Since most lawyers do their best to steer clear of the disciplinary system, many do not know how it actually works. Nonetheless, it is possible that you will find yourself in the crosshairs of the disciplinary system some day.
Each state has its own way of handling attorney discipline, and it is imperative you learn how your state takes in complaints, investigates and prosecutes cases, and issues sanctions.
Attorney Discipline Basics
No matter who is appointed to investigate attorney misconduct, every state system has some basic things in common. There is a body that takes in complaints, and that body will review every complaint it receives to determine if a violation may have taken place. If an ethical violation is possible based on the complaint, an investigation will follow. If the complaint fails to describe misconduct that may be a violation, the complaint will be closed. In some states, a complaint closed immediately after intake may not even be disclosed to you.
If an investigation is launched, you will be asked to respond. You may be asked for volumes of information and documents, or you may just have to write a brief explanation.
If the investigation reveals a probable violation, a prosecution will ensue. Following a successful prosecution, the appropriate authority will sanction you.
How a discipline system works is partly wrapped up in whether your state has an integrated bar. An integrated bar is a mandatory organization to which you must belong if you are going to practice law in the state. A slight majority of states have integrated bars. In those states, the discipline function will typically be handled by the bar along with things like admissions.
Although the bar may be in charge of discipline, the courts do play a role. In California, for instance, the integrated bar receives, investigates, and prosecutes attorney complaints. Ultimately, though, sanctions are meted out by the California Supreme Court.
Without an integrated bar, the admissions and discipline functions are typically handled directly by the courts. In a state without an integrated bar, the court will usually handle the entire disciplinary process from intake to sanction.
Models from Around the Country
Here are some examples of the various state discipline systems.
Discipline without an Integrated Bar (New York)
New York does not have an integrated bar. When you pass the bar exam, you are admitted by the Appellate Division of the Supreme Court in the department in which you live or work. Biennial dues are paid to the Office of Court Administration. You may choose to join the New York State Bar Association, but it is a voluntary, not regulatory, organization.
Just as courts handle admissions, they also handle discipline. Depending on where you practice, there will be a Disciplinary Committee or Grievance Committee overseen by the Appellate Division of the Supreme Court to take in complaints. The committee is made up of lawyers and non-lawyers, and it will review and determine whether to investigate allegations of attorney misconduct. Complaints with merit will be prosecuted by committee attorneys before the Appellate Division.
The committee in New York can actually issue a private sanction with a warning letter or admonition, but it must ask the Appellate Division to impose any public sanction including censure, suspension, or disbarment. When the committee seeks a public sanction, the Appellate Division appoints a referee to hold a trial-like hearing and issue a report. Then the report is reviewed by the committee, and its final recommendation is transmitted to the Appellate Division for action. (For more detail on New York’s process, the First Department has a great informational site.)
Discipline within an Integrated Bar (Georgia)
Georgia has an integrated bar, the State Bar of Georgia, which regulates attorney admissions and handles discipline (among other functions). It has a multi-tiered approach to attorney discipline.
When a disgruntled client first contacts the State Bar of Georgia with a complaint, the Consumer Assistance Program (CAP) evaluates the complaint and recommends resources for resolution. It may contact the attorney to assist in rectifying the situation, but it does not investigate allegations of misconduct. Matters resolved at the CAP level are not on an attorney’s disciplinary history.
If the matter is deemed more serious than what CAP can resolve, it will be referred to the Office of General Counsel (OGC) of the State Bar of Georgia. The Supreme Court of Georgia is the ultimate sanctioning authority, but OGC acts at the Supreme Court’s behest to prosecute attorney misconduct. OGC reviews and initially investigates complaints, and if the complaint is well-founded it will be forwarded to the State Disciplinary Board.
The State Disciplinary Board consists of two panels: an Investigative Panel and a Review Panel. The Investigative Panel reviews the facts underlying the complaint, and it has the power to issue admonitions and reprimands, hold hearings, issue sanctions, and send cases to the Supreme Court for proceedings by a special master. The Review Panel has the power to receive special master reports and recommend that the Supreme Court impose discipline.
Discipline within an Integrated Bar (California)
California has an integrated bar, the State Bar of California, which handles admissions and discipline. An attorney in the state must belong to the State Bar of California in order to practice.
The State Bar of California takes in attorney complaints, investigates them, prosecutes them, and hears cases in its unique State Bar Court. The State Bar Court has a Hearing Department that holds trials on disciplinary matters and a Review Department that hears appeals. The decisions made by the State Bar Court are recommendations for attorney discipline. These recommendations are then sent to the California Supreme Court, which can issue sanctions.
Learning About Your State
Odds are your state’s disciplinary system resembles one of these models. To learn more about your state’s system before you find yourself a part of it, look to the body that handles admissions, as it probably also handles discipline.
When learning about your state’s disciplinary system, you may discover valuable resources you otherwise would have missed, such as Georgia’s CAP. While no lawyer intends to get involved with the disciplinary system as a respondent, knowing the system is always a plus.
Featured image: “closeup folder complaints with business people meeting” from Shutterstock.