Concept
How Discipline Proceeds
Regulation after admission—lawyer discipline
How Discipline Proceeds
Rule 8.4 says what a lawyer may not do; a disciplinary proceeding decides whether a particular lawyer did it. Paragraph (a) makes it misconduct to violate or attempt to violate the Rules of Professional Conduct, to knowingly assist or induce another to do so, or to do so through the acts of another.1 Paragraphs (b) through (d) add a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer in other respects,2 conduct involving dishonesty, fraud, deceit, or misrepresentation,3 and conduct prejudicial to the administration of justice.4
Those definitions do nothing until a process tests them against a particular lawyer’s conduct. In the typical state that process has five parts. A complaint starts it, and an investigation screens it. A hearing before an independent panel decides the charge, under a burden that the bar must carry. An earlier conviction or judgment can supply part of the proof. Rules of confidentiality and immunity govern who may see the case and who is protected for taking part in it. The state’s highest court then reviews the panel’s decision and keeps the last word.
Two interests pull against each other at every part: the public’s need for protection from a lawyer who has proved dangerous, and the lawyer’s need for protection from unfounded charges. The early stages screen and stay confidential, the formal stages give the lawyer notice and a neutral decision-maker, and the final stage rests with the court that retains ultimate responsibility for discipline.
Complaint and Investigation
In the typical state, a central body appointed by the highest court is the entry point to the disciplinary system: a disciplinary board (sometimes called a professional responsibility board) or an officer called disciplinary counsel. It receives complaints, makes an initial evaluation of each, and investigates those that warrant it, although some states still rely on volunteer lawyers to conduct the investigations.5 Anyone may complain. Clients do, as do law firms, judges, and any other entity alleging that a lawyer has violated the ethical standards for practice.6
A case can also start with the lawyer. The Kansas lawyer in In re Gamble sent an electronic message to an unrepresented eighteen-year-old biological mother, designed to embarrass, burden, and create guilt in her mind, and he reported his own misconduct on June 28, 2013.7 The hearing on the formal complaint took place on May 13, 2014, less than eleven months later, a span the hearing panel described as perhaps the shortest between a self-report and a hearing in its memory.8 Even a prompt case, then, takes most of a year.
Once a complaint is filed, the lawyer must answer it. Failing to prepare a response is one of the most common errors of lawyers facing ethics complaints, usually the product of procrastination, embarrassment, or confusion about what to do, and it is costly: failure to respond and cooperate counts as an independent violation even if the lawyer is acquitted of the charge in the complaint.9 The duty to report misconduct “implies a duty by the subject attorney not to frustrate that process,” so a lawyer commits an independent infraction by seeking to dissuade others from filing a report or by discouraging them from cooperating, and some states forbid a lawyer to settle a matter on the condition that the conduct go unreported.10 Obstruction is also conduct prejudicial to the administration of justice under Rule 8.4(d), because the administration of justice includes the disciplinary process designed to ensure the integrity of the legal profession.11 Cooperation can help as well. The process has no “plea bargaining,” but a lawyer is well advised to give disciplinary counsel information that may bring about an acceptable resolution of the complaint.12
Disciplinary counsel reviews each complaint together with the lawyer’s response and typically reports to a disciplinary board. Counsel or the board may then dismiss the complaint, giving notice to both the lawyer and the complainant, or direct further investigation.13 When counsel or the board concludes that a more severe sanction is warranted, it files a formal complaint with a hearing authority, which states variously call a grievance commission, hearing committee, hearing panel, or hearing officer.14 The complainant thus starts the process but does not run it. Counsel or the board decides whether to dismiss, investigate, or prosecute.
Hearing and Burden of Proof
The bar carries the burden at a formal hearing, and it must carry it with clear and convincing evidence. The Kansas Supreme Court says in In re Diaz that attorney misconduct must be established by clear and convincing evidence, and in both Diaz and In re Gamble it defines that term as evidence that causes the factfinder to believe that the truth of the facts asserted is highly probable.16
That standard sits between two familiar ones. A preponderance of the evidence asks only whether a fact is more likely true than not, and proof beyond a reasonable doubt, the criminal standard, demands far more. Evidence that makes a fact highly probable tolerates some doubt but not an even contest.
