January 2019Volume 49Number 5PDF icon PDF version (for best printing)

Thoughts on human nature and attorney discipline

Long ago I made an observation (certainly not the first person to do so) and have since frequently expressed it to relatives, colleagues, friends, judicial consumers, and even strangers: We (our species) make the highest and best use of our gray matter when we are rationalizing or excusing our conduct. Without being substantiated by any scientific data, 44 years of anecdotal legal profession experience persuades me that my belief is, in fact, an axiom.

We all realize that the economics of the practice of law has changed dramatically: large law school debt, fewer jobs, increasing office overhead, particularly for support staff and technology, cost conscious clients/consumers, and time demands for mentoring and supervising young attorneys or managing a law office.

My limited experience hearing cases as a member of the ARDC Hearing Board (going on two years), together with reviewing the recommendations of all the other panels hearing cases, leads me to this conclusion: the combination of economic pressures and my “gray matter” maxim is a recipe for potential disaster. If you factor in the substance abuse or addiction which is found in too many disciplinary cases, something bad is almost guaranteed to happen. By no means am I excusing attorney misconduct. Some percentage (I would like to think relatively small) of disciplinary matters simply involve bad actors. Most (I would like to believe) misconduct is explained by some combination of the factors mentioned above, and perhaps other reasons.

Is there a solution to the too common disciplinary themes of “borrowing” from the estate or the client’s settlement funds, over charging or not returning unearned fees, misrepresenting the status of litigation, or failure to communicate with the client?

Our supreme court recognized some time ago that the purpose of mandatory continuing legal education was not just to update attorneys on changes in the law. The result was six hours of required updating in the areas of professionalism, civility, legal ethics, diversity and inclusion, or mental health and substance abuse (these areas have, for the most part, become or acquired aspects of substantive law). Recently the supreme court amended the 6 hour portion of the MCLE requirement to include either an approved year long lawyer-to-lawyer mentoring program or one hour each in the areas of mental health/substance abuse and diversity/inclusion.

The ARDC has been a leader among national bar disciplinary agencies in moving toward resolutions of misconduct matters which involve mental health or substance abuse treatment, improvement of practice management and mentoring or supervision. The supreme court, in its disciplinary orders, has embraced the concept of protecting the public and holding respondents accountable, while allowing attorneys the opportunity to be rehabilitated.

Here are some ideas which are not necessarily a “solution” to the question posed above, but might help the disciplinary process to keep moving in the right direction:

  • Should the online Proactive Management Based Regulation program be required for all newly admitted attorneys and periodically as part of the bi-annual 30-hour requirement for all attorneys?
  • LAP has reported a significant increase in referrals. Does the agency need more funding and more training for sponsors?
  • Should trial courts be encouraged, in substance abuse and mental health dispositions involving attorneys, to make LAP referrals?
  • Should the lawyer-to-lawyer mentoring program, perhaps less than one year in length, be required of all newly admitted attorneys as part of their CLE requirement?

I am relatively certain of two things. First, the supreme court can come up with better ideas than me. Second, both the court and the ARDC are committed to improving the profession and the disciplinary process.

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