Discipline, Sanction, Disqualification

The Model Rules describe these types of misconduct that will render an attorney subject to discipline:

1. Violating or attempting to violate a rule
2. Aiding or inducing a lawyer to violate a rule
3. Taking advantage of a third party to violate a rule
4. Fraudulent, dishonest, or deceitful conduct, within and outside the practice of law.
5. Committing a crime demonstrating an unfitness to practice law
6. Conduct that prejudices the administration of justice
7. Implying or claiming an ability to improperly influence a government official or agent
8. Knowingly assisting a judge or judicial officer in illegal conduct or conduct in violation of the Judicial Code.

The most common penalties for violating ethical rules are disbarment, suspension, and public or private censure.

Disbarment is the revocation of an attorney’s state license, permanently rendering the attorney unqualified to practice law. Depending on the offense and the ethics board’s rules, an attorney might be entitled to reapply for admission to a state bar following disbarment. Often, reapplication is a painful process. Attorneys might be required to submit to an intense scrutiny of their personal life and financial matters before they are re-admitted.

Suspension is a temporary revocation of a license, rendering an attorney unqualified to practice for a finite period.

Public or private censure is a reprimand by a body administering the ethics rules. Some refer to this as a “slap on the wrist,” but clients might be inclined to find alternate representation if they know their attorney was censured. An attorney may agree to be censured in lieu of undergoing a formal and public ethical investigation and hearing. Such agreement might mandate certain conditions for the attorney to fulfill, such as participation in public ethics programs and seminars. 

Sanction, another form of discipline, occurs in the context of litigation. In Federal court, a violation of Rule 11 of the Federal Rules of Civil Procedure occurs when an attorney knowingly presents to the court a pleading, written motion, or other paper for an improper purpose.

Examples of Rule 11 violations include frivolous discovery requests made for the purpose of harassment, and assertions made without evidentiary support. If the proponent of the falsification does not withdraw the paper within 21 days, the judge might impose sanctions. These sanctions may involve a fine for unnecessary court costs, a demand for forfeiture of an attorney’s fees, and may even include jail time.

EXAMPLE: Phriv, an attorney for the defense in a malpractice suit, files a discovery request with the court for the plaintiff to provide voluminous and detailed papers accounting for plaintiff’s lifetime expenses. Phriv has made similar requests in the past, annoying both the opposition and the judge, who normally is an easygoing guy. The judge knows Phriv is taking advantage of him and is attempting to drag the case on until the plaintiff spends all the money he has allocated for trying the case. 

On these facts, the judge will be empowered by the rules of procedure to impose a Rule 11-type sanction on Phriv, who filed a frivolous discovery request just to harass the opposition. Court dockets are filled to the brim and cases may take a tremendous amount of energy and effort for all parties involved. Attorneys who make frivolous discovery requests are essentially interfering with the administration of justice. Such conduct by an officer of the court is simply intolerable. 

Disqualification from representing a client in a particular matter may occur due to a conflict of interest. Later in the course we will explore in some detail what it means to be in conflict of interest. Briefly, a conflict may arise due to an attorney’s prior representation of a party who later becomes an adversary. If the attorney obtained confidential information during the course of the prior representation that could be detrimental to his former client in the present case, that attorney may be subject to disqualification.

Although each state and federal court system is considered autonomous for purposes of attorney admission and discipline, discipline administered in one state will often be given effect by another state. This is known as “comity,” or giving “full faith and credit” to another state’s determinations. Note, however, that foreign states will generally make an independent evaluation of an attorney’s conduct when the attorney has been disciplined in another state.

Ethics committees may impose restrictions upon a disciplined attorney’s future activities. Attorneys may be required to practice under the supervision of another attorney. They may be required to submit to periodic reports on their progress. Suspended or disbarred attorneys are usually required to provide notice to clients and others. A trustee may be appointed to control the attorney’s legal affairs and protect clients.