Bar Discipline: Beyond The Practice Of Law

Disciplinary action by the Bar is a serious matter for lawyers, and it can be a stressful and challenging experience. Disciplinary proceedings are designed to protect the public and the legal system's integrity from harm caused by lawyer misconduct. Disciplinary action can occur even if a lawyer is not currently practising law or is not acting in connection with the violation. Disciplinary sanctions can include suspension, disbarment, or a public reprimand. Disciplinary proceedings can also address issues such as substance abuse or mental health problems, which are common among lawyers. Disciplinary action can be a learning opportunity for lawyers to rebuild and strengthen their practice. Disciplinary processes vary across states, with each state having its own rules and procedures. Disciplinary sanctions can be avoided through alternative resolution methods such as diversion, mediation, and arbitration for minor transgressions. Disciplinary action is a complex issue, and lawyers facing discipline are advised to seek counsel.

Disciplinary sanctions alternatives

Disciplinary sanctions are penalties imposed on an individual for violating a set of rules or guidelines. Disciplinary sanctions can be imposed in a variety of contexts, such as in the legal profession, employment, or academic settings. Here are some alternatives to disciplinary sanctions:

Legal Profession

In the legal profession, disciplinary sanctions are imposed on lawyers who violate professional conduct rules or engage in misconduct. Some alternatives to disciplinary sanctions in this context include:

• Diversion: This involves removing the case from the disciplinary system and placing it in a practice and professionalism program. Diversion is typically offered for minor violations that would otherwise result in a minor misconduct finding or a finding of no probable cause.
• Mediation and Arbitration: These processes allow for the resolution of disputes without disciplinary action. However, failure to comply with mediation or arbitration agreements can result in disciplinary consequences.
• Letters of Advice or Instruction: In cases of technical violations that have not caused harm to clients, a letter of advice or instruction can be issued, providing guidance to the lawyer to prevent future client complaints.
• Medical or Mental Health Evaluation: If there are concerns about a lawyer's mental health or substance abuse issues, the State Disciplinary Board can refer them for an evaluation.

Employment

In an employment context, disciplinary sanctions are imposed by an employer when an employee is found to have engaged in misconduct. Alternatives to formal disciplinary sanctions in this setting include:

• Alternative Discipline Procedures: This involves the employee agreeing to certain conditions, such as improving future conduct, in lieu of an official reprimand or suspension. The employee may also waive their rights to grieve or file a complaint regarding the agreement.
• Letters of Warning: A first written warning or a final written warning can precede more severe disciplinary sanctions, providing employees with an opportunity to correct their behaviour before facing more severe consequences.

Academic

In an academic context, disciplinary sanctions are imposed on students who violate the student code of conduct or engage in behaviour detrimental to the educational environment. Some alternatives to disciplinary sanctions in this setting include:

• Disciplinary Probation: This involves placing restrictions, conditions, or terms on a student's activities for a definite period, providing an opportunity for the student to improve their behaviour before facing more severe sanctions.
• Restriction or Revocation of Privileges: Temporary or permanent loss of privileges can serve as an alternative to other sanctions, such as suspension or expulsion.
• Interim Separation: Temporary separation or restriction from the university or residence halls can be imposed when a student's presence is deemed disruptive or dangerous to others or themselves. This sanction remains in effect until the student is notified in writing or a final determination is made following a hearing.

Disciplinary revocation

The process of disciplinary revocation is initiated by the lawyer who petitions the court to approve the revocation of their license. The petition must state whether the lawyer intends to apply for readmission to the Bar. The Bar then has 60 days to respond, either supporting or opposing the petition.

If the court's judgment permits readmission, the minimum period before a lawyer can seek readmission to the Bar is five years. This period may be extended at the court's discretion. However, if the court's judgment does not allow for readmission, the disciplinary revocation is permanent.

It is important to note that disciplinary revocation is different from suspension, which is a temporary prohibition on a lawyer from practicing law for a specified period, typically ranging from one day to three years. During a suspension, the lawyer is required to wind down their practice within 30 days before the effective date of the suspension.

While disciplinary revocation and disbarment are both serious consequences for lawyer misconduct, they are not the only disciplinary actions available. In some cases, less severe disciplinary actions such as fines, counseling, or temporary suspensions may be imposed, depending on the nature and severity of the infraction.

