The purposes of lawyer discipline.

• Author: Zacharias, Fred C.

INTRODUCTION

Courts that have analyzed professional discipline typically have characterized its purpose as "protecting the public." (1) This Article will make two simple points. First, the characterization is simplistic and, as a result, masks a variety of functions that discipline might actually serve. Second, identifying the purposes of discipline more precisely would help rulemakers and disciplinary agencies (2) achieve more consistent, and better, results. (3)

In order to analyze what protecting the public means, it is important to acknowledge four possible orientations that disciplinary agencies might take in imposing sanctions. They might focus on clients and sanctions that serve client interests. They might focus on offending lawyers, in order to determine the lawyers' qualifications to continue practicing. A broad alternative would be to focus on the profession as a whole, to decide which sanctions will best encourage competence and ethical behavior throughout the bar. Finally, the disciplinary agencies might focus on the disciplinary process, in an effort to shore up the impact of professional standards in guiding lawyer behavior.

The results that professional regulators reach will vary, depending on the orientation that they emphasize. Although alternative emphases are justifiable in particular cases, it is important for the regulators to clarify their overall perspective. Differences in approach affect both consistency in judgments and the practical impact of discipline on the public and the bar. In the long run, rulemakers, disciplinary prosecutors, and reviewing courts all need to be able to consult principles of discipline in order to carry out their functions effectively.

Consider, for example, how a disciplinary agency might address theft of client funds by an alcoholic lawyer. (4) Let us accept, for purposes of argument, the factual premises urged by proponents of leniency: (5) alcoholism is a disease; (6) many lawyers suffer from it; (7) and many lawyers will not seek or accept treatment if they expect to be punished for their disability once it becomes public. (8) Let us also assume that a particular lawyer can show some link between his alcoholism and misconduct (9) and that the lawyer subsequently has successfully completed a course of treatment and rehabilitation. (10) How should the disciplinary agency take these considerations into account?

If punishment is the key, the lawyer's alcoholism and rehabilitation are irrelevant. The theft of funds is a serious offense. Specific and general deterrence (11) warrant a severe sanction in order to protect future clients of this and other lawyers. (12) That is largely the approach taken by the criminal law in assessing the intoxication defense. (13)

>From a regulatory perspective, on the other hand, if the lawyer truly is rehabilitated and the cause of his misconduct is eliminated, the disciplinary agency has no basis for finding the lawyer incompetent. Nor is the lawyer likely to commit similar misconduct in the future. (14) Recognizing that rehabilitation will lessen or eliminate discipline may serve to encourage other alcoholic lawyers to seek treatment, which indirectly serves the interests of their future clients and the legal system generally.

As discussed below, there are pros and cons to either emphasis. For the most part, however, courts and disciplinary agencies have used the purported goal of "protecting the public" as a cure-all justification that enables them to avoid serious consideration of the costs and benefits of imposing discipline. Even states that rely upon ABA standards for discipline (15) find themselves implementing guidelines that provide "limitless flexibility" (16) when identifying appropriate sanctions and assigning values to aggravating and mitigating factors. (17) The standards, though they note the multiple purposes of discipline, do little to guide disciplinary regulators in analyzing and choosing Among potentially inconsistent goals. (18)

Part I of this Article distinguishes the theory of professional discipline of lawyers from the theories underlying criminal prosecutions. Part II identifies the various possible stratagems for approaching discipline. Part III analyzes their potential impact by discussing their application to generic types of misconduct. Finally, Part IV discusses the ramifications of this analysis for rulemakers and other regulators. The Article, in sum, attempts to clarify the conflicting considerations in a way that will prompt courts and disciplinary agencies to address the issues more coherently.

