Bar Discipline: What If You Don't Practice Law?

Bar discipline is a complex process that exists to protect the public from harm caused by a lawyer's misconduct and to safeguard the integrity of the legal system. Disciplinary sanctions can be imposed on lawyers for a range of issues, including substance abuse, mental health problems, and unethical behaviour. Disciplinary proceedings can result in a range of consequences, from letters of advice and admonishment to suspension, disbarment, and permanent revocation of a lawyer's license to practice law. Disciplinary processes vary by state, and only a few states allow individuals to take the bar exam without attending law school. This introduction will explore the topic of bar discipline, focusing on the impact of discipline on lawyers' practices and the potential for rehabilitation and improvement.

Disciplinary sanctions and alternatives

Disciplinary sanctions are imposed on lawyers who are found guilty of misconduct or unethical behaviour. The overarching goal of the lawyer disciplinary system is to protect the public from harm resulting from a lawyer's misconduct and to safeguard the legal system's integrity. Disciplinary sanctions can vary from admonishments to suspensions to disbarments.

Admonishments are warnings issued to lawyers by the court, a grievance committee, or the board. A more severe disciplinary sanction is a suspension, which prohibits a lawyer from practising law for a specified period, ranging from one day to three years. During this time, the lawyer must wind down their practice within 30 days before the effective date of the suspension.

The most severe disciplinary sanction is disbarment, which is the permanent revocation of a lawyer's license to practice law. In some cases, the lawyer may be permitted to apply for readmission to the Bar after a minimum period of five years.

In addition to these formal disciplinary sanctions, there are also alternative resolution methods for minor transgressions that do not require discipline. These include diversion, mediation, and arbitration. Diversion removes the case from the disciplinary system and places it in a practice and professional development program. Mediation and arbitration are also options, but both parties must agree to these processes, and failure to comply with the terms can result in disciplinary action.

Ancillary sanctions may also be imposed as a form of restitution or reimbursement for the costs of the proceedings. These can include paying restitution to a client or the Client Security Fund of the State Bar and paying attorney's fees. Probation may be imposed as a sanction in certain cases of disability, with the consent of the respondent.

Disciplinary revocation and readmission

Disciplinary revocation is allowed for a minimum of five years or up to permanent disciplinary revocation. A lawyer may seek disciplinary revocation of admission to The Florida Bar if a disciplinary agency is investigating their conduct. The disciplinary revocation rule replaces the former disciplinary resignation rule, but with added safeguards. Disciplinary revocation is tantamount to disbarment and terminates the lawyer's license and privilege to practice law.

If leave to apply for readmission is permitted by the judgment granting disciplinary revocation, the minimum period of time before a petitioner can seek readmission to the Bar is five years, and the readmission process is the same as for disbarments. The readmission process includes reapplying through the FBBE, meeting strict standards to show rehabilitation, and retaking the bar exam. The lawyer must also establish rehabilitation, fitness to practice, and competence, and may be required to pay the costs of the disciplinary proceedings, to make restitution, and to comply with court orders.

Additionally, as with disbarments, a judgment granting a disciplinary revocation may set forth a longer period than five years before the petitioner can seek readmission to the Bar. If the court's judgment does not permit leave to apply for readmission, then the disciplinary revocation is permanent.

Readmission occurs when a disbarred lawyer is returned to practice. Since the purpose of lawyer discipline is not to punish, readmission may be appropriate; however, the presumption should be against readmission. The court shall review the report filed by the hearing committee or board or any stipulation agreed to by the lawyer and disciplinary counsel. If the court finds that the lawyer has complied with each of the criteria, the court shall reinstate or readmit the lawyer. If the court reinstates or readmits the lawyer, it shall issue a written opinion setting forth the grounds for its decision.

Bar discipline and mental health

The overarching goal of the lawyer disciplinary system is to protect the public from harm resulting from a lawyer's misconduct, as well as to safeguard the legal system's integrity, achieve justice, and educate others to prevent misconduct across the profession. Bar members are expected to uphold the legal profession's ethical standards and can be disciplined for violating certain rules, even if they are not currently practising law.

In the United States, new bar applicants are required to submit an application and undergo a character and fitness investigation before taking the bar exam. This investigation evaluates an applicant's moral character and fitness to practice law. It includes questions about an applicant's disciplinary history and any violations of the law.

Mental health questions are a contentious aspect of the character and fitness investigation. Thirty states and Washington, D.C., include one or more questions about an applicant's mental health status. These questions typically fall into three categories: diagnosis or existence of a condition, treatment, and conservatorship. For example, applicants may be asked if they have any conditions or impairments that affect their ability to practice law competently and professionally.

The presence of mental health questions on bar applications has been criticised for reducing applicants' willingness to seek mental health services, diagnoses, or treatment due to fears of stigma and discrimination. A survey found that 44% of respondents believed they had a better chance of getting admitted to the bar if they concealed mental health problems. This fear of seeking help contributes to a culture of silence and nondisclosure, which is concerning given the high rates of stress, anxiety, and substance abuse in the legal profession.

