State courts' approach to lawyer admissions and discipline has not changed fundamentally in the past century. Courts still place faith in the idea that "moral character" is a stable trait that reliably predicts whether an individual will be honest in any given situation. Although research in neuroscience, cognitive science, psychiatry, research psychology, and behavioral economics (collectively "cognitive and social science") has influenced prevailing concepts of personality and trustworthiness, courts to date have not considered whether they might change or refine their approach to "moral character" in light of scientific insights. This Article examines whether courts should reevaluate how they decide whether to allow lawyers to return to law practice after suspension or disbarment for impermissibly deceptive conduct. The Article describes courts' traditional approach, discusses some of the relevant scientific literature, and suggests some possible reasons why courts appear not to have considered such scientific insights. The Article concludes with some thoughts about the utility of the role of scientific research in the disciplinary process.
Introduction I. A Century of Professional Discipline: Deviance and Rehabilitation II. The Attorney Disciplinary System: Assumptions, Objectives, and Decision-Making III. Cognitive and Social Science Insights into Lawyer Dishonesty IV. Can Science Improve Judicial Decisions about Reinstatement? V. Why Does the Traditional Approach Persist Without Regard to Potential Social Science Insights? INTRODUCTION
Prior to the conference on Julius Henry Cohen's book, The Law: Business or Profession?, the authors of this Article began a discussion about lawyers who commit serious wrongdoing resulting in suspension or disbarment. Many of those lawyers sought readmission at some later point and we wondered whether those lawyers were demonstrably better people by the time they sought readmission to the practice.
We were particularly interested in those lawyers who engaged in serious deceit: impulsively stealing clients' money, swindling people in investment schemes, or profoundly deceiving clients about fundamental aspects of cases (such as whether a complaint was even filed). We did not focus on lawyers suffering from disabling depression or wrestling with a substance disorder that may have explained their misbehavior, but on those whose deceptive behavior was not readily explicable, perhaps not even to themselves.
Our first inquiry was why lawyers jeopardized their livelihoods by engaging in serious dishonesty. Were these bad-acting lawyers always corrupt, or was their dishonesty anomalous? The research led us to consider whether honesty is a relatively stable personality trait, as many presume, or whether generally honest individuals are capable of serious dishonesty. We also wondered how courts decide whether lawyers suspended or disbarred for dishonest acts are worthy to return to practice. We were not confident that courts had a solid grip on either why people committed such deceptive acts or whether they were reformed. These conversations were the antecedents for this Article, which was prepared in connection with a conference on Julius Henry Cohen's 1916 book, The Law: Business or Profession?
Cohen's book provides a window into how courts, assisted by bar associations, handled misconduct and discipline in the early twentieth century. It turns out that nearly one hundred years later, despite remarkable advances in all aspects of cognitive and social science, courts proceed much the way they did in Cohen's day--they rely on aphorisms and intuition to decide whether lawyers are ethically fit to practice.
In this Article, we examine the process of suspension, disbarment, and readmission in light of some twentieth and twenty-first century scientific knowledge. We begin by looking at professional discipline a century ago, during Cohen's time. Joining the chorus of those who question "character" as immutable and predictable, we then consider more contemporary cases in which courts decide that lawyers are sufficiently rehabilitated and investigate how courts make such decisions. Focusing on the concept of deception, we sketch out some of the insights that cognitive and social sciences offer on the subject. We ask whether science may illuminate the problems of understanding, predicting, and preventing deceptive behavior. Finally, we discuss possible reasons why courts have eschewed help from those outside the legal profession to understand deceptive behavior, choosing instead to carry on as they have done for over a century. Our modest proposal is that in keeping with twenty-first century thought, a useful first step might be to systematically collect and analyze data on a large-scale basis to find out what happens to lawyers who are reinstated after disbarment or suspension.
