Testimony Before the New York Commission on Statewide Attorney Discipline

This afternoon I appeared at a hearing in Buffalo held by the New York Commission on Statewide Attorney Discipline.

Chief Judge Jonathan Lippman created the Commission on Statewide Attorney Discipline to conduct a comprehensive review of the state’s attorney disciplinary system to determine what is working well and what can work better, and offer recommendations to enhance the efficiency and effectiveness of New York’s attorney discipline process.
Among the issues to be studied by the Commission are whether New York’s departmental-based system leads to regional disparities in the implementation of discipline; if conversion to a statewide system is desirable; and how to achieve dispositions more quickly in an effort to provide much-needed closure to both clients and attorneys.

Here is a slightly edited version of my written testimony.

Chief Judge Lippman created this commission to review the system of attorney discipline in New York. This is an important task, and it brings much-needed attention to the practices and values of the legal profession. However, my experience teaching legal ethics and professional responsibility reveals a divergence between the disciplinary system in New York and how legal ethics is taught in law schools. Legal ethics casebooks pay little or no attention to the process of attorney discipline or to questions regarding disciplinary sanctions. No casebook with which I am familiar devotes more than a page or two to how attorney disciplinary systems work; a few mention the ABA Model Rules for Lawyer Disciplinary Enforcement (2002). Most casebooks I have examined mention the ABA Standards for Imposing Lawyer Sanctions (1992), but none address more than a few paragraphs to the discussion of disciplinary sanctions, how sanctions serve the different functions of punishment and deterrence, and how different sanctions are calculated.

There are several possible reasons for this neglect. For one, discussion of sanctions means that there has already been an ethical failure. Legal ethics courses generally aim to teach law students, at minimum, how to avoid disciplinary sanctions by understanding the ethical rules and applying them correctly to resolve difficult ethical problems. Disciplinary sanctions come after the ethical violation has already occurred. Discipline means that there has been a failure of ethical behavior. Legal ethics teaching hopes to prevent those failures. Casebook authors may fear that extensive treatment of sanctions amounts to suggesting that law students are likely to fail in their ethical responsibilities.

However, another reason for neglecting disciplinary sanctions in legal ethics courses may be a concern that teaching students about sanctions may contribute to disrespect for the disciplinary process and disregard of the ethical rules. Despite the explicit guidance of the Rules of Professional Conduct, what the bar and the courts choose to sanction, and what sanctions are imposed, may say more than the rules do about the real values of the profession.[1]

The Preface to the ABA Standards for Imposing Lawyer Sanctions (2002) states that the function of standards for disciplinary sanctions is deterrence.

For lawyer discipline to be truly effective, sanctions must be based on clearly developed standards. Inappropriate sanctions can undermine the goals of lawyer discipline: sanctions which are too lenient fail to adequately deter misconduct and thus lower public confidence in the profession; sanctions which are too onerous may impair confidence in the system and deter lawyers from reporting ethical violations on the part of other lawyers. Inconsistent sanctions, either within a jurisdiction or among jurisdictions, cast doubt on the efficiency and the basic fairness of all disciplinary systems.[2]

The New York Court of Appeals in Levy v. Ass’n of the Bar of the City of N.Y. agreed that deterrence, not punishment, is the principle driving disciplinary sanctions.

The proper frame of reference, of course, is the protection of the public interest, for while a disciplinary proceeding has aspects of the imposition of punishment on the attorney charged, its primary focus must be on protection of the public. Our duty in these circumstances is to impose discipline, not as punishment, but to protect the public in its reliance upon the presumed integrity and responsibility of lawyers.[3]

Whether one views deterrence or punishment as the function of sanctions, the nature of the sanctions imposed and the process by which they are imposed are important in signaling collective values. From an instrumental view, “behavior is motivated by rewards and punishments in the external environment.”[4] Under this theory, a disciplinary system of disciplinary aims to “alter[] citizens’ behavior by . . . delivering or threatening to deliver sanctions.”[5] Such a view of disciplinary sanctions would presume that especially severe ethical violations should be met with severe sanctions such as suspension or disbarment. Less egregious violations, or violations in situations where there are significant mitigating factors, should be met with less serious sanctions such as censure. However, as Professor Gillers has demonstrated,[6] there are significant variances in the degree of sanction imposed for the same type of violation among the four judicial departments. From a purely instrumental perspective, such variances are problematic because they fail to assure that severe violations will be met severely.

