The Case for Less Secrecy in Lawyer Discipline
50 Pages Posted: 12 Jul 2007
This article looks at the problems created by a lawyer discipline process that continues to be conducted mostly in secret. The vast majority of the 125,000 discipline complaints received annually are disposed of without an opportunity for the public to observe the process or the outcome of complaints. Heavy reliance on confidential dispositions - either through private sanctions or diversion programs - keeps most information about lawyer misconduct a secret from the public. As a result, clients are often injured by lawyers who have previously engaged in misconduct, little is known about the extent of recidivism among disciplined lawyers, and there is deep mistrust of the discipline system. This article looks at the history of lawyer discipline and reports that most lawyer discipline occurred in public before the twentieth century, when bar associations became involved in the process. After describing the current discipline system, the article considers the public policy reasons that support confidentiality and concludes that the process should be more transparent. Finally, the article considers how the First Amendment right of access to judicial proceedings and the common law right of access to judicial records might be used to make more lawyer discipline information available to the public.
Keywords: attorney, lawyer, discipline, complaints, confidentiality, first amendment
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