In recent years, a number of the nation’s most famous attorneys have been facing discipline for alleged wrongdoing in and out of court, with organizations arguing for their disbarment.
Despite these high-profile instances, however, attorney disbarment is exceedingly rare.
But it’s still useful to clarify what disbarment means and the conduct that can result in disbarment and other discipline.
Disbarment Ends an Attorney’s Career – But Not Always Permanently
Most lawyers are capable and ethical, but every state has some version of disbarment, meaning attorneys lose their licenses and can no longer practice law. It’s the legal career version of the death penalty, says Stacey Best, executive director of Lawyers Concerned for Lawyers who previously served for 18 years as assistant bar counsel in Massachusetts’ Office of Bar Counsel.
Nevertheless, disbarment does not automatically result in a permanent end to an attorney’s legal career. In all but eight states, disbarred attorneys can petition to regain their licenses. The process varies by state, but disbarred attorneys usually must wait at least five years before requesting readmission, and readmission is not guaranteed.
Additionally, disbarment in one state does not necessarily prevent an attorney from practicing in the other state.
Suspensions Are More Than a Slap on the Wrist
While the public may think a suspension is a slap on the wrist compared to a disbarment, that is not the case. In practice, there may not be much functional difference between a suspension and a disbarment, says Leslie Levin, Hugh Macgill professor of law at the University of Connecticut School of Law.
In both situations, the punishment can be the same: An attorney may be ordered to shut down their practice and have to wait years to see if their license is restored. Therefore, the main difference is sometimes more about the stigma of a disbarment rather than the actual impact on an attorney’s ability to practice law, Levin says.
The Basics of the Disbarment Process
The process for disbarment varies depending on the state, but the basic process is that a disciplinary agency receives thousands of complaints each year. So the agency’s attorneys have discretion over which cases they pursue. Having investigated a complaint, bar counsel may determine the most appropriate form of discipline – usually a private reprimand.
In egregious cases, the proceedings may continue to a hearing, with the bar counsel presenting evidence and arguing points of law, while the accused attorney refutes the allegations.
In a disciplinary proceeding, those who decide if discipline should be issued are typically lawyers or judges, Best says.
The system is more professionalized than it was decades ago, but lawyers and judges can still be sympathetic and reticent to sanction their peers, Levin says.
Solo Attorneys and Small Firms Are the Usual Focus for Disciplinary Proceedings
State attorney discipline systems are focused on aiding individual clients with complaints against attorneys – who are frequently solo practitioners or small law firms, Levin says.
There’s a presumption that companies have ongoing needs for legal representation. Therefore, the threat of losing regular clients to other firms will push large firms to provide better service. At the same time, larger firms are presumed to have processes that prevent common ethical violations.
By contrast, individual people usually hire solo lawyers or small firms, facing high-risk issues that can irrevocably change their lives, such as divorce battles, physical injury or workers’ compensation claims, landlord-tenant disputes, criminal defense cases, and immigration petitions, she says.
The disciplinary programs therefore help individuals more vulnerable to attorneys’ malfeasance and, at the same time, are less likely to have any other recourse, Levin says.
Types of Misconduct That Can Result in Disbarment
Judges typically handle attorneys’ in-court misconduct by issuing sanctions rather than reporting them to the bar, and the bar discipline system is primarily set up to respond to clients’ complaints about their own lawyers. When discipline is taken, it’s usually in the form of a private reprimand, says Gillian Feiner, senior counsel for States United Democracy Center, a nonpartisan organization advancing free, fair and secure elections.
However, disbarment is the presumptive form of discipline for an attorney who steals clients’ money, Best says.
Disbarment is more likely when the attorney committed fraud or serious dishonesty, particularly in front of a tribunal or to a client. Similarly, priority may be given to cases where an attorney is convicted of a crime of moral turpitude, Levin says.
Priorities also change in response to society’s changing values and when there’s a belief that tightening down on types of cases will help the profession as a whole, Best says.
For example, in Massachusetts, there has been an increased focus on violations relating to the administration of justice, such as when prosecutors engage in racist behavior.
And while, in the past, an attorney’s drunk driving or domestic violence would probably not have led to sanctions (because they were seen as unrelated to the attorney’s legal work), they now might result in discipline, Best says.
Why Reported Complaints Do – or Don’t – Lead to Disciplinary Action
One significant factor in determining disbarment is how much harm the lawyer caused.
Disbarment is more likely when the attorneys’ malfeasance goes beyond a single instance and has had a systemic impact, Best says.
Best’s last case as a bar counsel involved prosecutors in a scandal with a Massachusetts drug lab’s mishandling of thousands of criminal cases. In that case, the prosecutors were alleged to have failed to disclose exculpatory information to defense counsel for years.
But in other instances, bar counsel – especially less experienced litigators – may choose cases because the facts can be easily proven, such as when an attorney stole money and the case can be made with accounting records, Best says.
Disbarment and the 2020 Presidential Election
All attorneys – even private ones – are officers of the court who have taken an oath to uphold the rule of law.
Attorneys cannot interfere with the administration of justice. For example, they must be truthful. They cannot engage in deceitful conduct when representing their clients. They cannot file false or meritless pleadings. Therefore, since no one is above the law, the bar has to discipline lawyers for bad faith conduct, Feiner says.
The reality is that the system, however, is set up to compensate clients for the wrongdoing of their own lawyers, not to address a more systemic abuse of the legal process, she says. It’s not even clear who should be filing such complaints.
To that end, the organization States United has filed bar complaints against a number of attorneys who represented former President Donald J. Trump during his efforts to discredit the 2020 presidential election. States United has alleged that these attorneys have engaged in wrongdoing, such as filing false and frivolous complaints in court and providing false and misleading legal advice.
Feiner has heard complaints about the length of the process but notes that some state bars may have already privately investigated or disciplined attorneys without the public knowing.
And the delays should not be taken as a lack of seriousness by the bars. Instead, these cases are far more complicated and intense than a run-of-the-mill bar complaint, so state prosecutors and bars will want to investigate them until they are airtight, Feiner says.
The wheels of justice are slow, but it’s critical to get these cases right. And so far, there is momentum. Attorneys are being held accountable. And that’s what matters, she says.