Disciplinary investigation

In the United States, each state has its own bar association or bar council that is responsible for regulating the legal profession, including disciplinary matters. For example, the State Bar of Georgia, established by the Supreme Court of Georgia in 1964, enforces the Georgia Rules of Professional Conduct and can initiate disciplinary proceedings against lawyers who violate them. Similarly, the State Bar of California handles disciplinary investigations and proceedings for lawyers practicing in that state.

The disciplinary process typically begins with a complaint or report of alleged misconduct. This can come from a client, another lawyer, or any individual with knowledge of the lawyer's actions. Once a complaint is received, an initial review is conducted to determine if there are grounds for further investigation. If the complaint does not appear to violate any professional conduct rules, it may be dismissed, sometimes with guidance provided to the lawyer to prevent future complaints.

If the complaint warrants further investigation, the bar association or disciplinary board will assign an investigator to examine the allegations. This stage of the process is typically confidential to protect the privacy of those involved and to ensure a fair and impartial investigation. The investigation may include interviews with the complainant, the respondent lawyer, and other relevant individuals, as well as a review of relevant documents and evidence.

During the investigation, the lawyer under scrutiny is expected to cooperate fully and participate in the process. Failure to do so may result in separate disciplinary action. If the investigation uncovers evidence of ethical violations, the bar association will notify the respondent lawyer and may attempt to settle the case or proceed with disciplinary charges.

In some cases, alternative resolution methods such as mediation, arbitration, or diversion may be offered as alternatives to formal disciplinary sanctions, particularly for minor transgressions. These methods aim to address the issue without the need for formal disciplinary action, provided the lawyer complies with the agreed-upon terms.

If the investigation finds no misconduct or if the lawyer is exonerated during the disciplinary proceedings, the case is closed, and no discipline is imposed. However, if misconduct is established, the disciplinary authority will determine the appropriate sanction, which can range from a letter of admonition, suspension from practice for a specified period, or permanent disbarment.

Disciplinary action

The disciplinary process is designed to protect the public from harm caused by a lawyer's misconduct and to maintain the integrity of the legal system. It also aims to educate others to prevent future misconduct within the profession. Disciplinary action can be taken against lawyers for various reasons, including unethical behaviour, violation of Bar rules, substance abuse or mental health issues, and failure to comply with mediation or arbitration agreements.

In the United States, each state has its own bar association and disciplinary procedures. For example, the State Bar of Georgia, established by the Supreme Court of Georgia in 1964, enforces the Georgia Rules of Professional Conduct for lawyers practising in the state. These rules cover lawyers' professional dealings and, in some cases, their personal conduct if convicted of a crime. Similarly, California has specific definitions of "practising law" and penalties for unauthorized practice.

Lawyers facing disciplinary action often experience stress and negative emotions, which can hinder their ability to address the root causes of their sanctionable conduct. Some lawyers may struggle with substance abuse or mental health issues, which can impact their practice and lead to disciplinary proceedings. Seeking counsel or representation during the disciplinary process is advised, especially for lawyers facing a second action.

To recover from disciplinary action and build a stronger law practice, lawyers must objectively assess the investigation's findings and implement necessary changes. This may include seeking professional help for substance abuse or mental health issues, improving organization and administrative tasks, and delegating certain responsibilities to support staff. Disciplinary action, when approached constructively, can ultimately strengthen a lawyer's practice and help prevent future misconduct.

Disciplinary proceedings

The disciplinary process can be initiated by a complaint from a former client, news about a lawyer's conduct, or a referral by another professional. The Office of Chief Disciplinary Counsel (OCDC) or a similar body then determines whether the complaint warrants further investigation. If the OCDC finds that there is no probable cause to believe a violation has occurred, the case is dismissed, and records are destroyed after a year.

If the OCDC finds probable cause, an admonition may be issued, which becomes public if accepted by the lawyer. The disciplinary action can range from a letter of admonition to more severe sanctions such as suspension or disbarment. Suspension prohibits a lawyer from practicing law for a specified period, typically ranging from one day to five years, and requires the lawyer to wind down their practice within 30 days before the effective date of the suspension. Disbarment is a more severe sanction that revokes a lawyer's license to practice law, and the minimum period before seeking readmission to the Bar is five years.

In some cases, alternative resolution methods such as diversion, mediation, or arbitration may be utilized for minor transgressions instead of formal disciplinary sanctions. These methods are not considered discipline if successfully completed. Lawyers facing disciplinary proceedings can seek legal representation to protect their interests and achieve the best outcome.

Frequently asked questions