The burden stays with the bar throughout. Disciplinary counsel or the board prosecutes the complaint, and a prosecuting board must establish the facts behind the charge by the clear and convincing standard, which some states call a “convincing preponderance.”17 The lawyer need not disprove anything, and a charge fails on any element that the evidence leaves thin or evenly divided. On review, when the Kansas Supreme Court assesses whether clear and convincing evidence exists, it does not weigh conflicting evidence, assess witness credibility, or redetermine questions of fact.18
The hearing starts from a formal complaint, which as a matter of due process must be clear enough to inform the lawyer of the charges and to let the lawyer formulate a response.19 A lawyer cannot defend against an accusation that names no rule and no conduct. In Gamble, the lawyer received adequate notice of the formal complaint, filed an answer, and received adequate notice of both the hearing before the panel and the hearing before the Kansas Supreme Court.20
Disciplinary counsel or the board prosecutes the complaint, but the hearing panel or officer serves as an independent and impartial body that rules on the charges.21 The panel makes its recommendation from the evidence presented and from what it observes at the hearing. The Gamble panel called “perhaps the most troubling” the lawyer’s statement that he had not prepared for the hearing. It observed that it sees a respondent only at the hearing, found that nothing about his presentation aided his case, and said that the statement was “somewhat related to the misconduct in this case.”22 A lawyer who wants to keep a license should prepare for the hearing as for a trial.
Gamble shows the burden met. The lawyer filed no exceptions to the panel’s final hearing report, so under Kansas Supreme Court Rule 212(c) and (d) its findings of fact were deemed admitted.23 The court then held that the evidence established, by clear and convincing evidence, violations of Rule 8.4(d), conduct prejudicial to the administration of justice, and of Kansas Rule 8.4(g), conduct adversely reflecting on the lawyer’s fitness to practice law, and it adopted the panel’s legal conclusions.24 Deemed admission reaches the facts. Whether those facts amount to violations remains a question for the court.
Barrett v. Virginia State Bar shows a charge failing under the same burden. A disciplinary board found that a lawyer violated Rule 8.4(b) on the strength of contempt convictions connected with his support obligations, and the reviewing court set that finding aside. The record had two flaws. The Board inferred that the lawyer could pay because he had said that attending court would cost him $1,400 a day, but he explained that the figure was his billable rate of $175 an hour over an eight-hour day, not actual earnings, and that he worked mainly on contingent fees. The Bar offered no evidence that he earned $1,400 a day or what expenses his practice would absorb, and the lawyer supplied the only evidence about his finances, so the court found no basis for the Board’s supposition.25 The Board’s conclusory statements also failed to establish the required link between the contempt convictions and the lawyer’s honesty, trustworthiness, and fitness to practice law.26
Barrett is a decision about a record, not a holding that contempt can never support discipline. The same order affirmed violations of Rules 3.1, 3.4(i), 3.5(e), and, in part, 3.4(j), and remanded for reconsideration of the sanction on those violations.27 A failure of proof on one charge left the others standing.
Taken together, Gamble and Barrett show where the standard does its work. In Gamble no one contested the facts, so each element rested on findings the lawyer had accepted. In Barrett the contested elements rested on inference and assertion, and the lawyer’s unrebutted explanation filled the gap. A question about whether a lawyer can be disciplined therefore asks two things at once: whether the conduct violates a rule, and whether the bar’s evidence proves each element to the required degree. A stem that supplies witnesses, documents, or admissions for each element signals that the burden is met, while a stem that supplies only a label or a suspicion signals that it is not. Students lose points by placing the burden on the lawyer, by applying the criminal standard, or by treating a bare assertion of unfitness as proof.