On the other hand, according to the procedural justice theory developed by Yale Law Professor Tom R. Tyler, people obey the law when they view it as having legitimate authority. The basis of legitimacy is procedural justice. “Legitimacy is linked to the justice of the procedures by which the police and courts implement the law.”[7] If authorities “act in ways that [are perceived] as procedurally just, their rules are viewed as more legitimate, and are more likely to be obeyed.”[8] According to this theory, it is may be less important that sanctions be harsh than that they be perceived as fair and consistent.

Under either theory—an instrumental view of punishment and deterrence, or a procedural justice theory—sanctions are significant. How disciplinary authorities respond to ethical violations exposes the real values held by the profession and by the court. Deterrence is ineffective where the disciplinary process is slow and some disciplinary committees treat violations with greater leniency than others. Procedural justice is absent where sanctions are perceived as arbitrary.

The New York Rules of Professional Conduct provide guidance in determining what kinds of actions by lawyers are acceptable and laudatory, and what actions are unacceptable and worthy of condemnation. Such rules should help lawyers make choices to resolve difficult questions of professional responsibility. When the sanctions are arbitrary and inconsistent, however, the sanctions may tell a different story than that told by the rules. The sanctions imposed by the disciplinary committees and the four departments of the Appellate Division tell us what the rules really mean.

Until recently, disciplinary sanctions in New York were rarely published. The Court’s recent mandate that attorney disciplinary records be publicly searchable is a step in the right direction. This greater transparency may, however, have the undesired result of making even more visible the arbitrary nature of the disciplinary process.

Legal ethics teachers differ on whether we should teach values, or should focus on what Judith Maute calls “safe lawyering,” or “the law of lawyering.”[9] However, even teaching “safe lawyering” necessarily teaches the bar and the court’s implicit values. Although students, like practitioners, may have little direct exposure to disciplinary actions, they pick up on the messages sent by disciplinary enforcement—or lack thereof—indirectly.

Although lawyers may not be familiar with the details of all discipline cases, some decisions are published, others are abstracted in local legal newspapers and bar magazines, and still others become the subject of gossip within the profession. Lawyers thus form impressions about whether, how often, and in what types of cases disciplinary agencies pursue sanctions. These impressions may have a substantial influence on how lawyers respond to or respect particular rules.[10]

Law students may be particularly susceptible to the undermining effect of a seemingly arbitrary disciplinary system. Students, especially in legal ethics and professional responsibility, want to know “the answer.” The Multistate Professional Responsibility Exam reinforces the view that there should be clear right and wrong answers, in legal ethics if in no other field. Law students, if they look beyond the immediate pressures of the MPRE, want to know what they must do to avoid, or minimize, disciplinary sanctions in practice.

Inconsistent and arbitrary sanctions send a message, and it is not a message of deterrence, or even a message of procedural justice: it is a message that the profession does not take legal ethics seriously. Lack of standards teaches that the rules themselves are arbitrary; that the real question is not, “what are my ethical duties,” but “what can I get away with?”

The arbitrary nature of disciplinary sanctions when teaching legal ethics based on the ABA Model Rules is magnified when we turn our attention to the disciplinary system in New York. A fragmented attorney disciplinary system that imposes different standards on lawyers based on whether their offices are downstate, upstate, or in Western New York raises questions as to why they are treated differently. University of San Diego law professor David McGowan notes that “[o]ne of the hardest things to teach students is how to deal with the sometimes significant variation in judicial reactions to similar conduct. . . . ‘Pay close attention to custom’ is helpful, and an obvious point, but I do find that students throw up their hands and tend toward nihilism when they perceive how much variation they will face.  Teaching realism without nihilism is important but tough.”[11]

Differences between sanctioning standards between states are troubling but manageable. For law students preparing to practice in New York, however, wide disparities in sanctions for the same violations depending on which part of the state one practices in may lead to a nihilistic attitude toward the very idea of ethical duties. New York’s system of disciplinary sanctions should be one worthy of respect.

