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When a lawyer runs afoul of the rules of professional conduct, there are consequences. Depending on the severity of the rule violation, discipline might consist of disbarment, suspension, reprimand (public censure) or admonition (private reprimand). What about being sent back to school for an ethics violation?
States frequently follow ABA standards, which permit “other sanctions and remedies” that are “consistent with the purposes of lawyer sanctions.” Disciplinary officials have attempted to impose such “other sanctions” with mixed results. These include pro bono or public service, participation in substance abuse programs like Alcoholics Anonymous, random drug testing and trust account audits.
One of the standards specifically allows “a requirement that the lawyer attend continuing education courses.” The theory behind this “other” type of punishment is to help the lawyer avoid repetition of the mistake that got him or her into trouble in the first place. Unfortunately, it seems that some states ignore such an obvious and useful response to certain types of attorney misconduct.
The latest example comes from Kentucky, where a lawyer got into trouble for conduct surrounding the negotiation of a settlement check. Although no theft was involved, the lawyer was very sloppy and deserved to be disciplined. The state’s bar association disciplinary office recommended a 60-day suspension. In addition, the lawyer was ordered to “attend and complete a business management education program/seminar/class processed through and approved by the office of Bar Counsel within one (1) year.”
This education requirement makes sense to me. The lawyer got into trouble because of bad business management practices. However, the Kentucky Supreme Court said “ordering a lawyer ‘back to school’ is simply not an appropriate disciplinary sanction.”
Even though the court acknowledged that sloppy business practices can lead to ethics violations, it determined that “it is not the mission of [the disciplinary system] to make sure that lawyers are fluent in business management or to police business practices directly.” The court permitted education requirements as a form of discipline only if the program is about ethics. It expressed fear that the existing system is ill-equipped to process or supervise a lawyer’s participation in such a non-ethics-related program.
Give me a break.
Following the court’s logic, it would be okay to order a lawyer to attend an approved CLE that describes all of the ways that a lawyer could violate certain ethics rules (as long as the subject was ethics), but it would not be okay to order a lawyer to attend a program teaching practices that could prevent future violations.
The court’s claimed inability to monitor such a remedy is a poor excuse. Wouldn’t it be a simple process for the disciplined lawyer to submit an affidavit of attendance along with a brochure describing the program? Shouldn’t it be easy for officials to determine if the program satisfies the intent of the disciplinary order? It would, and it should.
Regulators must recognize that although law is a profession, it is a business as well. When regulators ignore the business aspects of practice, it is the clients who suffer. And the disciplinary process, after all, is designed to protect the client.
Roy S. Ginsburg is an attorney coach who coaches lawyers one-to-one in the areas of business development, practice management and career development. He has practiced law for more than 25 years in large to small firms and in a corporate setting. He is currently an active solo with a part-time practice in legal marketing ethics and employment law.
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