“Proposed plan would keep lawyer misconduct secret”

by Walter Olson on July 30, 2011

“Under the proposed rule change [at the Iowa Supreme Court], lawyers suspended for stealing from clients, drug and alcohol problems, and neglecting important cases could hide what they did and resume practice without clients ever knowing what ethical violations they committed.” [Des Moines Register, more]

{ 8 comments }

1 John Burgess 07.30.11 at 4:43 pm

Sure, why not? Then we can have secret trials. Maybe call them something snappy… hmmm… how about ‘Star Chamber’? That’s got a ring to it!

2 Andrew_M_Garland 07.30.11 at 5:18 pm

Maybe “The Law” is only a soothing idea to help us bear up in an arbitrary society ruled by political power and whim.

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12/25/08 – Econlog.Econlib by Bryan Caplan

[edited] At the risk of offending many friends, I think the law is a shockingly phony discipline. Virtually everyone imagines that the law agrees with what they favor on non-legal grounds. Almost no one admits that many or most laws are so vague that there is no “fact of the matter” about what they mean.

Once in a while, a law professor has told me this verbatim, and then has gone back to arguing about the law. The philosopher in me insists, “If there’s no such thing as unicorns, we can’t argue about unicorns,” but the Great Unicorn Debate never stops.
=== ===

The Law is Going from Bad to Worse

3 prekdut 07.30.11 at 7:16 pm

haloo…Sure, why not? Then we can have secret trials. Maybe call them something snappy… hmmm… how about ‘Star Chamber’? That’s got a ring to it!

4 Bill Poser 07.30.11 at 9:24 pm

Since when are disciplinary proceedings open to the public? My understanding is that they are generally closed as it is, so the issue here is not the openness of the proceeding but what information is made public about the result.

It seems to me that there are circumstances where a sealed record is legitimate, namely cases in which the misconduct is not so unethical as to suggest a serious flaw of character and is due to circumstances that are not expected to recur. If a lawyer’s parents are killed in an accident, his dog dies, his wife leaves him, his 15-year old daughter gets pregnant and he becomes despondent, starts drinking, and neglects some cases and engages in minor improper mixing of funds, I don’t see why the record shouldn’t be sealed. If on the other hand he does something grossly unethical or demonstrates real incompetence and there are no such extenuating circumstances, if he is not permanently disbarred future clients have a right to know what happened.

5 Andrew_M_Garland 07.30.11 at 10:23 pm

Our legal system holds microwave manufacturers liable for the injury to dogs, when their owners put the dogs into the microwave to dry them. That is, unless the manufacturers anticipate and include a written warning not to do this. I assume this has the support of lawyers.

But, those lawyers are happy to hide their own faults, no disclosure necessary. And, Bill Poser wants to protect me from my own prejudices, hiding the faults of lawyers that he feels will not recur.

I wonder how many doctors have been held harmless, their records sealed, when they made some minor errors in surgery, because they started drinking, and neglected a case, and engaged in minor, improper identification of blood vessels and nerves?

I wouldn’t want a lawyer to, say, give up his practice while he recovered from devastating circumstances. He has to make a living after all, despite the malpractice placed onto his clients. It isn’t like that is grossly unethical.

6 gitarcarver 07.31.11 at 10:17 am

Bill,

You may have a legitimate point if not for the idea that trial lawyers have long pushed for all incidents – no matter what the outcome – in other professions be open to the public. If you are a plumber and someone makes a complaint about you to the state licensing board, the complaint doesn’t go away if the board decides in your favor even if they find there was not merit to the complaint at all. Doctors are held to the same standard. If a complaint is made, it is never wiped off the books. Police, restaurants, hair dressers, etc are all held to the idea that “letting the public know is a good thing.”

Much of that notification was pushed by lawyers as it makes suing people easier. So why shouldn’t lawyers divulge the same information they want every other profession to divulge?

7 John Burgess 07.31.11 at 12:23 pm

I surely want to know if a lawyer, under unbearable circumstances in his personal life, is not going to represent me with the ’110%’ promised. While it’s not a perfect predictor, past performance gives a guide and would likely send me looking for another attorney.

As others have noted, it seems that it’s only lawyers who get to keep skeletons in their closets, if the Bar Assoc. deems them to be itty-bitty skeletons. As Bar Associations also seem to overlook far greater misbehavior on the part of their members, I’m highly skeptical of any attempt to shield any lawyerly misconduct.

Give me the data and I’ll make my own decisions.

8 Ron Miller 08.01.11 at 8:51 pm

I’m not sure lawyers are the only ones keeping their skeletons in a closet. But I agree with most of the commenters here actually. Even it if were a good idea, the perception is not one that helps lawyers. Bill Posner’s point is a good one with the hypothetical he gives. But, ultimately, we can’t fashion rules around a hypothetical. People should be able to – as John suggests – get information to form a conclusion about a lawyer’s past disciplinary record that might inform their decision to hire that lawyer.

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