Prior Convictions as Proof
Rule 8.4(b) defines misconduct as the lawyer’s commission of a criminal act that reflects adversely on honesty, trustworthiness, or fitness, not as a criminal charge or a conviction.29 A disciplinary panel may therefore adjudicate evidence of criminal behavior independent of any prosecution.30 When a criminal court has already decided the question, though, the panel need not decide it again. Issue preclusion lets the earlier result settle the matter: if the conduct behind the charge was the subject of a prior adjudication of criminal guilt, or of certain civil liability decided under a high standard of proof, that adjudication may conclusively establish it for the disciplinary proceeding.31
Three requirements must be met. The question about the lawyer’s conduct must have been resolved in the earlier case; that case must have ended in a final civil judgment or a criminal finding of guilt; and its burden of proof must have been greater than the burden for establishing professional misconduct.32 The first requirement confines the effect to what the earlier case actually decided, so a conviction for one act says nothing about another. The second keeps an unsettled ruling from ending the argument. The third carries the most weight, because a lawyer who lost under a heavier standard has necessarily lost under a lighter one, while a lawyer who lost under a lighter standard might have won under the heavier one.
A criminal conviction clears the third requirement easily. Guilt must be proved beyond a reasonable doubt, so a lawyer who was convicted of or pleaded guilty to a crime has ordinarily been held to the acts constituting that crime under a stricter test than the disciplinary standard, and those acts are treated as established.33 A state may go further and regard the record of a felony conviction as conclusive evidence to suspend or remove the lawyer from practice.34 The word “ordinarily” matters, because a conviction settles only the acts it adjudicated.
In re Diaz shows both what a conviction settles and what it leaves open. The hearing panel described four crimes of which the Navy lawyer was convicted: wrongfully mailing classified secret information in violation of a lawful general regulation; wrongfully and dishonorably transmitting classified documents to an unauthorized individual; knowingly and willfully communicating classified secret information relating to national defense to a person not entitled to receive it; and knowingly removing classified materials without authority, intending to keep them at an unauthorized location.35 The Judge Advocate General had permanently revoked his certification, which disqualified him from representing members of the Naval Service before any forum in the Department of the Navy.36 The Disciplinary Administrator recommended disbarment based on the convictions and on the conclusions of the Judge Advocate General and the military courts, and the lawyer answered that he had been disciplined enough, an argument about the sanction and not about what he did.37
The convictions still left questions for the panel. It had to decide whether the crimes reflect adversely on the lawyer’s honesty, trustworthiness, or fitness, and it concluded that they reflect adversely on his trustworthiness, so he violated Rule 8.4(b).38 The decision also treats the manner of the crime as aggravating. He cut the printed list into pieces and placed them in a Valentine’s Day card so that the package appeared innocuous, and he mailed the card the day before he left the island to reduce his chance of facing consequences.39 Preclusion bars a lawyer from disputing the central facts previously adjudicated, but it does not bar mitigating evidence that leaves the basic findings intact.40
An earlier civil case is a different matter. Most civil suits are decided by a preponderance of the evidence, which is below the bar’s burden, so a judgment against a lawyer in an ordinary malpractice suit has no preclusive effect in a later disciplinary case. The prosecuting board must instead establish the underlying facts by the clear and convincing standard, or by the “convincing preponderance” standard some states use.41 The picture changes when the civil judgment rested on a demanding standard of proof, such as fraud established by clear and convincing evidence. The lawyer may then be precluded from challenging the fraud at the disciplinary hearing, assuming the other requirements for issue preclusion are met.42
An acquittal does not end the disciplinary case either. Rule 8.4(b) turns on whether the lawyer committed the act, not on whether the lawyer was charged or found guilty, so a verdict of not guilty means only that guilt was not proved beyond a reasonable doubt, and the bar may still try to prove the act by its own lower standard.43
Confidentiality and Immunity
Under the American Bar Association’s Standards for Imposing Lawyer Sanctions, a disciplinary case becomes public when disciplinary counsel presents formal charges after a finding of probable cause for disbarment, suspension, or public reprimand, which is the point at which the hearing panel process begins.45 Before that point, confidentiality protects the lawyer’s reputation when the charge is found groundless or when only minor misconduct is at issue.46
The line falls there because a complaint proves nothing. Anyone may file one, and a public accusation that the agency later dismisses would still follow the lawyer’s name. A finding of probable cause for a serious sanction changes the balance, because someone with authority has concluded that the charge, if proved, could justify disbarment, suspension, or public reprimand, and clients have a stake in knowing that a hearing is under way.
