possibility that attorneys in the same proceeding can be abiding by different ethical rules, Professor Rogers proposes a methodology for developing a new code of ethics for international arbitration. This methodology focuses on the relationship between morality and role, viewing professional ethical norms as a product of the functional role served by the advocate-lawyer in relation to other actors within a particular legal system. Ethical obligations in international arbitration, under this approach, must be derived from the inter-relational roles assigned to attorneys in that setting. Having outlined the content for a new code of ethics, Professor Rogers proposes an integrated enforcement regime under which the new ethical code would be implemented by major arbitral institutions and appended onto existing bodies of arbitral rules. This regime would make a new code of ethics the product of party agreement and subject to party modification. Professor Rogers also proposes making attorneys contractually liable for violations of these rules and empowering arbitrators to sanction attorneys for misconduct through a new form of arbitral awards called sanction awards. This article has subsequently been published as two separate articles: Fit and Function in Legal Ethics: Developing a Code of Attorney Conduct for International Arbitration, 23 MICH. INT'L L.J. 341 (2002) (identifying the lack of ethical regulation of attorneys in international arbitration and proposing a methodology for developing a new code of conduct). Context and Institutional Structure in Attorney Discipline: Developing an Enforcement Regime for Ethics in International Arbitration, 39 STAN. J. INT'L L. 1 (2002) (proposing integrated enforcement mechanisms through which to enforce new code proposed in Fit and Function).

Attorney Discipline and the California Supreme Court: Transfer of Direct Review to the Courts of Appeal

Attorney Discipline and the California Supreme Court: Transfer of Direct Review to the Courts of Appeal

Law Enforcement, Malfeasance, and Compensation of Enforcers

THE new economic approach to political behavior seeks to develop a positive theory of legislation, in contrast to the normative approach of welfare economics. The new approach asks why certain industries and not others become regulated or have tariffs imposed on imports or why income transfers take the form and direction they do, in contrast to asking which industries should be regulated or have tariffs imposed, or what transfers should be made.

The Optimum Enforcement of Laws

All prescriptions of behavior for individuals require enforcement. Usually the obligation to behave in a prescribed way is entered into voluntarily by explicit or implicit contract. For example, I promise to teach certain classes with designated frequency and to discuss matters which I, and possibly others, believe are relevant to the course titles. By negotiation, and in the event of its failure, by legal action, I and my employer seek to enforce the contract of employment against large departures from the promised behavior. Performance of some kinds of behavior is difficult or impossible to enforce-such as promises to be creative, noble, or steadfast in crisis-and as a result such contractual promises are either not made or enforced only when there is an uncontroversially flagrant violation. The influence upon contract, and upon economic organization generally, of the costs of enforcing various kinds of contracts has received virtually no study by economists, despite its immense potential explanatory power. When the prescribed behavior is fixed unilaterally rather than by individual agreement, we have the regulation or law, and enforcement of these unilateral rules is the subject of the present essay. Departures of actual from prescribed behavior are crimes or violations, although one could wish for a less formidable description than "criminal" to describe many of the trifling offenses or the offenses against unjust laws. My primary purpose is to construct a theory of rational enforcement, a theory which owes much to Gary Becker's major article on the subject (1968). In the conclusion the problem of explanation, as distinguished from prescription, will be commented upon.