In 2015, the ABA House of Delegates passed a resolution urging state and territorial bar licensing entities to eliminate questions about mental health history, diagnoses, or treatment from bar admission applications. Instead, they recommended using questions that focus on conduct or behaviour that impairs an applicant's ability to practice law competently and professionally. Twenty-three states do not consider a candidate's mental health status when evaluating their fitness, while nine states adopt the character and fitness questions drafted by the National Conference of Bar Examiners.

Disciplinary investigations

Initiating a Disciplinary Investigation

The disciplinary process typically begins when the bar counsel or the Office of General Counsel receives information or a complaint about alleged attorney misconduct. In some states, like Georgia, the initial inquiry is directed to the Client Assistance Program (CAP), which can resolve issues through mediation or arbitration. If the complaint cannot be resolved through CAP, it proceeds to the next stage of the disciplinary process.

Screening and Investigation

The screening process involves sending the grievance to the respondent lawyer and requesting a response within a specified timeframe, usually 14 days. The response is then shared with the grievant for additional comments or rebuttals. If the grievance presents sufficient merit, the matter proceeds to the next level of investigation with the State Disciplinary Board. The State Disciplinary Board is composed of volunteers appointed by the Supreme Court and the State Bar president, ensuring diversity in various aspects.

Confidentiality

Confidentiality is maintained during the early stages of a disciplinary investigation, even from the Bar's officers and leadership. Unless formal charges are filed in court against the respondent, all disciplinary investigations are confidential and protected from disclosure by state law.

Evidence of Ethical Violations

The State Disciplinary Board investigates the matter by examining individual grievances and serving as a grand jury to determine probable cause. If the investigation uncovers evidence of ethical violations warranting discipline, the State Bar notifies the respondent of its intent to file charges. The respondent has the right to request a confidential Early Neutral Evaluation Conference, where a State Bar Court hearing judge provides an oral evaluation of the facts, charges, and potential disciplinary outcomes.

Sanctions and Disciplinary Actions

If the respondent is found guilty of a disciplinary violation, various sanctions may be imposed. These sanctions include admonishment, suspension, or disbarment. Admonishment can be issued by the court, a grievance committee, or the board, while suspension and disbarment decisions are typically made by the Supreme Court. In some cases, diversion programs or alternative resolution methods may be offered for minor violations instead of formal disciplinary sanctions.

Cooperation and Representation

Throughout the disciplinary investigation, respondents are expected to be responsive, cooperative, and forthcoming. Failing to appropriately respond to bar counsel's requests or participate in the investigative process can result in additional adverse action. Respondents are advised to seek representation by counsel, who can provide valuable assistance in navigating the process and negotiating a resolution.

Disciplinary proceedings and the Supreme Court

Disciplinary proceedings are designed to protect the public from harm resulting from a lawyer's misconduct and to safeguard the legal system's integrity. Disciplinary proceedings and criminal proceedings are distinct in their approach and objectives. While criminal proceedings focus on establishing offences and imposing sentences, disciplinary proceedings centre on determining whether an employee's conduct warrants disciplinary action. The standard of proof, mode of inquiry, and governing rules differ between the two processes. Disciplinary proceedings do not require proof beyond a reasonable doubt but instead rely on a preponderance of probabilities.

In the state of Florida, the Florida Supreme Court issues all sanctions against lawyers found guilty of disciplinary violations, except for admonishments, which can be issued by the court, a grievance committee, or the board. The Florida Bar can also offer alternatives to disciplinary sanctions for minor transgressions, such as diversion, mediation, and arbitration. These methods remove the case from the disciplinary system and focus on practice and professional development.

In Missouri, disciplinary proceedings are governed by the Supreme Court of Missouri and the Office of Chief Disciplinary Counsel (OCDC). If a lawyer's violation of the Rules warrants disbarment, suspension, or reprimand, formal charges and a disciplinary proceeding must take place, typically before a Disciplinary Hearing Panel. The OCDC or Regional Disciplinary Committee investigates the matter, and if probable cause is found, an admonition may be issued. All Missouri Supreme Court records in attorney discipline are open to the public, except for specific confidential records outlined in Rule 5.31.

The Supreme Court of India has established principles for the conduct of disciplinary inquiries, emphasising the distinction between criminal and disciplinary proceedings. The Court has clarified that disciplinary proceedings focus on determining whether an employee's conduct merits action, while criminal proceedings centre on establishing offences and imposing sentences. The standard of proof in disciplinary inquiries is based on a preponderance of probabilities rather than proof beyond a reasonable doubt. The Court has also outlined circumstances in which a petitioner may be disentitled to relief, such as making misstatements or filing false documents.

Frequently asked questions