Confidentiality does not outlast the case. In every jurisdiction, if the lawyer becomes the subject of serious disciplinary sanctions, the final decision becomes a matter of public record.47
The system also depends on people who are willing to come forward. To encourage those who perceive misconduct by a lawyer to make a complaint, those involved in the disciplinary process typically receive immunity from civil liability.48 Individuals who file complaints, individuals who testify in disciplinary proceedings, and members and staff of the disciplinary bodies are protected by an evidentiary privilege and by immunity against defamation and other litigation.49
The protection matters most when a complaint fails. A lawyer who has just been cleared has an obvious motive to sue the person who complained, and a would-be reporter who risked a lawsuit might stay silent. The same immunity covers the officials who decide the case, and it precludes lawsuits against disciplinary authorities by disgruntled clients who are dissatisfied with how their complaints against their lawyers were resolved.50
Two mistakes cost points on this topic. One treats confidentiality as covering the whole process, when it covers the early stages and a final decision imposing serious discipline is public. The other assumes that a client unhappy with a dismissal may sue the agency, when the immunity forecloses that suit.
Review by the Highest Court
The highest court keeps the last word on discipline. In nearly every jurisdiction, the hearing panel’s or officer’s decision is subject to further review by the highest court, which “retain[s] ultimate responsibility for all disciplinary matters.”52
Kansas Supreme Court Rule 212(f) shows what that responsibility means: the panel’s recommendation is “advisory only and shall not prevent the Court from imposing sanctions greater or lesser than those recommended.”53 The panel hears the witnesses and proposes a sanction, and the court decides the sanction that takes effect.
In Gamble, the panel unanimously recommended a 60-day suspension. It added that, absent the lawyer’s prior discipline, it might have recommended only a censure published in the Kansas Reports, but this misconduct came a few short months after a previous panel had strongly admonished him, and an overreaching approach and failure to recognize reasonable boundaries linked all three of his disciplinary cases.54 The Supreme Court did not view 60 days as adequate. It relied on the panel’s own findings that the lawyer “attempted to manipulate the biological mother and, as a result, interfered with justice,” that his conduct “amounted to emotional blackmail” of an unrepresented eighteen-year-old who was dealing with a process already “emotionally exhausting,” and that his “bullying tactics directly reflect on [his] fitness to practice law.”55 The court suspended him for six months. A minority would have imposed a longer period, and the court unanimously ordered a reinstatement hearing under Rule 219.56
The disagreement in Gamble concerned the sanction and left the facts alone. The lawyer filed no exceptions, so the panel’s findings of fact were deemed admitted, and the court adopted the panel’s legal conclusions under Rule 8.4(d) and Kansas Rule 8.4(g).57 The court also agreed with the Disciplinary Administrator’s recommendation on the sanction.58 Reasoning from the panel’s own record, it reached a different judgment about what that record warranted. The words “greater or lesser” cut both ways: the authority that raised the sanction in Gamble could equally have lowered it.
The court also controls which issues it decides. At the hearing before the court, the Deputy Disciplinary Administrator urged findings of two further violations, of Rule 4.1(a) (truthfulness in statements to others) and Rule 4.3 (dealing with an unrepresented person), which the panel had not found and no one had briefed. The court acknowledged that the Administrator’s office was not required by court rule to file exceptions to a hearing panel report, but it was reluctant to decide issues without additional briefing when little would change even if it found the additional violations.59 Briefing gives the lawyer notice of a charge and a chance to answer before the court rules, and a ruling that would not change the sanction protects no one. The court tied its reluctance to the fact that little would change, so a case in which an added violation would move the sanction raises a different question.
States differ on how much review the highest court gives. In some, the court has discretionary review, so its decision not to take the case makes the panel’s determination final. In others, the court confirms the adjudicator’s recommendation after receiving briefs, generally without argument and a full judicial opinion. In still others, the court conducts a full review and issues a thorough written decision whenever serious sanctions, particularly disbarment, are recommended.60
A question that describes a panel’s sanction should therefore be read as describing a recommendation, and the sanction that takes effect is the one the highest court adopts, which may be higher or lower. An answer that treats the panel’s number as binding misses the structure, and so does an answer that assumes the court must resolve every violation the Disciplinary Administrator urges.