1. DISTINCTIONS BETWEEN PROFESSIONAL DISCIPLINE AND CRIMINAL PROSECUTIONS

   Many of the issues this Article addresses have counterparts in criminal law theory. There is a vast literature addressing the purposes of criminal law (19) and the inconsistencies that arise when courts simultaneously attempt to implement the goals of punishment, deterrence, incapacitation of defendants, and rehabilitation. (20) Much of that literature is directed towards identifying one overriding theory of criminal sanctions, (21) but some commentators accept the existence of multiple goals and focus on mitigating the tensions that multiplicity may cause. (22) Professional regulators facing similar issues in the context of lawyer discipline can fruitfully advert to that scholarship.

   The existence of this body of work, however, raises a fair set of preliminary questions for this Article. Is what follows simply a repetition of criminal theory scholarship? More importantly, given the depth of that scholarship, why bother addressing the issues that this Article has identified?

   There are two answers. First, quite simply, the lessons of criminal theory have not penetrated the professional responsibility field. Professional responsibility scholars have not addressed the issues. Disciplinary proceedings occur, for the most part, secretly (23) and without any apparent effort on the part of disciplinary prosecutors to follow policies patterned after any particular theory of sanctions. Disciplinary courts likewise have made little effort to analyze the issues in the terms of the criminal law, preferring instead to treat professional responsibility issues as sui generis (24) and resolvable by resort to the generalized "protect the public" rationale.

   More importantly, although the theories of criminal punishment have much to teach us, the professional responsibility context is different in significant respects. For example, the role of retribution in lawyer discipline is questionable. Unlike most criminal laws, the disciplinary rules typically are established and enforced for reasons other than identifying immoral conduct or actors. (25) Lawyers often violate professional rules not because of any moral failing but simply because of a lack of competence. One reasonable view of discipline, therefore, is that its function is to assure competence rather than to lay blame. When punishment or vengeance are called for, they should be accomplished through parallel criminal or civil proceedings.

   Equally important, disciplinary regulators ordinarily act without the mandates that legislatures provide criminal prosecutors and courts, both regarding the blameworthiness of particular conduct and the range of punishment that is appropriate. (26) This consideration cuts in several directions. On the one hand, courts enforcing criminal laws arguably do not need to be as careful as disciplinary courts in identifying the goals they are implementing, because the legislatures already have set constraints. On the other hand, the absence of legislative guidance may make it more difficult for professional regulators to identify an overriding disciplinary policy. The point, simply, is that good reasons exist for the professional regulators to address the issues from an alternative perspective.

   The bottom line is that, while some of the analysis that follows may sound familiar to practitioners of criminal law theory, this Article will neither reinvent the wheel nor rehash the substance of criminal law scholarship. The following pages develop, in more detail, differences between the professional responsibility and criminal law contexts, to clarify why independent analysis of the issues is appropriate. Subsequent parts of the Article advert to similarities in criminal law only when consideration of the parallels directly furthers the discussion.

   1. Core Distinctions

      Professional discipline of lawyers is a form of administrative regulation. It is a follow-up to lawyer licensing--the mechanism by which the initial grant of a license is reevaluated. (27) Sanctions other than disbarment may be imposed through disciplinary proceedings, but these, with few exceptions, are limited to sanctions that are lesser-included forms of punishment and that are designed to shape the individual lawyer's future conduct. (28) For example, lawyer sanctions include suspension, reprimands, and educational requirements. (29) Fines, restitution, and imaginative penalties, such as entity liability (30) and public service requirements, (31) typically are not within the power of disciplinary agencies to impose. (32)

      These characteristics are consequences of the broad philosophical sense that professional discipline differs from criminal punishment, most notably in the functions it serves. (33) Criminal law purports to set specific standards for moral behavior that the legislature expects to be followed and enforced. (34) Although some professional rules set similar standards--such as rules forbidding illegal conduct by lawyers (35) or theft from clients (36)--others have decidedly different goals. Some professional rules are purely hortatory in nature, sending a signal about general aspirations for lawyer behavior but leaving implementation to lawyer discretion and good will. (37) Other rules are designed to encourage a particular type of client conduct, rather than a particular...