The Process of Weeding Out

When I was a Deputy Trial Counsel,  I was taught that our mission was set forth in Standard 1.3:

1.3 PURPOSES OF SANCTIONS FOR PROFESSIONAL MISCONDUCT The primary purposes of disciplinary proceedings conducted by the State Bar of California and of sanctions imposed upon a finding or acknowledgment of a member’s professional misconduct are the protection of the public, the courts and the legal profession; the maintenance of high professional standards by attorneys and the preservation of public confidence in the legal profession. Rehabilitation of a member is a permissible object of a sanction imposed upon the member but only if the imposition of rehabilitative sanctions is consistent with the above-stated primary purposes of sanctions for professional misconduct.

Observing the functioning of the discipline system over the last two years, it seems another purpose should be added to any comprehensive list of the purposes of the discipline system.  That is to cull the herd. The government perceives that there are too many lawyers, and that a certain percentage of of those lawyers are “bad” lawyers who must be excised from the profession.  How will we determine who those lawyers are?  Any lawyer who faces discipline is a threat to the public, according to the Chief Trial Counsel.   Her proposal to brand lawyers on the internet as threats to the public no matter what the specifics of the alleged misconduct  would make even the lowest level of  discipline an effective disbarment for many practitioners.  The truth of “zero tolerance” is clear now.  If you deviate from the rules, regardless of the circumstances, we want you gone. It’s not exactly a new observation.  In the mid 1990’s, I broached the idea of just paying lawyers to leave, a flat fee of  something less than the average cost of disciplining a lawyer just to surrender their license.   They thought I was joking but I was half serious.  Even then the perception was that there were too many lawyers, long before the word “bubble” started to be bandied about. Deprofessionalism is another word that has used to describe the process that the bar is undergoing.   Deprofessionalism will be followed by depopulation was the lawyer bubble bursts, or more accurately, slowly deflates, although “slow” might be a relative term.    The interesting counter melody is the trend toward professional retrenchment represented by more aggressive disciplinary enforcement, including renewed interest in prosecuting attorneys who provided services to clients in other states, long after the trend toward liberal multi-jurisdictional practice rules seemed to have been established.   The lack of interest  by the California Supreme Court in enacting California’s version of the Model Rules three years after they were completed, and 12 years after the task of writing them began, is another sign.  Too lawyer-friendly for the current climate, too nuanced and difficult to enforce with those pages of comments. It’s anyone’s guess when the process of weeding out will reach equilibrium,  but my guess is that it won’t be too soon.   Maybe never.   Not many of thought we were signing on to a profession in perpetual flux but it may be the hardest task will be preserve what was good about the traditional practice of law from being washed away (assuming we can agree on what that is.)

One thought on “The Process of Weeding Out

  1. Hi David,

    Do you know the status of these unconstitutional rule changes? If they are enacted, a client can coerce an attorney with the mere threat of a bar complaint.

    Thanks.

    Bruce

    Bruce Jaques, Jr. http://www.sandiegocivilattorney.com

    JAQUES LAW OFFICE ~ A civil litigation practice emphasizing trial, arbitration & mediation in litigation practice areas including, but not limited to, contested real estate, business, corporate (including formation, maintenance and defense), defamation, contracts, and other civil litigation disputes.

    P.O. Box 1312 Vista, CA 92085-1312 Telephones: (760) 295-1311 (direct line), or (760) 484-4950 (cell) Fax: (760) 560-1616 E-mail: attorney.bruce@yahoo.com Website: http://www.sandiegocivilattorney.com

    >________________________________ > From: Kafkaesq >To: attorney.bruce@yahoo.com >Sent: Tuesday, June 25, 2013 2:37 PM >Subject: [New post] The Process of Weeding Out > > > > WordPress.com >David Cameron Carr posted: “When I was a Deputy Trial Counsel, I was taught that our mission was set forth in Standard 1.3: 1.3 PURPOSES OF SANCTIONS FOR PROFESSIONAL MISCONDUCT The primary purposes of disciplinary proceedings conducted by the State Bar of California and of sanc” >

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