[1] “Individuals look to others to figure out how to behave and to understand the relevant social norms in a situation, particularly in ambiguous circumstances. They may conform their own behavior to the behavior of others; they learn vicariously through the experiences, rewards, and punishments of others; and they engage in social comparison processes.” Jennifer K. Robbennolt, Behavioral Ethics Meets Legal Ethics, 11 Ann. Rev. Law & Soc. Sci. 6.1, 6.6 (2015).

[2] “Preface,” ABA Standards for Imposing Lawyer Sanctions (2002).

[3] Levy v. Ass’n of the Bar of N.Y., 333 N.E.2d 350, 352 (N.Y. 1975) (internal quotation marks omitted).

[4] Tom Tyler, Why People Obey the Law 21 (1990).

[5] Id.

[6] Stephen Gillers, Lowering the Bar: How Lawyer Discipline in New York Fails to Protect the Public, 17 Legis. & Pub. Pol’y 485 (2014).

[7] Tyler, supra note 4, at 273.

[8] Id. at 274.

[9] Judith Maute, Remarks at the W.M. Keck Foundation Forum on the Teaching of Legal Ethics (Mar. 22, 1996), quoted in Lisa Lerman, Teaching Moral Perception and Moral Judgment in Legal Ethics Courses: A Dialogue About Goals, 39 Wm. & Mary L. Rev. 457, 461(1998).

[10] Fred C. Zacharias, The Purpose of Lawyer Discipline, 45 Wm. & Mary L. Rev. 675, 739 (2003) [“when rule violations that are visible or well-known go unsanctioned, such failure to prosecute undermines the professional standard as a credible threat. It encourages other lawyers to violate the particular standard or the codes as a whole” (citations omitted)]; id. at 727, n. 191 [“For example, the deterrent effect of a particular sanction may depend as much on how frequently or automatically the targets perceive that punishment is imposed as on the severity of the punishment”].

[11] David McGowan, Realism Without Nihilism–An Example From a Sanctions Order for Deposition Objections, Legal Ethics F. (Aug. 1, 2014, 1:33 PM), http://www.legalethicsforum.com/blog/2014/08/realism-without-nihilism-an-example-from-a-sanctions-order-for-deposition-objections.html.

Never Let a Crisis Go to Waste: Teaching in Law Schools Today

Here are some brief comments I made today at a UB seminar on Teaching and Learning in the Classroom of the Future:

