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.

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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.