Our Lawyer Disciplinary System – Is It Again Time for a Change?

In 2011, in response to a lack of uniformity in the way our disciplinary system functioned, the Arizona Supreme Court adopted substantial changes which removed decision-making from the State Bar as to which disciplinary complaints should be pursued and, instead created the Attorney Discipline Probable Cause Committee. In addition, the Court did away with three-member, lawyer hearing panels, which previously decided disciplinary complaints and, substituted in its place, the Office of the Presiding Disciplinary Judge, which heard evidence and decided all disciplinary cases against lawyers.

In 2014, statistics compiled by the American Bar Association’s Center for Professional Responsibility, revealed that Arizona had one of the highest percentage of lawyers disciplined on a per capita basis.  In that year, Arizona received 3,549 complaints and sanctioned 108 lawyers, the third highest among the states.

It is difficult to gauge the degree of dissatisfaction that may exist among members of the bar on the way our current disciplinary system functions for obvious reasons.  Those who are fortunate enough to have never been exposed to it presumably have no complaints. Those who have, are either no longer around, or would rather remain silent because of the humiliation and embarrassment that public exposure of the experience carries for its victims.

Many years ago, in a rare public expression on this subject, a lawyer minced no words in his brief on appeal to the Supreme Court describing his experience with our disciplinary system.

“Attorney discipline in Arizona today is a throwback to the star chamber proceedings of the dark ages.  it is in effect a system where a few powerful members of the bar have turned the practice of law into a money getting trade and have established a trade union to protect themselves by favoritism in private closed door proceedings under which, like cannibals, they select a few weak or helpless members of the profession to publicly sacrifice in order to placate the public and thereby try to prevent the impartial and lawful regulation of the profession under laws enacted by the legislature.”  in the Matter of Wade, 168 Ariz. 412, 425, 814 P.2d 753, 766 (1991).

Since January 2011 when the Arizona Supreme Court’s most recent changes to our disciplinary rules went into effect, many lawyers who have been the subject of disciplinary complaints have voiced similar criticisms of the treatment afforded them under the new system. Attorneys, whose practice consists of representing lawyers in disciplinary matters, now routinely advise their new clients to take any offer extended by the State Bar. They do this, because the current disciplinary system appears to function much like the black holes of outer space -“Once you enter its orbit, nothing escapes, not even light.”

It is generally accepted that anyone who has suffered an injustice at the hands of the State Bar and is willing to publicly discuss it, experiences emotions that may be very similar to the conflicting feelings that female rape victims experience when they are asked to testify against their attackers.  On the one hand, there is a desire to perform one’s civic duty, so that justice can be done.  However, the potential re-exposure, shame and added damage to one’s reputation may induce many to forgo the experience of being violated a second time.  This may also be the case with potential critics of our disciplinary system who have suffered under the system and, may explain the almost deafening silence on this most troublesome subject.

One of the main shortcomings of our present disciplinary system is that, despite the large number of complaints filed by members of the public and, that the primary purpose for having a disciplinary system is to protect the public, the public has almost no participation in the process.  Consequently, under the system as it presently exists, the public has no perception that they are being protected.

Except for the most serious ethical violations (i.e. those involving fraud or dishonesty), the primary focus of lawyer discipline should, in almost all cases, be converted from a system which punishes lawyers for minor, often unintended transgressions, to one designed to produce public satisfaction with our profession. This could easily be accomplished by requiring each of the over 20,000 active members of the State Bar to serve as mediators, on a rotating basis, in a conscientious effort at the outset of a disciplinary case to help resolve complaints against lawyers.

If such a plan were to be adopted, among a mediator’s responsibilities would be to schedule a meeting between the complaining party and the lawyer soon after a charge is filed to work out a satisfactory solution to the problem. If the mediator cannot achieve a satisfactory resolution and, feels that an ethical violation has occurred, only then should the matter be referred to the State Bar for disciplinary action.

Instead of continuing to increase the staff of lawyers in the State Bar’s Lawyer Regulation Office, where present salaries and benefits start at $100,000 per year, the initial evaluation of complaints could be taken over by a panel of three lawyer-members, who could, on a rotating basis, evaluate charges against respondent lawyers.  There are few on the Bar’s present disciplinary staff who have the requisite experience in representing clients in the private practice of law, yet, under the current system, they provide the initial impetus for all disciplinary matters by making the preliminary decision on whether a disciplinary complaint against a lawyer “toiling in the trenches”  has merit, or not.

If ordinary members of the bar assumed responsibility for screening charges, based on the 3,500 complaints received annually, each active, in-state lawyer would be called upon to review no more than one complaint every two (2) years.  Also, a conscientious review of a complaint by a practicing lawyer would be far more likely to produce a sound and responsible result than that produced under the present system.  As an additional benefit, the resulting financial savings from the down-sizing of the staff at the State Bar should permit a substantial corresponding reduction in State Bar dues.

Furthermore, by removing the control that State Bar staff has over disciplinary matters, it removes the State Bar’s ability to use the disciplinary system as a means of suppressing dissent among the membership, an alarming practice which appears to be increasing.  Such practices, have had a chilling effect on the willingness of lawyers to speak out on issues that might offend those at the State Bar in a position to manipulate the disciplinary process for their own personal or political ends.

