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Ethics Awareness, Education Up as Attorney Discipline Falls

Nov. 23, 2021, 9:45 AM

Heightened ethics awareness among lawyers and more emphasis on continuing education may be helping to reduce misconduct complaints and discipline in bigger states even as the attorney population rises, some experts say.

While data doesn’t point to a single reason for multi-year declines in complaints and sanctions reported by several states tracked by Bloomberg Law, the falloff coincides with an uptick in legal industry changes and other efforts to better address discipline.

California, Florida, Texas, Illinois, Ohio, and New Jersey were among those reporting continued declines in complaints and sanctions in their latest annual disciplinary reports. Data for New York, the state with the most lawyers, was uneven in key areas. Discipline was up slightly in Texas.

“Long-term trends in complaints about attorney misconduct and attorney discipline can be traced to shifts in the legal profession, the composition of the attorney population, and the State Bar’s efforts to prevent attorney misconduct,” the California State Bar concluded in its 2020 report.

Sanctions usually follow complaints made at least a year previous so the pandemic’s impact is not understood yet. Anecdotal reporting for 2020-21 suggests complaints temporarily dropped more sharply than usual in some states due to a falloff in legal activity.

Uneven Reporting

Lawyers overall appear to be heeding ethical mandates, but tracking trends is complicated by variations among states in what disciplinary information is made public and how it’s analyzed and presented. Jonathan Arons, a legal ethics adviser in San Francisco, said, for instance, that California isn’t clear enough on what constitutes a complaint.

Still, California reported its rate of discipline fell from 4 per 1,000 attorneys in 2011 to 1.4 last year. In Florida total discipline orders decreased steadily from 316 in 2016-17 to 224 in 2020-21, according to the bar.

New York has four grievance committees that report discipline for different regions, but there’s no standard template. The overall disciplinary numbers for the First Judicial Department that covers Manhattan and the Bronx, where data was updated and accessible, held steady even as the number of in-state attorneys increased from 175,195 in 2015 to 185,076 in 2020, according to New York’s attorney population reports.

Small Percentage

The lawyer population nationwide has increased by more than 8% to 1.3 million between 2011-21, according to the ABA, and very small percentage are investigated for misconduct or disciplined. Sanctions commonly run from license suspension to reprimand. Hundreds are disbarred nationally each year, the ABA says.

Headlines this past year highlighted sanctions against former New York Mayor and Donald Trump confidant Rudy Giuliani and other attorneys for pushing 2020 election fraud litigation. But disciplinary cases frequently involve small firms or solo practitioners. Illinois, for example, reported nearly half of 81 lawyers sanctioned in 2020 were solo practitioners.

Leslie Levin, an expert on ethical decision-making and lawyer discipline at the University of Connecticut School of Law, said individual clients in personal matters, including immigration and family law, typically file disciplinary complaints. Illinois reported that criminal law, domestic relations, and real estate grievances topped its list.

There are unusual cases like the attorney who accidentally brought a loaded gun into a court or the one whose practice was described by a court as “anarchy.” But many cases center around the same handful of ethical lapses.

Neglecting a client’s interest accounted for nearly a third of disciplinary cases in Ohio in 2020. Mismanaging client trust accounts and over-billing also made the list. The top area of misconduct by sanction in Texas was communication, at 28%, followed closely by “integrity” at 24%, and neglect at 23%.

Changing Profession

Most legal ethics experts were reluctant to cite specific reasons for declining discipline, but noted changes aimed at lawyers and the industry that could have an impact.

The direction may be “primarily due to lawyers and law firms having a better understanding and appreciation for the benefits of investing in risk management,” Kendra Basner, a discipline defense lawyer with O’Rielly & Roche in San Francisco, said of disciplinary figures in her state.

Experts in various states also cited more ethics education, greater attention paid to possible connections between substance abuse and misconduct, and tougher sanctions for violations that previously resulted in lighter penalties. More women in the profession may also play a role.

New York’s bar has made a “concerted effort” to offer attorneys resources and information on well being, including having active lawyer assistance programs, said Tyler Maulsby, an ethics attorney with Frankfurt Kurnit Klein & Selz in New York.

The legal profession, which has long emphasized work over quality of life, has only recently taken steps to address burnout and mental health issues, for instance. Attorney substance abuse is a well-known problem.

More than a quarter of lawyers disciplined in Illinois last year had at least one substance abuse or mental health issue. The Illinois disciplinary commission has a pretrial diversion program for lawyers who are at risk with alcohol, substance abuse, or other mental health problems, said Matthew Henderson of Hinshaw & Culbertson LLP in Chicago. It seeks to treat the underlying condition to allow a return to productive practice.

The growing proportion of women in the profession may also play a role. States, including California, Texas, and Illinois, report significantly fewer claims against women. In Texas, 79% of the 372 sanctions handed out in 2020-21 were for men, and 21% for women.

In California, older veteran attorneys are more likely to run afoul of ethics rules and the growing female population in the legal profession skews younger, the State Bar said. There are also fewer female solo practitioners.

“To the extent that these two factors lead to differential complaint and discipline rates between male and female attorneys, it’s a more a difference in their exposure to risks than it is in behavioral patterns,” the State Bar said.

Risk Management, CLE

Basner in California highlighted risk-management efforts. Liability insurers are offering free ethics hot lines and attorneys are being required to report their compliance with continuing legal education (CLE) requirements.

Mandatory ethics CLE requirement in Illinois has been a “critical factor in reducing disciplinary complaints,” said Henderson.

Brian Tannebaum, an ethics lawyer in Miami, said the decline in Florida could partly be due to the growth in a state Attorney Consumer Assistance Program which helps weed out complaints that don’t merit investigation.

Proactive state bars, courts, and grievance committees help keep attorneys in line. Tougher sanctions for conduct that previously led to a reprimand or short-term suspension also could be a deterrent in Florida, Tannebaum said.

Another potential explanation: fewer lawyer-client transactions as people needing help find attorneys are too expensive and opt for cheaper “do-it-yourself” options.

“Clients are getting priced out of the market” and end up representing themselves, said Thomas McGarry, head of Hinshaw & Culbertson’s Professional Responsibility, Professional Liability and Risk Management Practice Group.
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To contact the reporter on this story: Melissa Heelan in Washington at mstanzione@bloomberglaw.com

To contact the editors responsible for this story: Seth Stern at sstern@bloomberglaw.com; John Crawley at jcrawley@bloomberglaw.com

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