I’m not at all confident about predicting the future. It’s hard enough just seeing clearly what’s going on around us right now, especially when you’re operating at a high level of generality as we have been doing thus far. So what I’m going to do today is try to report to you on what’s going on in the discipline I’m familiar with: the study and practice of law.
Law schools have been slow to adopt technology. In some ways this is surprising: law was one of the first disciplines to have its corpus of fulltext research sources readily available online. LexisNexis launched in 1973, offering full text of all Ohio and New York cases. By 1980 it included full text collections of all U.S. federal and state cases. Now LexisNexis and WESTLAW, which started a few years after LexisNexis, include virtually all the information sources a lawyer needs to do his or her research, as well as a variety of litigation and law office management tools. So online text resources have been an integral part of both law practice, and the study of law, for over 30 years.
Beyond the use of fulltext research tools, however, law schools seem to have lagged behind our counterparts in undergraduate and K-12 education. In O’Brian Hall, many of our classrooms still have chalkboards, although they now also have computer projectors and Elmo visual presenters, and faculty are increasingly using them.
I think there are a couple of reasons for this. For one, law tends to be a somewhat conservative profession, in the sense that it tends to resist innovation. Law is built on precedent, and I think that years of training and practice in looking to how things have been done previously has to have some influence on how lawyers make choices outside of the classroom. Also, lawyers by nature and by training are pessimists. It’s our job to think of all the ways things can go wrong, and to take precautions against risk. Lawyers are risk-avoiders by nature and by nurture. That’s one of the reasons creative and entrepreneurial types don’t like lawyers: our job is to say “no, you can’t do that, and here’s why.”
In addition, my sense is that law students tend to be less technology-oriented than “digital natives” are generally assumed to be. Professor Gradel noted this morning that the research on learning styles has been at least partially debunked. However, I think some self-selection takes place among students who choose to go to law school. Law probably tends to attract and retain students who are linear thinkers, and who are comfortable with text. Yes, they all have smartphones and laptops and Kindles and iPads, but they are not, unlike Professor Gradel young learners, natural integrators. They seem to tend to compartmentalize, and many of them keep their online activities separate from their student/professional selves.
Moreover, universities—especially research universities—generally do not reward faculty who devote their time and efforts to improving pedagogy. As rankings and scholarly reputation become increasingly important in competing for scarce resources, teaching often takes a back seat.
So law schools tend to be slow to adopt new teaching technologies. Many law professors ban laptops in class, for a variety of reasons: students get distracted and claim they are effective multitaskers; they tend to transcribe rather than listening, thinking, and participating in class; and facing a wall of students hiding behind laptops is disheartening.
I tried banning laptops in my large classes last semester, but I didn’t feel that it made any discernable difference in the quality of classroom discussion, so this semester I went back to permitting them. I use KeyNote, the Mac alternative to PowerPoint, mostly for displaying images or textual headings as a sort of way-finding tool to help students orient to where we are in the class. I also have my classes audio recorded, so students who missed can listen at their own pace and, hopefully, participate more actively in class.
However, some of you may have heard some talk of a crisis in legal education. Fewer students are applying to law schools, and everyone is worried about our graduates finding jobs and paying off their student loans. Law schools are being forced to innovate in order to compete.
There has been some interest in “flipping the classroom.” I’m skeptical about this; the traditional Socratic method, where students read cases outside of class and teachers push them to analyze and respond to questions and hypotheticals in class, already flips the classroom—if students do the work, and if professors demand it of them. I haven’t seen evidence that students are more interested in viewing video lectures than they are in reading course materials.
There have been some experiments with distance and online learning in law schools, but those schools that are interested in online learning are limited by ABA accreditation standards that restrict the use of distance learning to no more than 15 hours toward the 64 credit hours required for graduation
However, there is movement to change the way we do things, much of it coming from outside the university. National and regional accrediting groups increasingly demand measurable assessment of learning. New ABA Law School Accreditation standards require that law schools establish “learning outcomes.”
In the area of technology, change is coming as well. ABA Ethics Rules on Competence (Model Rule 1.1, Comment [8]) require that “[t]o maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology.” Just this week I’m talking to my Legal Ethics students about using the Blackboard SafeAssign feature to turn in their weekly assignments; if they have difficulty using an online submission tool, it’s their responsibility to work it out. I’m going to remind them that most courts now require online submission of all documents, and it’s not acceptable for a lawyer to email a brief to the judge and say “I couldn’t get it to work, I hope this is OK.”
So law schools are starting to be more open to innovation in teaching. A thousand flowers are blooming. Of course, many of those “flowers” are pet projects that are brought forth every time there’s an opportunity, and everybody thinks their pet project is the key to the future of legal education. But the upside is that law schools are now less likely to dismiss new ideas, and there is real room for creative change in law schools now and in the future.

Law School Abhors a Vacuum

Nicole Black’s latest piece has useful and important things to say about law practice and the state of legal education.

In recent months, because of a number of professional endeavors, I’ve had the opportunity to engage with members of legal academia along with current law students and recent graduates. My overarching impression of these encounters is that law schools aren’t sufficiently preparing law students for 21st century law practice. This is especially so when it comes to technology. In fact, I would go so far as to say that the vast majority of law schools are educating their students in a technology vacuum.

She taps a rich vein here, but the resistance to teaching technology in law schools goes even deeper than she realizes.