For disciplinary complaints of a serious nature, the present practice of review and recommendations by the Attorney Discipline Probable Cause Committee and then, an evidentiary hearing before a three-member panel presided over by the Presiding Disciplinary Judge, appears to be a suitable mechanism for resolving these complaints.  However, unlike the present practice in civil proceedings, there is no available procedure, akin to Rule 42(f)of the Arizona Rules of Civil Procedure for obtaining a “peremptory” change of judge.  This is unfortunate because currently there is only one Presiding Disciplinary Judge, who, except in the case of a conflict of interest, presides over almost every evidentiary hearing. Because of the mind-set that such repetition normally brings, there is much danger that the PDJ may develop prejudices against lawyers appearing in his Court.  This could easily effect impartiality and, the adoption of the type of star chamber mentality criticized in Matter of Wade, supra.

If the disciplinary system functioned as it should, the four disciplinary bodies (i.e. the Lawyer Regulation Office, the Attorney Discipline Probable Cause Committee, the Office of the Presiding Disciplinary Judge and the Supreme Court) should be as much concerned with protecting the honor, reputation and due process rights of lawyers against questionable or unfounded charges, as they are in protecting the public.  Unfortunately, this does not always not always appear to be the case.

One of the clearest indications that fairness and due process are frequently unwelcome visitors to our disciplinary system is the curious practice which still exists, of imposing increased sanctions against lawyers who do not show remorse for their conduct at disciplinary hearings.  In disciplinary matters, an expression of remorse is considered a mitigating factor and, conversely, lack of remorse is considered an aggravating factor in determining an appropriate sanction.  In one such disciplinary case, In re Shannon, 179 ariz. 52, 81 (1994), Justice Thomas Zlaket, alone, to his credit, recognized the absurdity of such a practice in a strongly worded dissent:

I fear that today’s opinion sends an erroneous message to those facing the disciplinary process that if they dare to challenge the charges against them, the consequences may be more severe than if they simply confess wrongdoing and pray for mercy.  There is something demoralizing and destructive in such a message, something that violates the very spirit upon which our legal system is premised.”

Our present disciplinary system is essentially an adversary system which results in very few acquittals.  The State Bar points with pride to its statistical accomplishments in this regard, and at the same time, uses these statistics to justify the ever-increasing share of the State Bar’s budget devoted to disciplinary pursuits.

Perhaps the most disturbing aspect of our current disciplinary system is the practice of assessing huge monetary sanctions against lawyers who are the subject of disciplinary complaints. These sanctions, mandated by the Supreme Court and euphemistically referred to as “costs”, can range from a minimum of $1,200 for simple cases, involving relatively minor violations, to as much as $100,000 or more in complex cases involving serious violations.

Furthermore, such sanctions provide strong financial incentives for the State Bar to pursue frivolous complaints against lawyers because of the possibility of producing substantial revenue, which goes into the State Bar’s general fund and is available for such things as annual raises for the disciplinary staff and others at the State Bar. Although it is not widely known, there are presently over 30 State Bar staff members who enjoy combined salaries and benefits exceeding $100,000 per year. These circumstances provide a strong financial incentive for those on the State Bar’s disciplinary staff to pursue groundless or frivolous charges against lawyers and/or to seek unjustified sanctions for minor violations which have the potential to bring in significant revenue for the State Bar’s coffers.

To avoid the possible consequences of an adverse determination and because of the enormous expense of defending oneself against disciplinary charges, together with the considerable amount of time away from one’s practice, lawyers who may be wrongly accused of ethical violations, are almost compelled to “plea-bargain” their honor and reputation by accepting some type of disciplinary sanction rather than risk the loss or suspension of their license, together with incurring the accompanying monetary sanctions.  To off-set such practices, perhaps, consideration should be given to awarding attorney fees to lawyers, if they prevail, as is done in contract actions in civil cases.

If the disciplinary system were perceived by the public as serving its interests perhaps some of its excesses could be justified.  However, because of the public’s lack of participation in the process, and with the increasing number of lawyers sanctioned each year, these circumstances may merely serve to confirm the public’s already firmly entrenched notion that the entire profession lacks a sense of ethics. Meanwhile, individual grievances by clients and other members of the public, seem to them, to go unresolved.

The time may be ripe, once again, to explore some of the dark recesses of our disciplinary system and re-examine the current assumptions concerning how well it is operating.  At a minimum, we must provide fairness to lawyers and far greater participation by  the public in the process, so that some semblance of confidence in our profession is restored.

{Jack Levine is a former Member of The State Bar’s Board of Governors and has served as a Special Agent with the Federal Bureau of Investigation.}

2 Comments on "Our Lawyer Disciplinary System – Is It Again Time for a Change?"

  1. If we are as we should be, a society based on the rule of law, then it seems that in our society Lawyers should be held to the highest standards.

  2. After I initially commented I seem to have clicked on the -Notify me when new comments are added- checkbox and from now on whenever a comment is added I receive four emails with the exact same comment. There has to be a way you can remove me from that service? Thanks!

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