A CENTURY OF PROFESSIONAL DISCIPLINE: DEVIANCE AND REHABILITATION
Writing almost a century ago from his perspective as a leader of the New York bar, Julius Henry Cohen depicted the attorney disciplinary process as playing a central role in how the legal profession justifies and defines itself. Cohen opened his 1916 book, The Law: Business or Profession?, (1) with a chapter titled "Disbarment," setting forth his view, which he illustrated by describing the attorney disciplinary process in New York City and summarizing cases in which lawyers were sanctioned for misconduct. Cohen touted the collaboration of "the Bench and Bar" in the process. (2)
Cohen envisioned a reciprocal relationship between professionalism and discipline. On the one hand, to maintain the practice of law as a profession, it was essential to have professional regulation. The profession must enunciate high standards of conduct for the public's protection and "purge" itself "of those who fall below the standards." (3) On the other hand, a robust, well-functioning disciplinary process required lawyers' willing participation, which would not be forthcoming absent a sense of commitment to the law as a profession. Cohen warned: "Take away the conception of the practice of law as a profession--make it a business--and at once you destroy the very basis of professional discipline." (4)
Cohen was describing the formal disciplinary process in its infancy, coinciding with the rise of bar associations. (5) State courts had exercised authority to admit lawyers to practice, announced standards of conduct, and disbarred or otherwise sanctioned lawyers for violating those standards. (6) Although courts had limited resources to devote to the disciplinary role, informal regulation within small, homogenous local bars may have helped fill the gap until immigration in the late nineteenth and early twentieth centuries led to the growth of elite urban bars.
Courts began to delegate disciplinary authority to state and local bar associations. For example, New York's intermediate appellate court authorized the Grievance Committee of New York City's Association of the Bar to investigate and prosecute New York City lawyers and conduct disciplinary hearings, subject to that court's review. (7) Participating lawyers volunteered time and bar associations contributed the operating costs. (8) These efforts gave Cohen and others reason to claim pride in the law as a self-regulating profession.
The contemporary disciplinary process directly descended from the one Cohen described and his contemporaries would recognize it. (9) The process still exists to adjudicate claims of lawyer misconduct and impose sanctions ranging from censure or suspension to disbarment for misconduct. The objective remains largely to purge the profession of those who cannot be trusted to uphold the professional standards in the future. The need for good decisions about misbehaving lawyers has never been more important. Complaints against lawyers for ethical violations continue unabated and surveys among lawyers themselves suggest perhaps a greater willingness to engage in forms of deceptive practice. (10)
Although the organized bar's role has been eliminated in many states, lawyers still dominate the process. In New York, for example, disciplinary prosecutions are now conducted by full-time staff lawyers functioning as an arm of the state intermediate appellate court, but volunteer lawyers still review evidence and make recommendations. In the federal district courts of New York, the bar takes a greater role: volunteer lawyers are appointed on an ad hoc basis to serve as disciplinary prosecutors. Lawyers do not have exclusive authority to regulate themselves, but they may still stake a claim to be members of a substantially "self-regulating" profession. (11)
One might expect that over the period ranging from Cohen's time to the present, courts would have developed an increasingly sophisticated understanding of lawyer deviance, not only from deciding many cases, but from following developments outside the field of attorney discipline. But in fact, how courts decide which sanctioned lawyers should be allowed to resume the practice of law has not significantly evolved over the past century.
When deciding whether to admit applicants to the bar, state judiciaries insist that successful applicants must possess good moral character, and the question of character returns to center stage once a suspended or disbarred lawyer seeks to return to practice. In this respect, courts' decision-making about discipline and reinstatement remains virtually unchanged from their approach a century ago during the time of Julius Henry Cohen. Focusing on fairly predictable factors such as remorse and claims of rehabilitation, judges make seemingly intuitive decisions about whether a candidate's "good character" has been restored. Courts assume that a lawyer's "character" determines and predicts her behavior in both her personal and professional life; that a lawyer's character is relatively constant but that some who engage in misconduct...