Certainly “many law school deans readily acknowledge the impact of technology on the practice of law and the environment in which their graduates will be practicing,” but most deans have no idea what that means or what the practice of law is like for most lawyers. Deans don’t spend their time socializing with the struggling solo practitioners and small firm lawyers who stand to gain so much from using technology effectively; they socialize with partners in big law firms with deep donor pockets. If those lawyers have any contact with technology at all, it’s because they have large technology departments to do everything for them. Same with deans.

“First, there is a staunch resistance by many tenured faculty members to alter their curriculum. Because they are tenured they are immune from pressure to change with the times and are perfectly content to continue teaching as they always have.” Also, most tenured faculty don’t see that technology has any real relevance to their teaching or the law. A law professor is one who uses Powerpoint in class is seen as technologically sophisticated, and they rarely do so on their own–an alarming number of them rely on assistants or IT staff to make their Powerpoints for them.

To the limited extent there is a general agreement that law schools need to change, most law professors see this as an opportunity to implement the same changes they’ve always wanted. Some faculty argue for more closely aligning legal education with the practice of law, while others just as strongly argue for even further estrangement from practice and closer alignment with the scholarly goals of universities. Just this morning University of Maryland Professor Paula Monopoli wrote about this in The Boston Globe:

And, indeed, modern law schools are hybrids — professional schools whose mission includes professional identity formation and analytical skill-building. But they are also intellectual centers where faculty are tasked with generating knowledge through legal scholarship. Thus, we are neither fish nor fowl to many of our colleagues in other schools on campus. That wasn’t much of a problem when our surpluses represented subsidies to those other schools, but now the power balance has shifted. We’ve got to respond to the new normal by leaving our silos in larger numbers to forge relationships with scholars and administrators outside the law school. To demonstrate our value and to prove that we fit into the core mission of the university, we need to move toward them in ways that we have historically resisted….

[W]e should rethink the training of legal academics. The vast majority of the legal professoriate has the same training and degree as the practicing bar. Nothing more than a JD is required to teach at an American law school. That three-year curriculum doesn’t include any training in traditional academic research skills like empirical methods. While a full-blown PhD may not be necessary, some additional training in standard research tools like statistical analysis would add intellectual rigor.

Like Rahm Emanuel, law schools never want to let a serious crisis go to waste. What we’re seeing in law schools today is a struggle among long-standing rivalries over the way legal education should be designed and whom it should benefit.


Good news, bad news

I have very mixed feelings about this.

The fact that the USA Freedom Act has achieved such wide-ranging support may be less an indication of its compromises than of a fundamental shift in American views. In July 2013, following the Snowden revelations, the Pew Research Center reported that for the first time since it started asking the question in 2004, more Americans expressed concern that counter-terrorism measures were infringing their civil liberties than worried that the government was not doing enough to keep them safe.

On one hand, it’s encouraging that there may finally be the political will to rein in government surveillance. On the other hand, it’s sad to think about the degree to which that change in public perception is probably due to the fact that there is a black man in the White House.

NYS Board of Law Examiners to Simplify Character and Fitness Examination

The New York State Board of Law Examiners today announced plans to simplify the Character and Fitness investigation process. “The current process, requiring the bar applicant to submit a significant amount of paperwork, is cumbersome and time-consuming, as well as subjective and prone to error and bias,” the BOLE said in a statement. “It also fails to address the competitive pressures that play such an important part in many ethically problematic situations.”

The new Character and Fitness process will feature a series of practical, objective tests to assess the bar applicant’s ability to make ethical decisions in circumstances of limited information. In the elimination round of the test, pairs of bar applicants will stand on a bridge over a trolley track, while a group of retirement-age law professors attempt to repair the track before the arrival of the oncoming trolley. In the judgment and decision-making round, the bar applicant will be stationed near a train switch. On one fork of the tracks will be a group of recent law school graduates (funded on a temporary basis by their law schools), while a fellow bar applicant with a higher law school GPA will be tied to the other track.

“Our analysis of the data shows that, over time, this process will help to resolve the current market imbalance between the number of law grads and available law jobs,” the statement continued. “The outlook for law school admissions is bright, especially for applicants with quick reflexes and good upper body strength.”